SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: 30 July, 1999
United Pan-Europe Communications N.V.
(Exact Name of Registrant as Specified in Charter)
The Netherlands 000-25365 98-0191997
(State or other jurisdiction (Commission File (IRS Employer
of incorporation) Number) Identification #)
Fred. Roeskestraat 123, P.O. Box 74763
1070 BT Amsterdam, The Netherlands
(Address of Principal Executive Office)
(31) 20-778-9840
(Registrant's telephone number, including area code)
Item 2. Acquisition or Disposition of Assets
(a) On 30 July 1999, the Company acquired from certain sellers
represented by EQT Scandinavia Limited all of the capital stock
of NBS Nordic Broadband Services AB, which operates a cable
television system in Stockholm, Sweden, for a purchase price of
$397.0 million (NLG817.8 million), after adjustments for debt and
cash as of July 31, 1999. The purchase price for the capital
stock was determined by negotiation between the Company and EQT
Scandinavia Limited. $100.0 million (NLG206.0 million) of the
purchase price was paid
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in the form of a one year note with interest at 8% per year and
$297.0 million (NLG611.8 million) was paid in cash at closing.
The cash portion of the purchase price was provided by the
closing of the sale of the Company's Senior Notes and Senior
Discount Notes due 2009 on 30 July 1999. The note will
automatically convert into the Company's Ordinary Shares B in the
event of a public equity offering of those shares. If no public
equity offering occurs, the Company will have the option, at
maturity of the note, to pay the note in either cash or stock.
The acquisition will be accounted for under the purchase
accounting method. As a result of the acquisition of the stock,
the Company acquired a cable television system in Stockholm,
Sweden. The Company intends to continue to operate the system and
to offer its digital video, telephone and Internet/data services
over the system.
(b) On 6 August 1999, the Company's wholly owned subsidiary, Bison
Acquisition Corp., completed a tender offer for all outstanding
shares of the common stock of @Entertainment, Inc. (Nasdaq: AETN)
at a price of $19.00 per share in cash. Approximately 33,701,073
shares were tendered pursuant to the offer, which expired at
12:00 midnight, New York City time, on Thursday, August 5, 1999.
On 9 August 1999, UPC merged Bison Acquisition Corp. into
@Entertainment and disbursed cash to pay the remaining
@Entertainment stockholders the same price for each share held.
Holders of @Entertainment stock options received the same price
less the exercise prices of their options. The purchase price for
@Entertainment totaled $807.0 million (NLG1654.4 million). It
will be accounted for using the purchase method of accounting.
The purchase price was provided by the closing of the sale of the
Company's Senior Notes and Senior Discount Notes due 2009 on 30
July 1999.
Item 5. Other Events.
- ----------------------
(a) On 30 July 1999, the Company also acquired 847,680 shares of the
common stock of SBS Broadcasting S.A. ("SBS"), which operates a
programming business, primarily in Sweden and in eight other
countries in Europe, by converting publicly traded Convertible
Subordinated Debentures Due 2005 of SBS that were called for
redemption by SBS and acquired by the Company. On 6 August 1999,
the Company acquired an additional 2,152,320 shares of SBS common
stock from SBS. The total cost to the Company for the entire
3,000,000 shares (13.4%) acquired was $100.2 million (NLG204.9
million). The Company will account for the investment in SBS
under the equity method of accounting. The purchase price for the
capital stock was determined by negotiation between the Company
and SBS. The purchase price was paid in cash at closing with
proceeds remaining from the Company's initial public offering.
(b) On July 27, 1999, a newly formed subsidiary of the Company, UPC
Facility B.V., Telekabel Wien and Janco Multicom and Bank of
America International Limited, CIBC World Markets plc, Citibank
N.A., MeesPierson N.V., Paribas, The Royal Bank of Scotland plc,
Toronto Dominion Bank Europe Limited, and The Toronto-Dominion
Bank, as Facility Agent and Security Agent, executed a Loan and
Note Issuance Agreement for a euro 1 billion (NLG2.2 billion)
multicurrency senior secured credit facility (the "Senior Credit
Facility") to replace the Company's revolving credit facility.
The facility is guaranteed by certain of the Company's
subsidiaries. Until the earlier of October 31, 1999 and the
completion of the syndication of the Senior Credit Facility,
availability under the Senior Credit Facility is limited to euro
500 million and such amount may not be used to finance any
acquisitions.
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(c) On 30 July 1999, the Company completed the sale of $1.5 billion
of notes. The offering consisted of three tranches: $800 million
of ten year Senior Notes due 2009 with a 10-7/8% coupon; 300
million Euros of ten year Senior Notes due 2009 with a coupon of
10-7/8%; and $735 million aggregate principal amount of ten year
12-1/2% Senior Discount Notes due 2009. The Senior Discount Notes
were sold at 54.521% of the face amount yielding gross proceeds
of $400 million and will accrue but not pay interest until 2004.
Total gross proceeds from the sale of the Senior Notes and Senior
Discount Notes were approximately $1.5 billion. $800.0 million of
Senior Note proceeds were swapped into euros to minimize the
Company's currency and interest rate exposure.
Item 7. Financial Statements and Exhibits
(a) As of the date of this Form 8-K, it is impractical for the
Company to provide the financial statements for the acquisitions
described in Item 2 above, required pursuant to Article 3 of
Regulation S-X. In accordance with Item 7(a) of Form 8-K, such
financial statements will be filed by amendment to this Form 8-K.
(b) As of the date of this Form 8-K, it is impractical for the
Company to provide the pro forma financial information required
pursuant to Article 11 of Regulation S-X. In accordance with Item
7(b) of Form 8-K, such pro forma financial information will be
filed by amendment to this Form 8-K.
(c) Exhibits
2.1 Investment Agreement between SBS BROADCASTING SA and Registrant dated
June 29, 1999
2.2 Agreement and Plan of Merger among @Entertainment, Inc., United Pan-Europe
Communications N.V. and Bison Acquisition Corp. dated as of June 2, 1999
2.3 Stockholders Agreement among @Entertainment, Inc., United Pan-Europe
Communications N.V., Bison Acquisition Corp. and Morgan Grenfell
Development Capital Syndications Limited dated as of June 2, 1999
2.4 Stockholders Agreement among @Entertainment, Inc., United Pan-Europe
Communications N.V., Bison Acquisition Corp. and Morgan Grenfell
Development Capital Syndications Limited dated as of June 2, 1999
2.5 Share Purchase Agreement between the Sellers represented by EQT
Scandinavia Limited and United Pan-Europe Communications N.V.
4.1 Indenture between Citibank, N.A. as trustee and Registrant
dated 30 July 1999 (Senior Notes)
4.2 Indenture between Citibank, N.A. as trustee and Registrant
dated 30 July 1999 (Senior Discount Notes)
4.3 Loan and Note Issuance Agreement between UPC Facility B.V., Telekabel Wien
and Janco Multicom and Bank of America International Limited, CIBC World
Markets plc, Citibank N.A., MeesPierson N.V., Paribas, The Royal Bank of
Scotland plc, Toronto Dominion Bank Europe Limited, and The Toronto-
Dominion Bank, as Facility Agent and Security Agent
SIGNATURES
----------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf of the
undersigned thereunto duly authorized.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
DATE: 13 August, 1999 By: /s/ Ray Samuelson
---------------------
Ray Samuelson
Managing Director of
Finance and Accounting
Exhibit 2.1
CONFORMED COPY
INVESTMENT AGREEMENT
by and between
SBS BROADCASTING S.A.,
UNITED PAN-EUROPE COMMUNICATIONS N.V.
and
UNITED INTERNATIONAL HOLDINGS, INC., d/b/a UNITEDGLOBALCOM
Dated as of June 29, 1999
================================================================================
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS......................................................2
ARTICLE II
PURCHASE OF COMMON SHARES........................................2
Section 2.1. Redemption of Convertible Debentures;
Conversion into Common Shares......................2
Section 2.2. Private Placement of Common Shares..........................5
Section 2.3. Standstill..................................................6
Section 2.4. Exceptions to Standstill and Transfer
Restrictions....................................8
Section 2.5. Registration Rights.........................................9
ARTICLE III
SETTLEMENT OF CONVERTIBLE DEBENTURES; CLOSING OF
PRIVATE PLACEMENT SHARES; CONDITIONS............................11
Section 3.1. Purchase of Convertible Debentures and
Issuance of Common Shares....................11
Section 3.2. Closing of Private Placement Shares........................12
Section 3.3. Conditions to Obligations of United
Parties......................................12
Section 3.4. Conditions to Obligations of Company.......................15
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..................................17
Section 4.1. Representations and Warranties of
Company ....................................................17
(a) Corporate Existence ..............................................17
(b) Authorization; Enforcement..........................................18
(c) Compliance with Obligations.........................................19
(d) Consents and Approvals..............................................19
(e) Exchange Act Reports ..............................................20
(f) Outstanding Capital Stock...........................................21
(g) Convertible Debentures..............................................22
(h) Listing of Common Shares............................................22
Section 4.2. Representations and Warranties of United
Parties.............................................22
(a) Corporate Existence ..............................................23
(b) Authorization; Enforcement..........................................23
(c) Compliance with Obligations.........................................23
(d) Consents and Approvals..............................................24
(e) Investor Exchange Act Reports.......................................24
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(g) Status and Investment Intent........................................26
(h) Financial Advisors and Brokers......................................26
(i) Ownership of Common Shares..........................................26
(j) Permitted Basket Investments and Sale of
Qualified Capital Stock.....................27
ARTICLE V
COVENANTS.......................................................27
Section 5.1. Covenants of Company.......................................27
(a) Registration Rights ..............................................27
(b) Conversion Rights and Sale of Common
Shares ..............................................27
(c) Information ..............................................28
(d) Director of Company ..............................................28
(e) Actions Affecting Share Price.......................................30
(f) Dividends or Stock Splits...........................................31
(g) Listings Outside the United States..................................31
Section 5.2. Covenants of Parent and Investor...........................32
(a) Transfers ..............................................32
(b) Voting of Common Shares and Other Voting
Securities..................................32
(c) Actions Affecting Share Price.......................................33
(d) Permitted Investments ..............................................34
ARTICLE VI
FURTHER AGREEMENTS..............................................36
Section 6.1. Cooperation................................................36
Section 6.2. Fees and Expenses..........................................36
Section 6.3. Publicity..................................................36
ARTICLE VII
TRANSFER RESTRICTIONS...........................................37
Section 7.1. Transfer Restrictions......................................37
Section 7.2. Company's Right of First Refusal...........................38
ARTICLE VIII
MISCELLANEOUS...................................................41
Section 8.1. Termination................................................41
Section 8.2. Survival of Representations and
Warranties...............................................43
Section 8.3. Legend ....................................................43
Section 8.4. Severability...............................................44
Section 8.5. Specific Enforcement.......................................44
Section 8.6. Entire Agreement...........................................45
Section 8.7. Counterparts...............................................45
Section 8.8. Notices....................................................45
Section 8.9. Waivers....................................................47
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Section 8.10. Beneficial Ownership......................................47
Section 8.11. Adjustment of Amounts of Common
Shares..................................................48
Section 8.12. Submission to Jurisdiction; Consent to
Service of Process............................48
Section 8.13. Headings..................................................49
Section 8.14. Successors and Assigns....................................49
Section 8.15. Governing Law.............................................50
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EXHIBITS
1 Definitions
2 Registration Rights
3 Form of Certificate of Officers of Company,
pursuant to Section 3.3(iii) of the Agreement
4A Form of Opinion of Arendt & Medernach, pursuant
to Section 3.3(iv) of the Agreement
4B Form of Opinion of H.A. Knight, pursuant to
Section 3.3(iv) of the Agreement
5 Form of Letter Agreement, pursuant to Section
3.3(vi) of the Agreement
6A Form of Certificate of Officers of Parent,
pursuant to Section 3.4(iii) of the Agreement
6B Form of Certificate of Officers of Investor, pursuant to
Section 3.4(iii) of the Agreement
7A Forms of Opinions of Clifford Chance, pursuant to Section
3.4(iv) of the Agreement
7B Form of Opinion of Holme Roberts & Owen LLP, pursuant to
Section 3.4(iv) of the Agreement
8 Articles of Incorporation of Company
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INVESTMENT AGREEMENT, dated as of June 29, 1999 (the
"Agreement"), by and between SBS Broadcasting S.A., a company organized under
the laws of Luxembourg (the "Company"), on the one hand, and United Pan-Europe
Communications N.V., a public corporation organized with limited liability under
the laws of The Netherlands (the "Investor"), and United International Holdings,
Inc., a Delaware corporation doing business as UnitedGlobalCom and the holder of
approximately 62.5% of the outstanding capital stock of the Investor (the
"Parent", and together with the Investor, the "United Parties").
WHEREAS, the Company and the Investor want to strengthen their
existing relationship, and are currently discussing pursuing additional business
opportunities together, including broadcasting or programming ventures in their
respective areas of operation;
WHEREAS, the Company and the United Parties want to provide
for the acquisition by the Investor of up to 20% of the outstanding share
capital of the Company, subject to the terms and conditions provided herein;
WHEREAS, the Company wants to redeem $155,250,000 aggregate
principal amount of its 7.25% Convertible Subordinated Debentures Due 2005 (the
"Convertible Debentures"), issued under an Indenture, dated as of August 2, 1995
(the "Indenture"), between the Company and State Street Bank and Trust Company,
as Trustee (the "Trustee"), which are convertible, at the option of the holder
thereof, into Common Shares;
WHEREAS, in order to acquire Common Shares, the
Company and the United Parties want the Investor to provide a
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backstop facility to purchase Convertible Debentures that would otherwise be
tendered for redemption, to convert any such Convertible Debentures into Common
Shares and to fund the redemption of any Convertible Debentures actually
redeemed in exchange for the issuance of Common Shares by the Company; and
WHEREAS, if sufficient Common Shares are not acquired by the
Investor pursuant to the backstop facility, the Company and the United Parties
want the Investor to acquire by private placement a number of Common Shares
sufficient to bring the aggregate number of Common Shares owned by it up to
3,000,000 Common Shares;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Unless otherwise indicated, defined terms in this Agreement
and in the Exhibits to this Agreement have the meanings assigned to them in
Exhibit 1.
ARTICLE II
PURCHASE OF COMMON SHARES
Section 2.1. Redemption of Convertible Debentures;
Conversion into Common Shares. Subject to the terms and conditions stated
herein, the Company and the United Parties agree as follows:
(a) In connection with the redemption by the Company of the
Convertible Debentures, the Investor agrees to make arrangements
whereby holders of Convertible Debentures may, should they so elect,
sell their Convertible Debentures to the Investor following notice of
such
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redemption and prior to the close of business (at the place where the
Convertible Debentures may be presented for conversion) on the
redemption date specified in such notice (the "Expiration Time"). Such
sales shall be at the Redemption Price then applicable under the
Indenture, plus accrued interest from the first preceding interest
payment date under the Indenture to the date of redemption (the
"Redemption Consideration"). In the event that any holder tenders its
Convertible Debentures for redemption and not for purchase, the
Investor agrees that the Redemption Consideration deposited by it with
the Purchase Agent pursuant to Section 3.1 allocable to such
Convertible Debentures shall be applied by the Trustee to the
redemption of such Convertible Debentures in exchange for the issuance
by the Company of Common Shares pursuant to Section 3.1. The obligation
of the Investor to purchase such Convertible Debentures and provide
funds for such redemption is referred to hereinafter as the "Backstop
Facility". The Investor hereby authorizes the Company to advise holders
of Convertible Debentures of this Agreement and of any agreement
entered into between the Investor and the Purchase Agent (as defined
below) in any notice of redemption or other similar notice or
communication regarding the redemption mailed or published by the
Company. The notice of redemption to holders of Convertible Debentures
shall provide that in the event any holder does not surrender the
Convertible Debentures held by it for redemption, purchase or
conversion into Common Shares prior to the Expiration Time, then such
Convertible Debentures shall be deemed to have been tendered for
purchase by the Investor.
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<PAGE>
(b) The Investor agrees to appoint State Street Bank and Trust
Company as its agent (the "Purchase Agent") to accept tenders of
Convertible Debentures by holders. Immediately following payment by the
Investor for any Convertible Debentures tendered to the Purchase Agent
pursuant to Sections 2.1(a) and 3.1 and prior to the Expiration Time,
the Investor shall give the conversion notice required by the Indenture
to the Conversion Agent requesting that all Convertible Debentures
purchased by the Investor be converted into Common Shares in accordance
with the Indenture, and shall instruct the Purchase Agent to surrender
to the Conversion Agent all such Convertible Debentures. The equivalent
price per Common Share paid by the Investor for the Common Shares
acquired pursuant to the Backstop Facility, calculated based on the
total Redemption Consideration paid by the Investor, is referred to
herein as the "Backstop Price".
(c) If the number of Common Shares acquired by the Investor
pursuant to paragraphs (a) and (b) above results in the United Group
having direct or indirect beneficial ownership, immediately following
acquisition of such Common Shares, of Common Shares or other Voting
Securities in excess of the Standstill Amount, the Company shall,
within twelve (12) months following the Expiration Time, purchase or
arrange for the purchase from the Investor, at a price per Common Share
equal to the price determined in accordance with paragraph (d) below, a
number of Common Shares sufficient to reduce the total number of Common
Shares and other Voting Securities beneficially owned directly or
indirectly by the United Group to a number that immediately following
such purchase is not more than
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the Standstill Amount, provided that the Company shall have no
obligation to purchase or arrange for the purchase of Common Shares
held by the United Group pursuant to this paragraph (c) if the United
Group is required to sell or transfer Common Shares pursuant to Section
7.1 because the Company has been designated a Restricted Affiliate and
is still so designated on August 31, 1999.
(d) The price per Common Share to be paid by the Company to
the Investor pursuant to any repurchase under paragraph (c) above shall
be equal to (X) the Backstop Price plus (Y) interest accrued on such
price at an annual rate of 7 1/4% from and excluding the date of
acquisition of the Common Shares pursuant to the Backstop Facility to
and including the date of purchase under paragraph (c).
Section 2.2. Private Placement of Common Shares. If,
immediately following the conversion into Common Shares of all Convertible
Debentures (if any) purchased by the Investor prior to the Expiration Time or
the issuance of Common Shares by the Company in exchange for Redemption
Consideration paid by the Investor for Convertible Debentures that are redeemed
and not purchased (but at no time thereafter), the United Group shall have
direct or indirect beneficial ownership of less than 3,000,000 Common Shares,
the Company agrees to issue and sell to the Investor, and the Investor agrees to
purchase from the Company, on and subject to the terms and conditions set forth
in this Agreement, at a price per Common Share of $35.25, a number of Common
Shares (the "Private Placement Shares") sufficient to bring the total number of
Common Shares beneficially owned directly or indirectly by the United Group,
including any Common Shares otherwise owned by the United
5
<PAGE>
Group, to 3,000,000 Common Shares, subject to adjustment of such number pursuant
to Section 8.11 (the "Minimum Stake").
Section 2.3. Standstill.
(a) During the period from the date hereof until December 29,
2001 (the "Standstill Period"), the United Parties agree that the
United Group shall not: (i) obtain direct or indirect beneficial
ownership, or cause or permit any agent to obtain beneficial ownership
on its behalf, of any Common Shares or any other Voting Securities, or
any securities convertible into or exchangeable for Common Shares or
such Voting Securities; or (ii) take any action intended to result in
the direct or indirect beneficial ownership by the United Group or by
any agent on its behalf of any Common Shares or other Voting
Securities, or any securities convertible into or exchangeable for
Common Shares or such Voting Securities; in each case if such
acquisition or action would result in direct or indirect beneficial
ownership by the United Group or by any agent on its behalf of Common
Shares or other Voting Securities, or any securities convertible into
or exchangeable for Common Shares or such Voting Securities, that taken
together would exceed the Standstill Amount, except to the extent
Common Shares in excess of the Standstill Amount are acquired in
accordance with and subject to the terms set forth in Section 2.1
above.
(b) In addition, if at any time during the Standstill Period
the Company expects that as a result of a proposed repurchase of Common
Shares or other Voting Securities by the Company the United Group would
have
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direct or indirect beneficial ownership of Common Shares or other
Voting Securities that would exceed the Standstill Amount, the Company
shall so notify the United Parties. If such repurchase offer is made
generally to holders of Common Shares or other Voting Securities (if
any) held by the United Group, the United Parties agree to tender or
cause to be tendered, and the Company agrees to repurchase, at a price
per Voting Security that is no less favorable than the price offered to
other holders of Voting Securities, a sufficient number of Common
Shares or other Voting Securities held by the United Group such that
the United Group's direct or indirect ownership of Voting Securities
immediately following such repurchase does not exceed the Standstill
Amount. If such repurchase offer is made only to specific Persons
holding Common Shares or other Voting Securities, the United Parties
agree to sell or cause to be sold, and the Company agrees to
repurchase, a sufficient number of Common Shares or other Voting
Securities (if any) held by the United Group such that the United
Group's direct or indirect ownership of Voting Securities immediately
following such repurchase does not exceed the Standstill Amount,
provided that any repurchase of Common Shares or other Voting
Securities by the Company pursuant to this sentence shall be at a price
per Voting Security that is equal to the weighted average price per
Voting Security paid by the Company to other Persons in connection with
such repurchase.
(c) Any acquisition of Common Shares by the United Group
during the Standstill Period other than pursuant to the Backstop
Facility or at the Private Placement Closing shall be in open market
transactions for cash.
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Section 2.4. Exceptions to Standstill and Transfer
Restrictions. The provisions set forth in Sections 2.3 and 7.1 shall terminate
immediately if: (i) a tender or exchange offer is made by any Person or 13D
Group (as hereinafter defined) to acquire Common Shares or other Voting
Securities that, if added to the Voting Securities (if any) already owned by
such Person or 13D Group, would represent more than the greater of (X) 10% of
the total combined voting power of all Voting Securities then outstanding
(exclusive of treasury Voting Securities held by the Company) and (Y) the
percentage that the voting power represented by the Common Shares and other
Voting Securities directly or indirectly beneficially owned by the United Group
or by any agent on its behalf bears to the total combined voting power of Voting
Securities then outstanding (exclusive of treasury Voting Securities held by the
Company) (the "Threshold Amount"); (ii) Voting Securities and/or Acquisition
Rights have been acquired subsequent to the date hereof such that any Person or
13D Group (not including any such Person or 13D Group whose shareholding exceeds
the Threshold Amount at the date hereof) directly or indirectly beneficially
owns, or becomes entitled to beneficially own, Voting Securities and/or
Acquisition Rights representing voting power in excess of the Threshold Amount;
or (iii) any Person or 13D Group (not including institutional investors holding
Voting Securities and/or Acquisition Rights as investments in the ordinary
course of their business) whose shareholding exceeds the Threshold Amount at the
date hereof acquires any Voting Securities and/or Acquisition Rights (not
including rights issued under any employee stock option plan) that (X) exceed
one (1) percent of the aggregate combined voting power of all Voting Securities
then outstanding (exclusive of treasury Voting Securities held by the Company)
and (Y) taken together with that Person's or
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13D Group's shareholding at that time represents voting power that exceeds the
Threshold Amount; provided in the case of (i), (ii) and (iii) that the United
Group did not participate in, facilitate, propose, initiate or encourage such
tender or exchange offer or acquisition in any way. Notwithstanding the
foregoing, the acquisition of Common Shares by any Person or 13D Group in
connection with the acquisition by the Company of the assets of Central European
Media Enterprises, Ltd. and the related acquisition of Common Shares by Ronald
S. Lauder (so long as the Voting Securities held by Ronald S. Lauder do not
represent more than 20% of the combined voting power of the Voting Securities
than outstanding (exclusive of treasury Voting Securities held by the Company)),
or as a result of the exercise of currently held options to acquire Common
Shares, shall not result in the termination of any such provisions. As used
herein, the term "13D Group" shall mean a group of persons formed for the
purpose of acquiring, holding, voting or disposing of Voting Securities and/or
Acquisition Rights that would be required under Section 13(d) of the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act"), to file a
statement on Schedule 13D with the U.S. Securities and Exchange Commission (the
"SEC") as a "person" within the meaning of Section 13(d)(3) of the Exchange Act
if such group beneficially owned Voting Securities and/or Acquisition Rights
representing more than 5% of the total combined voting power of all Voting
Securities (with such requirements and such terms being interpreted in
accordance with the Exchange Act and the rules and regulations adopted
thereunder, all as in effect on the date hereof).
Section 2.5. Registration Rights. (a) Subject to
the Company's rights of first refusal set out in Section 7.2
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and to Section 8.1(b), the United Parties shall have the rights to registration
under the U.S. Securities Act of 1933, as amended (the "Securities Act"), of all
the Common Shares acquired by the Investor pursuant to Sections 2.1 and 2.2 of
this Agreement on the terms and subject to the conditions set forth in Exhibit
2.
(b) Notwithstanding any provision in this Agreement to the
contrary, solely to facilitate a possible sale or transfer of Common Shares by
the United Group pursuant to Section 7.1(a) because the Company has been
designated a Restricted Affiliate and is still so designated on August 31, 1999,
the Company agrees that it shall promptly after the date hereof commence
preparation of a registration statement relating to and shall use its best
efforts to register under the Securities Act all the Common Shares acquired by
the Investor pursuant to Sections 2.1 and 2.2 of this Agreement on the terms and
conditions set forth in Exhibit 2 (except Section 1, the notice provisions in
Section 2, Sections 2.1(a),(b) and (d), 2.2 and 2.3 and Section 3 of Exhibit 2),
provided that all Registration Expenses (as defined in Exhibit 2) shall be paid
by the United Parties, and provided further, that the Company's obligations
under this paragraph (b) shall terminate immediately if the events or
circumstances set forth in clauses (A), (B) or (C) of Section 3.3(vi) occur
prior to the RA Status Date (as defined below), if the United Group delivers a
Basket Availability Notice to the Company pursuant to Section 5.2(d)(i) or a RA
Status Termination Event occurs.
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ARTICLE III
SETTLEMENT OF CONVERTIBLE DEBENTURES; CLOSING OF
PRIVATE PLACEMENT SHARES; CONDITIONS
Section 3.1. Purchase of Convertible Debentures and Issuance
of Common Shares. Prior to the Expiration Time and in accordance with the
Indenture, the Investor shall deposit with the Purchase Agent an amount of money
sufficient to pay the Redemption Consideration for all the Convertible
Debentures that have been called for redemption on that date other than any
Convertible Debentures that have been converted by the holders of such
Convertible Debentures prior to the time of such deposit. If any of the
Convertible Debentures called for redemption are converted, the Company agrees
to cause any money deposited with the Purchase Agent in respect of such
Convertible Debentures to be repaid promptly to the Investor in accordance with
the Indenture. In the event that any Redemption Consideration deposited by the
Investor is applied to the actual redemption of Convertible Debentures tendered
for redemption and not purchase, the Company agrees to issue to the Investor a
number of Common Shares equal to the number of Common Shares the Investor would
have received had such Convertible Debentures been purchased and converted by
the Investor pursuant to Sections 2.1(a) and (b).
The Company agrees that, following delivery by the Investor of
the conversion notice under the Indenture referred to in Section 2.1(b) above
and surrender to the Conversion Agent of the Convertible Debentures purchased by
the Investor or payment to holders of Convertible Debentures of Redemption
Consideration deposited by the Investor in respect of Convertible Debentures
that are actually redeemed in exchange for the issuance by the Company of Common
Shares to the
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Investor, the Company shall deliver to the Investor a certificate or
certificates representing such Common Shares in accordance with the Indenture.
Such certificate or certificates shall be registered in the name of the Investor
and shall bear the restrictive legend specified in Section 8.3 regarding
transfers and registration under the Securities Act.
Section 3.2. Closing of Private Placement Shares. The closing
of any sale of Private Placement Shares provided for under Section 2.2 above
shall take place promptly at a date mutually agreed between the parties (which
date shall in no event later than five Business Days after the Expiration Time),
at 10:00 A.M., London time on such date, at the offices of Sullivan & Cromwell,
St. Olave's House, 9a Ironmonger Lane, London, or at such other time and place
as the parties determine in writing (the "Private Placement Closing"). The
actual date on which the Private Placement Closing shall occur is referred to
herein as the "Private Placement Closing Date". At the Private Placement
Closing, (i) the Investor shall deliver to the Company the aggregate purchase
price for the Private Placement Shares and (ii) the Company shall deliver to the
Investor a certificate or certificates representing the Private Placement
Shares, registered in the name of the Investor, and bearing the restrictive
legend specified in Section 8.3 regarding transfers and registration under the
Securities Act. The aggregate purchase price for the Private Placement Shares
shall be paid by the Investor to the Company by wire transfer of immediately
available funds to an account or accounts designated in writing by the Company
not less than two Business Days prior to the Private Placement Closing.
Section 3.3. Conditions to Obligations of United
Parties. At the option of the United Parties (which shall be
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jointly exercised) the obligations of the Investor to deposit the Redemption
Consideration and consummate the purchase of Convertible Debentures pursuant to
Sections 2.1 and 3.1 above are subject to the satisfaction prior to or at the
date on which the notice of redemption of the Convertible Debentures is duly
given pursuant to the Indenture and the Convertible Debentures (the "Call Date")
(or, in the case of paragraph (vi) below, the RA Status Date (as defined
below)), and the obligations of the Investor under Sections 2.2 and 3.2 above to
consummate the purchase of the Private Placement Shares are subject to the
satisfaction prior to or at the Private Placement Closing Date, of each of the
following conditions precedent:
(i) Representations and Warranties. The repre sentations and
warranties made by the Company in this Agreement shall have been true
and correct when made, and shall be true and correct on such date as
though such representations and warranties were made on and as of such
date.
(ii) Compliance with Agreements and Conditions. The Company
shall have performed and complied in all material respects with all
agreements, obligations and conditions required by this Agreement to be
performed or complied with by the Company at or before such date.
(iii) Certificate. The United Parties shall have received a
certificate executed on behalf of the Company by its Vice Chairman and
Chief Operating Officer and by its Chief Financial Officer (or other
executive officers reasonably acceptable to the Investor) and dated
such date, to the effect that the conditions set forth in
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<PAGE>
clauses (i) and (ii) above have been satisfied, substantially in the
form set forth in Exhibit 3.
(iv) Opinions. The United Parties shall have received the
written opinion or opinions, dated the Call Date, of Arendt & Medernach
(as to matters of Luxembourg law) and/or Howard A. Knight, General
Counsel of the Company (as to matters of U.S. Federal law and the laws
of the State of New York), substantially in the forms set forth in
Exhibits 4A and 4B, respectively.
(v) Market Price per Common Share. The market price per
Common Share on the first Business Day immediately prior to the Call
Date shall not be less than 80% of the market price per Common Share on
the first Business Day immediately prior to the date of this Agreement.
For purposes of this paragraph, "market price" shall mean the last
quoted sale price per Common Share for such day as reported by the U.S.
National Association of Securities Dealers, Inc. Automated Quotation
System, or if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market for such day.
(vi) Restricted Affiliate Status. Immediately prior to (X)
the date of transfer of funds to the Purchase Agent for payment by the
Investor of any Redemption Consideration to the Purchase Agent for
Convertible Debentures pursuant to Sections 2.1 and 3.1 or (Y) if all
the Convertible Debentures that have been called for redemption are
converted by the holders of such Convertible Debentures prior to the
date any Redemption Consideration is required to be paid by the
Investor, the Private Placement Closing Date (the earlier of such dates
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<PAGE>
being referred to herein as the "RA Status Date"), the Company shall
execute and deliver to the United Parties a letter agreement consenting
to its designation as a Restricted Affiliate under the United
Indentures substantially in the form attached as Exhibit 5, unless (A)
at or any time prior to the RA Status Date the Parent shall have
received Net Cash Proceeds from the sale of its Qualified Capital Stock
of not less than $80,000,000, (B) at or any time prior to the RA Status
Date the United Parties shall be permitted to make Permitted Basket
Investments (in addition to existing Permitted Basket Investments at
that time) in an aggregate amount that exceeds $150,000,000 (less any
Permitted Basket Investments made pursuant to the Temporary United
Basket) or (C) as a result of an amendment to the United Indentures or
otherwise, entry into such a letter agreement is not required under the
United Indentures to permit the United Parties to provide the
Redemption Consideration or purchase Convertible Debentures pursuant to
the Backstop Facility or the Private Placement Shares, in which case
(X), (Y) or (Z) the Company shall be under no obligation to enter into,
and there shall be no condition precedent to the obligations of the
United Parties under this Agreement relating to, entry into such a
letter agreement.
Section 3.4. Conditions to Obligations of Company. At the
option of the Company, the obligations of the Company under this Agreement are
subject to the satisfaction prior to or at the Call Date (or, in the case of
paragraph (vi) below, the RA Status Date), and the obligations of the Company to
consummate the sale of Private Placement Shares pursuant to
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<PAGE>
Sections 2.2 and 3.2 above are subject to the satisfaction prior to or at the
Private Placement Closing Date, of each of the following conditions precedent:
(i) Representations and Warranties. The representations and
warranties made by the United Parties in this Agreement shall have been
true and correct when made, and shall be true and correct on the Call
Date as though such representations and warranties were made on and as
of such date.
(ii) Compliance with Agreements and Conditions. The United
Parties shall have performed and complied in all material respects with
all agreements, obligations and conditions required by this Agreement
to be performed or complied with by the United Parties at or before the
Call Date.
(iii) Certificate. The Company shall have received
certificates executed on behalf of the United Parties by the Chairman
and Chief Executive Officer and Chief Financial Officer (or other
executive officers acceptable to the Company) of each of the Parent and
Investor, dated the Call Date, to the effect that the conditions set
forth in clauses (i) and (ii) above have been satisfied with respect to
the United Parties, substantially in the forms set forth in Exhibits 6A
and 6B, respectively.
(iv) Opinions. The Company shall have received the written
opinion or opinions, dated the Call Date, of Clifford Chance (as to
matters of the law of The Netherlands and of U.S. Federal law and the
laws of the State of New York) and Holme Roberts & Owen LLP (as to
matters of U.S. Federal law and the laws of the State of
16
<PAGE>
New York), substantially in the forms set forth in Exhibits 7A and 7B,
respectively.
(v) Market Price per Common Share. The market price per
Common Share on the first Business Day immediately prior to the Call
Date shall not be less than 80% of the market price per Common Share on
the first Business Day immediately prior to the date of this Agreement.
For purposes of this paragraph, "market price" shall mean the last
quoted sale price per Common Share for such day as reported by the U.S.
National Association of Securities Dealers, Inc. Automated Quotation
System, or if not so quoted, the average of the high bid and low asked
prices in the over-the-counter market for such day.
(vi) Restricted Affiliate Status. If the Company has executed
and delivered to the UPC Parties pursuant to Section 3.3(vi) above a
letter agreement consenting to its designation as a Restricted
Affiliate, each of the Parent and Investor shall execute and deliver
such letter agreement to the Company.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1. Representations and Warranties of
Company. The Company hereby makes the following
representations and warranties to, and agreements with, the
United Parties:
(a) Corporate Existence. The Company is a
corporation duly organized and validly existing under the
laws of Luxembourg and has full corporate power and
authority to own and operate its properties and conduct
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its business as now conducted by it. Each of the Company's Subsidiaries
is a corporation duly organized and validly existing under the laws of
its jurisdiction of incorporation and has full corporate power to own
and operate its properties and conduct its business as now conducted by
it in all material respects.
(b) Authorization; Enforcement. The Company has full corporate
power and authority to execute and deliver this Agreement and to
perform its obligations under this Agreement in accordance with its
terms, to redeem the Convertible Debentures and to issue and deliver
Common Shares upon conversion of the Convertible Debentures, to issue
and deliver the Private Placement Shares and to consummate the other
transactions on the part of the Company contemplated hereby. The
Company has taken, or will take on or prior to the Call Date or Private
Placement Closing Date, as the case may be, all necessary corporate
action to authorize the execution and delivery of this Agreement, the
redemption of the Convertible Debentures and the issuance and delivery
of Common Shares upon conversion of the Convertible Debentures, the
issuance and delivery of the Private Placement Shares and the
consummation of the other transactions on the part of the Company
contemplated hereby. This Agreement is a valid and legally binding
obligation of the Company enforceable in accordance with its terms
(assuming in each case due authorization, execution and delivery by
each of the United Parties), subject to bankruptcy, insolvency,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
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(c) Compliance with Obligations.
(i) The execution and delivery by the Company of
this Agreement does not, and the redemption of the Convertible
Debentures and the issuance and delivery of Common Shares
receivable upon conversion of the Convertible Debentures, the
issuance and delivery of the Private Placement Shares, the
performance by the Company of its obligations under this
Agreement and the consummation of the other transactions on
the part of the Company contemplated hereby will not (i)
violate or constitute a breach of, or a default under, its
Articles of Incorporation, or any other agreement or
instrument material to Company and its Subsidiaries, taken as
a whole, to which it or any of its Subsidiaries is a party, or
which is binding on it or any of its Subsidiaries or any of
their respective assets, (ii) result in the creation of any
lien on, or security interest in, any of such assets or (iii)
violate any law, rule, regulation, judgment, order or decree
of any court or any public, governmental or regulatory agency
or body in Luxembourg having jurisdiction over the Company or
any of its Subsidiaries or any of their respective properties
or assets (excluding in the cases of clauses (i) and (ii) any
violation, breach, default, lien or security interest that may
arise under the United Indentures related to this Agreement or
the Company's designation as a Restricted Affiliate).
(d) Consents and Approvals. All consents, approvals,
authorizations and orders of governmental or other third parties
required for the Company to execute
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<PAGE>
and deliver this Agreement, to redeem the Convertible Debentures and to
issue the Common Shares receivable upon conversion of the Convertible
Debentures, to issue the Private Placement Shares and otherwise to
consummate the other transactions on the part of the Company
contemplated hereby have been obtained or will be obtained on or prior
to the Call Date or the Private Placement Closing Date, as the case may
be (excluding any consents, authorizations or approvals that may be
required under the United Indentures).
(e) Exchange Act Reports. Each of the Company's Annual Report
on Form 20-F for the fiscal year ended December 31, 1998 and Current
Report on Form 6-K dated June 9, 1999 (collectively, the "SEC
Documents") has been duly and timely filed or furnished, and when filed
or furnished was in substantial compliance with the requirements of the
Exchange Act and the applicable rules and regulations of the SEC
thereunder. Each of the SEC Documents was correct in all material
respects as of its date and, as of its date, did not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. Except as disclosed in the SEC Documents, since December
31, 1998, there has not been any change, or any development involving a
prospective change, which has affected or may affect materially and
adversely the business, assets or prospects or the financial position
or results of operations of the Company and its Subsidiaries considered
as a whole.
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<PAGE>
(f) Outstanding Capital Stock. The authorized capital stock of
the Company consists of 75,000,000 Common Shares. At the date hereof,
the number of Common Shares outstanding is 14,858,720 (exclusive of
47,500 treasury shares held by the Company), all of which shares are
validly issued, fully paid and nonassessable. Except as set forth in or
contemplated by the SEC Documents, and except for the Common Shares
issuable under the terms of the Convertible Debentures and the Private
Placement Shares, no other shares of capital stock of the Company are
issuable prior to the later of the Expiration Time and the Private
Placement Closing Date. There are no preemptive rights in respect of
the Common Shares of the Company to be issued pursuant to this
Agreement. The Private Placement Shares have been duly and validly
authorized and, if issued and delivered in accordance with this
Agreement, will be validly issued, fully paid and non-assessable.
Exhibit 8 contains a true, complete and correct copy of the Articles of
Incorporation of the Company that are in full force and effect on the
date hereof. The Company currently does not intend to issue any Voting
Securities during the six-month period beginning on the date hereof,
except for Voting Securities issuable (i) in connection with the
acquisition by the Company of the assets of Central European Media
Enterprises Ltd., (ii) under the terms of the Convertible Debentures,
in connection with the Backstop Facility or as Private Placement Shares
or (iii) pursuant to rights or options currently held under the
Company's share incentive or employee benefit plans, the warrant held
by Paramount Television Group, or in respect of its 7.0% Convertible
21
<PAGE>
Subordinated Notes due 2004, each as set forth in or contemplated by
the SEC Documents.
(g) Convertible Debentures. At the date hereof, $155,250,000
aggregate principal amount of the Convertible Debentures was
outstanding; prior to the Call Date, the Company will duly authorize
the redemption of all outstanding Convertible Debentures on the
Expiration Time for the Redemption Consideration; the Common Shares to
be issued upon conversion of the Convertible Debentures have been duly
and validly authorized and when issued and delivered in accordance with
the provisions of the Indenture and the Convertible Debentures will be
validly issued, fully paid and non-assessable; the Convertible
Debentures (in denominations of $1,000 or integral multiples thereof)
are convertible into Common Shares credited as fully paid (rounded down
to the nearest Common Share if not an integral number of Common Shares)
at the adjusted conversion price per Common Share provided in the
Indenture at the Expiration Time by surrender thereof to the Conversion
Agent prior to the Expiration Time, and will continue to be so
convertible until the Expiration Time;
(h) Listing of Common Shares. The outstanding Common Shares
are listed on the NASDAQ National Market, and no action has been taken
or, to the knowledge of the Company, threatened by NASDAQ with respect
to the delisting or permanent suspension from trading of the Common
Shares.
Section 4.2. Representations and Warranties of
United Parties. Each of the United Parties hereby makes the
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<PAGE>
following representations and warranties to, and agreements with, the Company
(with such representations, warranties and agreements being made by the Investor
only with respect to itself):
(a) Corporate Existence. The Investor is a company duly
organized and validly existing as a public limited liability company
under the laws of The Netherlands, and the Parent is a corporation duly
organized and validly existing under the laws of the State of Delaware.
(b) Authorization; Enforcement. Each of the United Parties has
full power and authority to execute and deliver this Agreement and to
perform its obligations under the Agreement in accordance with its
terms. Each of the United Parties has taken all necessary action to
authorize the execution and delivery of this Agreement and the
transactions contemplated hereby. This Agreement is a valid and legally
binding obligation of each of the United Parties enforceable in
accordance with its terms (assuming due authorization, execution and
delivery by the Company), subject, as to enforcement, to bankruptcy,
insolvency, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
(c) Compliance with Obligations. The execution and delivery by
each of the United Parties of this Agreement does not, and the
performance by each of the United Parties of its obligations hereunder
and the transactions contemplated hereby will not (i) violate or
constitute a breach of, or a default under, any charter or similar
instrument, or any other agreement or instrument material
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<PAGE>
to the United Group, taken as a whole, to which any member of the
United Group is a party or which is binding on such member or any of
their respective assets, (ii) violate or constitute a breach of, or a
default under any indenture, credit agreement or similar instrument to
which the Parent or Investor is a party or under which it may be bound,
including without limitation the United Indentures, or (iii) violate
any law, rule, regulation, judgment, order or decree of any court or
any public, governmental or regulatory agency or body having
jurisdiction over any member of the United Group or any of their
respective properties or assets.
(d) Consents and Approvals. All consents, approvals,
authorizations and orders of governmental or other third parties
required for each of the United Parties to execute and deliver this
Agreement and to consummate the transactions contemplated hereby have
been obtained.
(e) Investor Exchange Act Reports. Each of the Investor's
Annual Report on Form 10-K for the fiscal year ended December 31, 1998,
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1999, Preliminary Proxy Statement dated June 21, 1999 and Current
Reports on Form 8-K dated June 15, 1999 and May 10, 1999 (collectively,
the "Investor SEC Documents") has been duly and timely filed, and when
filed was in substantial compliance with the requirements of the
Exchange Act and the applicable rules and regulations of the SEC
thereunder. Each of the Investor SEC Documents was correct in all
material respects as of its date and, as of its date, did not contain
any untrue statement of a material fact or omit to
24
<PAGE>
state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. Except as disclosed in the
Investor SEC Documents, since December 31, 1998, there has not been any
change, or any development involving a prospective change, which has
affected or may affect materially and adversely the business, assets or
prospects or the financial position or results of operations of the
Investor and its Subsidiaries considered as a whole.
(f) Parent Exchange Act Reports. Each of the Parent's Annual
Report on Form 10-K for the fiscal year ended December 31, 1998,
Quarterly Report on Form 10-Q for the fiscal quarter ended March 31,
1999, Proxy Statement dated June 24, 1999 and Current Reports on Form
8-K dated June 16, 1999, May 10, 1999 and April 26, 1999 (collectively,
the "Parent SEC Documents") has been duly and timely filed, and when
filed was in substantial compliance with the requirements of the
Exchange Act and the applicable rules and regulations of the SEC
thereunder. Each of the Parent SEC Documents was correct in all
material respects as of its date and, as of its date, did not contain
any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading. Except as disclosed in the Parent SEC Documents, since
December 31, 1998, there has not been any change, or any development
involving a prospective change, which has affected or may affect
materially and adversely the business, assets or prospects
25
<PAGE>
or the financial position or results of operations of the
Parent and its Subsidiaries considered as a whole.
(g) Status and Investment Intent. The Investor is an
"accredited investor" within the meaning of Regulation D under the
Securities Act and is accepting for delivery hereunder the Common
Shares issuable upon conversion of the Convertible Debentures and the
Private Placement Shares for its own account and (subject to its
property being at all times within its control) not with a view to any
public resale or distribution or other disposition thereof. The United
Parties understand that any such Common Shares have not been registered
under the Securities Act and, therefore, cannot be offered or resold
without such registration under the Securities Act or unless an
exemption from registration is available.
(h) Financial Advisors and Brokers. No investment banker,
broker or finder is entitled to any financial advisory, brokerage or
finder's fee or other similar payment from the United Parties based on
agreements, arrangements or undertakings made by the United Parties,
any of their Affiliates or any of their respective directors, officers
or employees in connection with the transactions contemplated hereby,
except that the Investor has agreed to pay compensation to Goldman
Sachs International for their assistance in connection with such
transactions.
(i) Ownership of Common Shares. As of the date hereof and as
of the Call Date, the United Group does not beneficially own and will
not beneficially own, directly or indirectly, any Common Shares.
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<PAGE>
(j) Permitted Basket Investments and Sale of Qualified Capital
Stock. As of the Business Day immediately prior to the date hereof, the
aggregate outstanding amount of Permitted Basket Investments made by
the United Group was approximately $50,000,000, and the maximum
aggregate amount of Permitted Basket Investments that could be made was
approximately $120,000,000. The sale by the Parent of its Series C
Cumulative Convertible Preferred Stock, as described in the preliminary
offering memorandum, dated June 22, 1999, if completed, shall
constitute a sale of Qualified Capital Stock for purposes of the United
Indentures. Each of the United Parties has kept, observed, performed
and fulfilled each and every covenant contained in the United
Indentures in all material respects and is not in default in the
performance or observance of any of the terms, provisions and
conditions of the United Indentures.
ARTICLE V
COVENANTS
Section 5.1. Covenants of Company.
(a) Registration Rights. The Company shall comply with the
respective provisions regarding registration rights contained in
Exhibit 2 and Section 2.5.
(b) Conversion Rights and Sale of Common Shares. The Company
shall comply with the relevant provisions of the Indenture relating to
the conversion by the Investor of any Convertible Debentures acquired
by the Investor, including without limitation Section 1207 (Ability to
Perform) thereof, and shall take all action necessary to ensure that
any Common Shares to be issued and sold by it
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pursuant to Section 2.2 hereof are available to be issued and sold at
the Private Placement Closing Date.
(c) Information. So long as the United Group owns directly or
indirectly Common Shares in an amount at least equal to the Minimum
Stake, the Company shall furnish to the Investor (i) as soon as
publicly available after the close of each of the Company's fiscal
years, a copy of the annual audit report relating to the Company and
its consolidated subsidiaries prepared in accordance with U.S.
generally accepted accounting principles ("U.S. GAAP") by the Company's
independent public accountants, together with consolidated financial
statements consisting of a balance sheet as of the end of such fiscal
year and statements of operations and comprehensive income,
shareholders' equity and cash flows for such fiscal year; and (ii) as
soon as publicly available, copies of all financial statements and
information, reports, notices and proxy statements sent by the Company
in a general mailing to all its shareholders or otherwise made publicly
avail able, of all reports on Forms 20-F and 6-K filed or furnished by
the Company under the Exchange Act (if any), and of all final
prospectuses included in registration statements of the Company at the
time of effectiveness of such registration statements under the
Securities Act, or filed pursuant to Rule 424 under the Securities Act.
(d) Director of Company.
(i) So long as the United Group directly or
indirectly owns Common Shares in an amount at least equal to
the lesser of the Minimum Stake and eight (8) percent of the
then outstanding Common Shares
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(exclusive of any treasury Voting Securities held by the
Company), the Company shall use its best efforts to cause one
seat on its Board of Directors to be occupied by a person
designated by the Investor (who shall be a member of the Board
of Management or senior executive of the Investor, a national
of a member state of the European Community and acceptable to
the Company), and shall: (X) reserve one vacancy on the Board
of Directors of the Company to be filled exclusively by such
designee; (Y) include such designee in the slate of nominees
recommended by the Board of Directors to the shareholders of
the Company for election as director at each annual meeting of
shareholders of the Company commencing with the next annual
meeting of shareholders; and (Z) vote or cause to be voted all
shares for which management of the Company holds proxies or is
otherwise entitled to vote in favor of the election of such
designee, provided, however, that the Company's best efforts
shall not include the removal or resignation and replacement
of an existing member of its Board of Directors. Until such
designee of the Investor is elected to the Board of Directors
of the Company, such designee shall have the right to attend
and participate (but not vote) as an observer in the meetings
of the Board of Directors as if such designee were a member of
the Board of Directors. If a vacancy on the Company's Board of
Directors occurs prior to the next general meeting of its
shareholders, the Investor's designee shall be appointed to,
and shall, fill the vacancy. The Investor agrees that any such
designee shall enter
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<PAGE>
into an agreement with the Investor, and the Investor shall
cause such designee, to resign from the Board of Directors of
the Company within a reasonable time if such designee shall
cease to be a member of the Board of Management or senior
executive of the Investor. In the event that any such designee
shall cease to serve as a member of the Board of Directors of
the Company for any reason (including his having ceased to be
a member of the Board of Management or senior executive of the
Investor), the Company shall use its best efforts to cause the
vacancy resulting thereby to be filled by another designee of
the Investor (who shall be a member of the Board of Management
or senior executive of the Investor, a national of a member
state of the European Community and acceptable to the
Company).
(ii) The Company agrees that any designee of the
Investor who is elected to serve or who is acting as an
observer on the Board of Directors of the Company shall be
furnished with all information generally provided to the Board
of Directors of the Company and shall be entitled to the same
perquisites and subject to the same obligations as the
Company's other outside Directors (i.e., those directors who
are not employees of the Company).
(e) Actions Affecting Share Price. From the date of this
Agreement to the later of the Expiration Time and the Private Placement
Closing Date, the Company shall, and shall procure that its Affiliates
shall, refrain from taking any action that could reasonably be expected
to result in a material adverse change in the publicly quoted
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price of the Common Shares, including, without limitation, the issuance
of new Voting Securities by the Company, but excluding any action taken
by the Company or an Affiliate to comply with applicable laws or
regulations and excluding the issuance of Voting Securities upon the
exercise of or pursuant to any rights to acquire such Voting Securities
held by a Person at the date hereof.
(f) Dividends or Stock Splits. Prior to the date of
acquisition by the Investor of Common Shares pursuant to the Backstop
Facility and the Private Placement Closing Date (if greater than
3,000,000 Common Shares are not acquired by the Investor pursuant to
the Backstop Facility), the Company shall not, and except in the
ordinary cause of business shall not permit any of its Subsidiaries to
(i) declare, set aside or pay any dividends on, or make any other
distributions in respect of, any of its capital stock, other than
dividends and distributions in the ordinary course of business by a
direct or indirect Subsidiary of the Company to its shareholders in
accordance with their respective interests, or (ii) split, combine or
reclassify any of its capital stock or issue or authorize the issuance
of any other securities in respect of, in lieu of or in substitution
for shares of its capital stock.
(g) Listings Outside the United States. If at any time the
Common Shares are admitted to listing on a securities exchange outside
the United States, the Company agrees to amend or modify the legends or
notations on the certificates representing the Common Shares acquired
by the United Group pursuant to Sections 2.1 or 2.2 of this Agreement
(and to issue replacement share certificates if
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necessary) to incorporate such legends or notations as are required
under the rules of such exchange to permit trading of such Common
Shares on such exchange, provided that such Common Shares shall bear
the legend set forth in Section 8.3 and that any sale or transfer of
such Common Shares shall be in accordance with and subject to the terms
and conditions set forth in this Agreement.
Section 5.2. Covenants of Parent and Investor.
(a) Transfers. Subject to Sections 2.4 and except as set forth
in Section 2.3(b), all of the Common Shares acquired by the United
Group under Sections 2.1 and 2.2 of this Agreement (collectively, the
"Covered Securities") shall be transferable to Persons that are not
members of the United Group only in accordance with the transfer
restrictions set forth in Article VII of this Agreement.
(b) Voting of Common Shares and Other Voting
Securities. The United Parties agree with the Company
that during the Standstill Period:
(i) The United Group will not (X) deposit any Common Shares or
other Voting Securities in a voting trust or subject any
Common Shares or other Voting Securities to any arrangement or
agreement with respect to the voting of such Common Shares or
Voting Securities if the purpose of such voting trust or
arrangement relates to control of the Company; or (Y) solicit
or grant proxies or become a participant in a "solicitation"
(as such term is defined in Regulation 14A under the Exchange
Act as in effect on the date hereof, and notwithstanding that
the Company is not subject to Regulation 14A) if such proxy
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relates to control of the Company, in opposition to
the recommendation of the Board of Directors of the
Company;
(ii) The United Group will at all times vote or cause
to be voted its Common Shares and other Voting Securities in
accordance with the recommendation of the Board of Directors
of the Company with respect to (X) any nominations for the
Board of Directors of the Company; and (Y) the proposed merger
of the Company with Central European Media Enterprises Ltd.,
unless in each case voting in accordance with such
recommendation would constitute an actionable breach of the
statutory fiduciary obligations of the management of the
United Parties to their shareholders; and
(iii) The Investor, as holder of Common Shares, and
any other member of the United Group that is the direct or
indirect beneficial owner of Common Shares and other Voting
Securities, shall be present or cause to be present, in person
or by proxy, at all meetings of shareholders of the Company
with respect to which each such holder receives notice, so
that all Common Shares or other Voting Securities owned by
each such holder may be counted for the purpose of determining
the presence of a quorum at such meetings.
(c) Actions Affecting Share Price. From the date of this
Agreement to the later of the Expiration Time and the Private Placement
Closing Date, the United Parties shall, and shall procure that their
Affiliates and any financial advisors shall, refrain from taking any
action that could
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reasonably be expected to result in a material change in the publicly
quoted price of the Common Shares, excluding any action taken by the
United Parties or an Affiliate to comply with applicable laws and
regulations.
(d) Permitted Investments.
(i) The United Group shall not make any Permitted Basket
Investment (other than pursuant to Sections 2.1 and 2.2 of
this Agreement or Permitted Basket Investments that in the
aggregate do not exceed $45,000,000 (such amount, the
"Temporary United Basket")) prior to the RA Status Date,
unless and solely to the extent the United Parties shall be
permitted under the United Indentures to make Permitted Basket
Investments (in addition to existing Permitted Basket
Investments at that time) in an aggregate amount that exceeds
$150,000,000 (less the amount of any Permitted Basket
Investments made under the Temporary United Basket), in which
circumstance the United Parties shall promptly so notify the
Company (such notice, a "Basket Availability Notice"). If the
United Parties are permitted to deposit the Redemption
Consideration and purchase the Convertible Debentures to be
acquired by the Investor pursuant to the Backstop Facility and
the Private Placement Shares as Permitted Basket Investments
without a default under the United Indentures occurring as a
consequence of such purchases, such purchases shall be made as
Permitted Basket Investments, provided that, subject to
Section 3.3, the United Parties shall not be relieved of their
obligations to purchase Convertible Debentures or
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<PAGE>
Private Placement Shares under this Agreement if they are not
permitted to make such purchases as Permitted Basket
Investments.
(ii) If at the RA Status Date the Company is
designated a Restricted Affiliate pursuant to Sections 3.3(vi)
and 3.4(vi) and the letter agreement the form of which is
attached as Exhibit 5, the United Group shall not make any
Permitted Basket Investments other than Permitted Basket
Investments the aggregate amount of which does not exceed the
Temporary United Basket until (X) the Company (and any
Subsidiary or Affiliate of the Company that has been
designated by the Board of Directors of the Parent as a
Restricted Affiliate) are designated by the Board of Directors
of the Parent not to be Restricted Affiliates and the Company
is notified of such designation in writing by the Parent, (Y)
the United Group disposes of all Voting Securities directly or
indirectly owned by it (subject to and in accordance with the
terms and conditions of this Agreement) or (Z) as a result of
an amendment to the United Indentures or otherwise, the
Company (and any Subsidiary or Affiliate of the Company that
has been designated by the Board of Directors of the Parent as
a Restricted Affiliate) are not Restricted Affiliates and are
not subject to any obligations under this Agreement or the
letter agreement entered into pursuant to Sections 3.3(vi) and
3.4(vi) as a result of such status (each of the events or
circumstances described in clauses (X),(Y) and (Z)
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being referred to herein as a "RA Status Termination
Event")
ARTICLE VI
FURTHER AGREEMENTS
Section 6.1. Cooperation. Subject to the terms and conditions
of this Agreement, the Company and the United Parties agree to use their best
efforts to take, or cause to be taken, all actions and to do, or cause to be
done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective, as soon as reasonably practicable,
the terms of this Agreement and the transactions contemplated hereby.
Section 6.2. Fees and Expenses. Whether or not the
transactions contemplated hereby are consummated or this Agreement is terminated
pursuant to Section 8.1 hereof, and except as may otherwise be specifically
provided in this Agreement, each party shall pay the fees and expenses of its
counsel, accountants, investment bankers, brokers, finders and other advisors
and all other expenses incurred by such party incident to the negotiation,
preparation, execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby.
Section 6.3. Publicity. The Company and the United Parties
agree to consult with each other and to coordinate the issuance of any press
release or similar public announcement or communication relating to the
execution or performance of this Agreement or to the transactions contemplated
hereby; provided, however, that no party shall be restrained, after consultation
with the other party, from making such disclosure as it shall be advised by
counsel it is required to make by law,
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administrative regulation or guidance or by the regulations of
any stock exchange.
ARTICLE VII
TRANSFER RESTRICTIONS
Section 7.1. Transfer Restrictions. (a) Except as otherwise
expressly permitted by this Agreement and subject to the exceptions set forth in
Section 2.4, prior to one year from the date hereof, the United Group shall not
sell or otherwise transfer any Covered Securities or interest therein without
obtaining the prior written approval of the Company, provided that if the
Company or any of its Subsidiaries or Affiliates have been designated Restricted
Affiliates and are still so designated on August 31, 1999, the United Parties
shall, commencing on such date, promptly sell or otherwise transfer all the
Common Shares acquired pursuant to Sections 2.1 and 2.2 (or less than all such
Common Shares if as a result of and immediately following such sale or transfer
the Board of Directors of the Parent shall be permitted under the United
Indentures to, and shall, designate the Company (and any of its Subsidiaries or
Affiliates that have been designated Restricted Affiliates) not to be Restricted
Affiliates), which sale or transfer shall not be subject to the Company's rights
of first refusal set forth in Section 7.2 and the Company (and any Subsidiaries
or Affiliates that have been so designated) shall remain Restricted Affiliates
until the earlier of (i) the date a RA Status Termination Event occurs and (ii)
the later of (X) August 31, 1999 and (Y) the date 10 Business Days after a
registration statement covering such Common Shares is declared effective by the
U.S. Securities and Exchange Commission, provided that during such 10 Business
Day period no stop order covering such registration statement has been issued,
such
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registration statement has not been withdrawn by the Company and such
registration statement is not required to be amended. Immediately following such
date the Board of Directors of the Parent shall designate the Company (and any
of its Subsidiaries or Affiliates that have been designated Restricted
Affiliates) not to be Restricted Affiliates.
(b) Commencing one year from the date hereof, the United Group shall be
permitted to sell or transfer Covered Securities, subject to the Company's
rights of first refusal set forth in Section 7.2 below, provided that all such
sales or transfers of Common Shares shall be in compliance with all applicable
laws and regulations, including securities laws and regulations. For avoidance
of doubt, the United Group shall not be required to sell or transfer Common
Shares pursuant to the registration rights set forth in Section 2.5 and Exhibit
2 if other means of sale or transfer that are exempt from the registration
requirements of the Securities Act and otherwise in compliance with this
Agreement are available, although any registration of Common Shares shall be in
accordance with such provisions.
Section 7.2. Company's Right of First Refusal
Subject to the other provisions of this Agreement and except
as provided in Section 7.1(a), prior to making any offer to sell, sale or
transfer of any Covered Securities or request for registration of Common Shares,
the United Parties shall give the Company the opportunity to purchase such
Covered Securities in the following manner:
(a) The United Parties shall give notice (the "Transfer
Notice") to the Company in writing of such intention, specifying the
name of the proposed
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transferee(s) or the proposed manner of sale to trans ferees not then
known, the amount of Covered Securities proposed to be sold, the
proposed price per share therefor (which price may be a price
determined by application of a formula, such as the average closing
price for such Covered Securities on NASDAQ or the principal stock
exchange on which such Covered Securities are then listed for a
specified number of days prior to a sale date) (the "Transfer Price"),
the other material terms upon which such sale is proposed to be made
and all other relevant information reasonably requested by the Company.
In the case of proposed sales to be made in accordance with the volume
limitations set forth in paragraphs (e)(1) and (e)(2) of Rule 144 under
the Securities Act (in the case of paragraph (e)(2), without giving
effect to the reference to subsection (k) of such Rule), the Transfer
Price shall be deemed to be the Average Market Price per Common Share
on the day prior to the giving of the Transfer Notice.
(b) The Company shall have the right, exercisable by written
notice given by the Company to the Parent or Investor within five (5)
Business Days after receipt of such Transfer Notice, to purchase all or
a portion of the Covered Securities specified in the Transfer Notice,
for cash at a price per share equal to the Transfer Price.
(c) If the Company exercises its right of first refusal
hereunder, the closing of the purchase of the Covered Securities with
respect to which such right has been exercised shall take place no
later than fifteen (15) Business Days after the later of (i) the
Company's giving of notice of such exercise and (ii) the end of such
period
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<PAGE>
of time as the Company and the United Parties may reasonably require in
order to comply with applicable laws and regulations. Upon exercise by
the Company of the right of first refusal under this Section 7.2, the
Company and the United Parties shall be legally obligated to consummate
the purchase contemplated thereby and shall use their best efforts to
secure any approvals required and to comply with all applicable laws
and regulations and stock exchange listing requirements in connection
therewith as soon as practicable.
(d) If the Company does not exercise its right of first
refusal hereunder within the time specified for such exercise, the
United Group shall be free (i) during the period of 60 calendar days
following the earlier of the giving of notice by the Company that it
does not intend to exercise such right of first refusal and the
expiration of such time for exercise or (ii) in the case of a
registration of such securities for sale in accordance with Section
5.1(a), within 90 calendar days of the related registration statement
becoming effective, to sell or contract to sell the Covered Securities
specified in such Transfer Notice, provided that the price per Covered
Security is (X) at least as high as the Transfer Price, (Y) determined
by the same formula as the Transfer Price or a formula that is more
favorable economically to the United Parties or (Z) in the case of
proposed sales to be made in accordance with the volume limitations set
forth in paragraphs (e)(1) and (e)(2) of Rule 144 under the Securities
Act (in the case of paragraph (e)(2), without giving effect to the
reference to subsection (k) of such Rule), determined in accordance
with the provisions of
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Rule 144 in the manner and on terms no less favorable economically to
the United Parties than were specified in the Transfer Notice. Covered
Securities not so sold or contracted to be sold by the United Parties
within such period shall remain subject to Section 7.1 and shall again
become subject to the procedures provided in this Section 7.2.
ARTICLE VIII
MISCELLANEOUS
Section 8.1. Termination. (a) This Agreement may
be terminated at any time prior to the Call Date:
(i) By mutual action of the Company and the United Parties.
(ii) By the United Parties, if the conditions set forth in
Section 3.3 hereof shall not have been complied with or performed and
such noncompliance or nonperformance shall not have been cured or
eliminated (or by its nature cannot be cured or eliminated) or waived
on or before the Call Date.
(iii) By the Company, if the conditions set forth in Section
3.4 hereof shall not have been complied with or performed and such
noncompliance or nonperformance shall not have been cured or eliminated
(or by its nature cannot be cured or eliminated) or waived on or before
the Call Date.
(iv) By either the Company or the United Parties if the Call
Date shall not have occurred on or before June 30, 1999 as a result of
events or circumstances not directly controlled by the Company, and by
the United
41
<PAGE>
Parties only if the Call Date shall not have occurred on or before June
30, 1999 because of events or circumstances directly controlled by the
Company.
In the event of the termination of this Agreement pursuant to
this clause (a), this Agreement shall thereafter become void and have no effect,
and no party hereto shall have any liability to the other party hereto or its
shareholders, or directors or officers in respect thereof, except for the
obligations of the parties in Section 6.2, and except that nothing herein will
relieve any party from liability for any breach of this Agreement (except a
breach of the repre sentations and warranties of the Company or the United
Parties in Sections 4.1 or 4.2, as the case may be) prior to such termination.
No party shall in any event be liable to the other party for loss of anticipated
profits from the transactions contemplated by this Agreement or for any other
consequential damages arising out of the termination of this Agreement.
(b) All rights and obligations of the United Parties under
this Agreement shall terminate at such time as the United Group ceases to own,
directly or indirectly (not as a result of a breach of this Agreement) at least
one percent (1%) of the then outstanding Common Shares (exclusive of treasury
Voting Securities held by the Company) or, at the option of the United Parties
(which shall be exercised jointly), if the Investor acquires less than 7.5% of
the then outstanding Common Shares (exclusive of treasury Voting Securities held
by the Company) in connection with the Backstop Facility and the Investor does
not acquire any Private Placement Shares as a result of a failure of the
conditions precedent set forth in Section 3.3, provided that if the Company has
been designated a Restricted
42
<PAGE>
Affiliate, at the time of such termination the Company (and any Subsidiary or
Affiliate that may be subject to or affected by Restricted Affiliate status)
have been designated by the Board of Directors of the Parent not to be
Restricted Affiliates and are not subject to any obligations under this
Agreement or the letter agreement entered into pursuant to Sections 3.3(vi) and
3.4(vi) as a result of such status.
(c) The United Parties' rights and obligations under Section
2.5 and Exhibit 2 shall terminate at such time as the United Group ceases to own
at least five percent (5%) of the then outstanding Common Shares (exclusive of
treasury Voting Securities held by the Company), unless the United Group holds
at least one percent (1%) of the then outstanding Common Shares (exclusive of
treasury Voting Securities held by the Company) and in connection with a request
for registration the United Parties provide the Company with an opinion
satisfactory to the Company of nationally recognized U.S. counsel that the
United Parties are "affiliates" of the Company at that time for purposes of Rule
144 under the Securities Act, in which case such rights and obligations shall
not terminate with respect to the registration requested.
Section 8.2. Survival of Representations and Warranties. The
representations, warranties, agreements and covenants contained in this
Agreement shall survive the acquisition by the Investor of Common Shares
pursuant to the Backstop Facility or at the Private Placement Closing.
Section 8.3. Legend. The certificates evidencing the Covered
Securities (unless a registration statement with respect to such securities
referred to in Exhibit 2 is then effective) shall bear the following legend
until such time as the United Parties or any transferee thereof deliver an
opinion
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<PAGE>
of nationally recognized U.S. counsel, such opinion and counsel
to be reasonably acceptable to the Company, to the effect that
such legend is no longer required under the Securities Act:
THESE SECURITIES WERE ACQUIRED WITHOUT REGISTRATION UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND MAY BE OFFERED OR SOLD ONLY IF REGISTERED UNDER THE
SECURITIES ACT OR IF AN EXEMPTION FROM REGISTRATION IS
AVAILABLE. THESE SECURITIES ARE SUBJECT TO THE PROVISIONS OF
THE INVESTMENT AGREEMENT, DATED AS OF JUNE 29, 1999, BY AND
BETWEEN SBS BROADCASTING S.A. AND UNITED PAN-EUROPE
COMMUNICATIONS N.V. AND UNITED INTERNATIONAL HOLDINGS, INC.
AND MAY NOT BE SOLD OR TRANSFERRED EXCEPT IN ACCORDANCE
THEREWITH.
The Company may also instruct its transfer agent, State Street
Bank and Trust Company, not to register the transfer of any Covered Securities
except under the circumstances contemplated herein.
Section 8.4. Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect.
Section 8.5. Specific Enforcement. Each of the Company and the
United Parties acknowledge and agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent or cure breaches of the provisions of this Agreement and
to enforce specifically the terms and provisions hereof and thereof in any court
of the
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<PAGE>
United States, Luxembourg or The Netherlands thereof having jurisdiction, this
being in addition to any other remedy to which they may be entitled by law or
equity.
Section 8.6. Entire Agreement. This Agreement contains the
entire understanding of the parties with respect to the matters covered hereby
and will supersede and replace all prior oral or written agreements covering the
matters contemplated in this Agreement, including the Indicative Term Sheet,
dated 20 May 1999, initialed by the Company and the Investor (except for the
paragraph headed "The Joint Venture Transaction" thereof), and the Letter of
Intent, dated June 8, 1999, by and between the Company and the Investor. This
Agreement may be amended only by an agreement in writing executed by the parties
hereto. Time shall be of the essence of this Agreement.
Section 8.7. Counterparts. This Agreement may be
executed by the parties hereto in counterparts each of which
shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 8.8. Notices. All notices or services of process
provided for herein shall be validly given or served, as the case may be, if in
writing and delivered personally, or by confirmed facsimile (followed promptly
by an original copy of such notice or service of process delivered by registered
mail), if to:
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The Company:
SBS Broadcasting S.A.
8-10 rue Mathias Hardt
L-1717 Luxembourg
Attention: Corporate Secretary
Facsimile: +35 2 40 7804
With copies to:
SBS Broadcasting S.A.
36 Ives Street
London SW3 2ND, England
Attention: Corporate Secretary
Facsimile: +44 171 590 3601
and
Sullivan & Cromwell
St. Olave's House
9a Ironmonger Lane
London EC2V 8EY, England
Attention: William A. Plapinger
Facsimile: +44 171 710 6565
The Investor:
United Pan-Europe Communications N.V.
Fred. Roekestraat 123
1070 BT Amsterdam
The Netherlands
Attention: Anton Tuijten
Facsimile: 1-20-778-9871
The Parent:
United International Holdings, Inc.
4643 South Ulster Street, #1300
Denver, Colorado 80237, U.S.A.
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<PAGE>
Attention: President and Legal Department
Facsimile: +1 303 770 4207
With copies to:
Clifford Chance
Apollolaan 171
1077 AS Amsterdam
The Netherlands
Attention: W.J. Placke and Joachim Fleury
Facsimile: +31-20-577-7222
and
Holme Roberts & Owen LLP
1700 Lincoln, Suite 1400
Denver, Colorado 80203
U.S.A.
Attention: W. Dean Salter
Facsimile: +1 303 866 0200
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given to the other party in a like manner.
Section 8.9. Waivers. No waiver by either party of any default
with respect to any provision, condition or requirement hereof shall be deemed
to be a waiver of any other provision, condition or requirement hereof; nor
shall any delay or omission of either party to exercise any right hereunder in
any manner impair the exercise of any such right accruing to it thereafter.
Section 8.10. Beneficial Ownership. In determining
any Person's ("First Person") direct or indirect beneficial
47
<PAGE>
ownership of the securities of any other Person ("Second Person") pursuant to
this Agreement, there shall not be included any securities of the Second Person
held by any other Person ("Third Person") with respect to which the First Person
owns directly or indirectly less than 10% of such Third Person's outstanding
Voting Securities solely as a result of such ownership.
Section 8.11. Adjustment of Amounts of Common Shares. If at
any time, the Company shall (i) pay a dividend or make a distribution on the
Common Shares in Common Shares, (ii) subdivide or reclassify its outstanding
Common Shares into a greater number of shares or (iii) combine or reclassify its
outstanding Common Shares into a smaller number of shares, then in each such
case the Minimum Stake specified in Section 2.2 shall be adjusted so that, after
the happening of any of the events described above in this sentence, the Minimum
Stake shall equal a number equal to the Minimum Stake (or such other amount as
the Minimum Stake may have been adjusted to from time to time) multiplied by the
number of Common Shares (including fractions, if applicable) that a holder of
Common Shares would hold or be entitled to receive immediately after such
happening in respect of each Common Share held by such holder immediately prior
to such happening. Any adjustments made pursuant to the immediately preceding
sentence shall become effective immediately after the date of payment, in the
case of a dividend or distribution, or immediately after the effective date, in
the case of a subdivision, combination or reclassification.
Section 8.12. Submission to Jurisdiction; Consent to
Service of Process. With respect to any claim arising out of
this Agreement (a) each of the Company and the United Parties
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irrevocably submits to the nonexclusive jurisdiction of the courts of the State
of New York and the United States District Court located in the Borough of
Manhattan in The City of New York and (b) each of the Company and the United
Parties irrevo cably waives any objection which it may have at any time to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in any such court, irrevocably waives any claim that any
such suit, action or proceeding brought in any such court has been brought in an
inconvenient forum and further irrevocably waives the right to object, with
respect to such suit, action or proceeding brought in any such court, that such
court does not have jurisdiction over such party; provided, however, that
nothing in this Section 8.12 shall be deemed to preclude the Company, or the
United Parties from bringing an action or proceeding in respect of any such
agreement in any other jurisdiction. Each of the Company and the United Parties
agrees that service of process upon it in any such suit, action or proceeding
shall be deemed in every respect effective service of process upon it if given
in the manner set forth in Section 8.8. EACH PARTY HERETO HEREBY WAIVES ANY
RIGHT TO A TRIAL BY JURY IT MAY HAVE IN CONNECTION WITH ANY SUCH SUIT, ACTION OR
PROCEEDING.
Section 8.13. Headings. The headings herein are for
convenience only, do not constitute a part of this Agreement,
and shall not be deemed to limit or affect any of the
provisions hereof.
Section 8.14. Successors and Assigns. This
Agreement shall be binding upon and inure to the benefit of the
parties and their successors and legal representatives. No
third party is intended to have any rights by reason of, or to
enforce, any provision of this Agreement. Neither party may
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<PAGE>
assign this Agreement or any rights hereunder. The assignment by a party of this
Agreement or any rights hereunder shall not affect the obligations of such party
under this Agreement.
Section 8.15. Governing Law. This Agreement shall
be governed by and construed and enforced in accordance with
the laws of the State of New York.
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IN WITNESS WHEREOF, each of the Company, the Parent and the
Investor have caused this Agreement to be duly executed by their respective
authorized directors or officers as of the date first above written.
SBS BROADCASTING S.A.
By: /s/ Harry E. Sloan
Name: Harry E. Sloan
Title: Chairman and Chief
Executive Officer
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Mark Schneider
Name: Mark Schneider
Title: Managing Director
By: /s/ A.H.E. van Voskuijlen
Name: A.H.E. van Voskuijlen
Title: Managing Director
UNITED INTERNATIONAL HOLDINGS, INC.
By: /s/ Michael T. Fries
Name: Michael T. Fries
Title: President
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Exhibit 1 to
Investment Agreement
DEFINITIONS
"Acquired Indebtedness" has the meaning assigned to
it in each United Indenture.
"Acquisition Rights" means rights to acquire beneficial
ownership of Voting Securities that are exerciseable within 60 days, including
but not limited to any right to acquire Voting Securities:
(i) through the exercise of any option, warrant or
right;
(ii) through the conversion of a security;
(iii) pursuant to the power to revoke a trust,
discretionary accounts or similar arrangement;
or
(iv) pursuant to the automatic termination of a
trust, discretionary account or similar
arrangement;
provided, that any Voting Securities not outstanding that are subject to such
options, warrants, rights or conversion privileges shall be deemed to be
outstanding for the purpose of computing the percentage of outstanding Voting
Securities owned by such Person or 13D Group but shall not be deemed to be
outstanding for the purpose of computing the percentage of Voting Securities
held by any other Person or 13D Group.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of Voting Securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agreement" means the Investment Agreement, dated as of June
29, 1999, by and between the Company and the United Parties, as it may be
amended from time to time.
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<PAGE>
"Average Market Price" of any security on any date means the
average of the daily closing prices for such security for the 20 consecutive
trading days prior to the day before the day in question. The closing price for
each day shall be the last reported sales price regular way or, in case no such
reported sale takes place on such day, the average of the reported closing bid
and asked prices regular way, in either case on the NASDAQ National Market or,
if such security is not listed or admitted to trading on such Market or the
principal securities exchange on which such security is then listed or admitted
to trading or, if not listed or admitted to trading on any securities exchange,
the average of the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected from time to
time by the issuer of such security for that purpose. For the purposes of this
definition, the term "trading day" shall mean each Monday, Tuesday, Wednesday,
Thursday and Friday, other than any day on which securities are not traded on
such exchange or in such market.
"Backstop Facility" has the meaning ascribed to it in
Section 2.1(a) of the Agreement.
"Backstop Price" has the meaning ascribed to it in
Section 2.1(b) of the Agreement.
"Basket Availability Notice" has the meaning ascribed
to it in Section 5.2(d)(i) of the Agreement.
"Business Day" means any Monday, Tuesday, Wednesday,
Thursday or Friday on which banks are open for business, are
not required or permitted to be closed and are carrying out
transactions in U.S. Dollars in Amsterdam, London or The City
of New York.
"Call Date" has the meaning ascribed to it in Section
3.3 of the Agreement.
"Common Shares" means the common shares of the Company, par
value $1.50 per share, subject to Section 8.11.
"Company" has the meaning ascribed to it in the
recitals to the Agreement.
"Conversion Agent" means, for purposes of the Backstop
Facility, State Street Bank and Trust Company, acting in its capacity as
"Conversion Agent" under the Indenture.
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"Convertible Debentures" has the meaning ascribed to
it in the recitals to the Agreement.
"Covered Securities" has the meaning ascribed to it
in Section 5.2(a) of the Agreement.
"Disqualified Capital Stock" has the meaning assigned
to it in each United Indenture.
"Equity Interest" has the meaning assigned to it in
each United Indenture.
"Exchange Act" has the meaning ascribed to it in
Section 2.4 of the Agreement.
"Expiration Time" has the meaning ascribed to it in
Section 2.1(a) of the Agreement.
"First Person" has the meaning ascribed to it in
Section 8.10 of the Agreement.
"Group" means a group of Persons or their Affiliates acting in
concert in connection with any of the activities contemplated by the Agreement.
"Indebtedness" has the meaning assigned to it in each
United Indenture.
"Indenture" has the meaning ascribed to it in the
recitals to the Agreement.
"Investment" has the meaning assigned to it in the
United Indentures.
"Investor" has the meaning ascribed to it in the
recitals to the Agreement.
"Investor SEC Documents" has the meaning ascribed to
it in Section 4.2(e) of the Agreement.
"Minimum Stake" has the meaning ascribed to it in
Section 2.2 of the Agreement.
"Net Cash Proceeds" has the meaning ascribed to it in
each United Indenture.
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"Parent" has the meaning ascribed to it in the
recitals to the Agreement.
"Parent SEC Documents" has the meaning ascribed to it
in Section 4.2(f) to the Agreement.
"Parent's Share" means, from time to time, the Parent's Pro
Rata Share (as defined in each United Indenture) in the Investor at that time.
"Permitted Basket Investment" means any Investment permitted
under clause (e) of the definition of "Permitted Investment" in each United
Indenture.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Private Placement Closing" and "Private Placement Closing
Date" have the meanings ascribed to them in Section 3.2 of the Agreement.
"Private Placement Shares" has the meaning ascribed
to it in Section 2.2 of the Agreement.
"Purchase Agent" has the meaning ascribed to it in
Section 2.1(b) of the Agreement.
"Qualified Capital Stock" has the meaning assigned to
it in each United Indenture.
"RA Status Date" has the meaning ascribed to it in
Section 3.3(vi) of the Agreement.
"RA Status Termination Event" has the meaning
ascribed to it in Section 5.2(d)(ii) of the Agreement.
"Redemption Consideration" has the meaning ascribed
to it in Section 2.1(a) of the Agreement.
"Redemption Price" has the meaning ascribed to it in
the Indenture.
"Registrable Securities" means any Common Shares and any
securities of the Company distributed with respect to such Common Shares, in
each case directly or indirectly beneficially owned by the Investor in
accordance with Article II of the Investment Agreement.
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"Related Business" has the meaning assigned to it in
each United Indenture.
"Restricted Affiliate" has the meaning assigned to it
under the United Indentures.
"Restricted Payment" has the meaning assigned to it
in each United Indenture.
"SEC" has the meaning ascribed to it in Section 2.4
of the Agreement.
"SEC Documents" has the meaning ascribed to it in
Section 4.1(e) of the Agreement.
"Second Person" has the meaning ascribed to it in
Section 8.10 of the Agreement.
"Securities Act" has the meaning ascribed to it in
Section 2.5 of the Agreement.
"Standstill Amount" means, at any time, Common Shares and
other Voting Securities that, taken together, represent 20% of the aggregate
voting rights in the Company attributable to all Common Shares and other Voting
Securities outstanding at that time (exclusive of any treasury Voting Securities
held by the Company).
"Standstill Period" has the meaning ascribed to it in
Section 2.3(a) of the Agreement.
"Subsidiary" means, with respect to any Person, any other
Person of which shares of capital stock or other interests having a majority of
the general voting power in electing the board of directors (or body exercising
similar authority) are, at the time as of which any determination is being made,
beneficially owned by the first Person.
"Temporary United Basket" has the meaning ascribed to
it in Section 5.2(d)(i) of the Agreement.
"Third Person" has the meaning ascribed to it in
Section 8.10 of the Agreement.
"13D Group" has the meaning ascribed to it in Section
2.4 of the Agreement.
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<PAGE>
"Threshold Amount" has the meaning ascribed to it in
Section 2.4 of the Agreement.
"Transfer Notice" has the meaning ascribed to it in
Section 7.2(a) of the Agreement.
"Transfer Price" has the meaning ascribed to it in
Section 7.2(a) of the Agreement.
"Trustee" has the meaning ascribed to it in the
recitals to the Agreement.
"United Group" means the Parent and its Affiliates and
Subsidiaries (excluding any Affiliate that is a Person exercising control over
the Parent, except members of the Schneider family and their agents or
affiliates and any Persons exercising control that have acquired their
shareholding from members of the Schneider family or their agents or affiliates,
for so long as such Persons do not hold Voting Securities as part of a voting
arrangement, group or pursuant or subject to an agreement with the other Persons
in the United Group).
"United Indentures" means the Indenture, dated as of February
5, 1998, by and between the Parent and Firstar Bank of Minnesota, N.A., as
trustee, and the Indenture, dated as of April 29, 1999, by and between the
Parent and Firstar Bank of Minnesota, N.A., as trustee.
"United Parties" has the meaning assigned to it in
the recitals to the Agreement.
"U.S. GAAP" has the meaning assigned in Section
5.1(c) of the Agreement.
"Voting Securities" of the Company (or in the case of Section
8.10, the Third Person) means every share of any class of capital stock of the
Company (or in the case of Section 8.10, the Third Person) that ordinarily has
voting power for the election of directors (or similar governing body) of the
Company (or in the case of Section 8.10, the Third Person), whether at all times
or only so long as no senior class of capital stock has such voting power by
reason of the occurrence of any contingency.
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Exhibit 2 to
Investment Agreement
REGISTRATION RIGHTS
Section 1. Effectiveness of Registration Rights. The
registration rights pursuant to Sections 2 and 3 hereof shall become effective
one year after the later of the Expiration Time and the Private Placement
Closing Date, unless the transfer restrictions set out in Section 7.1(a) of the
Agreement shall not apply solely because of the acquisition of Common Shares by
a Person or 13D Group in the circumstances described in Section 2.4(ii) of the
Agreement, in which case such registration rights shall become effective at such
time as such transfer restrictions become inapplicable.
Section 2. Registration on Request.
2.1. Notice. Upon written notice of the United Parties
requesting that the Company effect the registration under the Securities Act of
all or part of the Registrable Securities held by them, which notice shall
specify, subject to the terms of the Agreement, the intended method or methods
of disposition of such Registrable Securities, and subject to the Company's
right of first refusal under Section 7.2 of the Agreement, the Company will use
its best efforts to effect (at the earliest possible date) the registration,
under the Securities Act, of such Registrable Securities for disposition in
accordance with the intended method or methods of disposition stated in such
request, provided that:
(a) if the Company shall have previously effected a
registration with respect to Registrable Securities pursuant to this
Section 2 or Section 3, the Company shall not be required to effect a
registration pursuant to this Section 2 until a period of 60 days shall
have elapsed from the effective date of the most recent such previous
registration;
(b) if, in the reasonable judgment of the Company, a
registration at the time and on the terms requested would adversely
affect any public financing by the Company that had been contemplated
by the Company prior to the notice
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<PAGE>
by the United Parties requesting registration, the Company shall not be
required to file a registration statement in connection with such
request pursuant to this Section 2 until the earlier of (i) 150 days
after the date of the request for such registration and (ii) the
termination of any "black out" period required by the underwriters, if
any, in connection with such financing;
(c) if, while a registration request is pending pursuant to
this Section 2, the Company determines in good faith that the filing of
a registration statement would require the disclosure of material
information which the Company has a bona fide business purpose for
preserving as confidential or the Company is unable to comply with SEC
requirements, the Company shall not be required to file a registration
statement in connection with such request pursuant to this Section 2
until the earlier of (i) the date upon which such material information
is disclosed to the public or ceases to be material and (ii) 150 days
after the date of the request for such registration; and
(d) the United Parties shall have the right to exercise
registration rights pursuant to this Section 2 up to two times;
provided, however, that any such exercise shall relate to not less than
1,000,000 Registrable Securities with respect to the first registration
requested or 500,000 Registrable Securities with respect to the second
registration requested.
2.2. Registration Expenses. The United Parties shall pay up to
the first $200,000 of the expenses of the Company related to the registration,
offer and sale of Registrable Securities pursuant to this Section 2, including
without limitation filing and registration fees, accounting fees and
disbursements, printing costs, fees and expenses of counsel to the Company and
listing fees and expenses (collectively, the "Shared Expenses"). The United
Parties shall pay all underwriting fees and expenses, roadshow expenses incurred
by the Company, the United Parties and the underwriters and transfer taxes
attributable to Common Shares sold by them and all fees and expenses of their
counsel (collectively, "Other Expenses"); provided that in no event shall the
United Parties be required to pay any internal costs of the Company. The Shared
Expenses and Other Expenses are referred to herein collectively as the
"Registration Expenses".
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<PAGE>
2.3. Third Person Shares. The Company shall have the right to
cause the registration of securities for sale for the account of any Person
(excluding the Company in a primary offering of its Voting Securities) as part
of any registration of Registrable Securities requested pursuant to this Section
2, provided that the Company shall not have the right to cause the registration
of such securities if:
(a) in the reasonable judgment of the United Parties,
registration of such securities would adversely affect the offering and
sale of Registrable Securities then contemplated by United Parties,
until the earlier of (i) 90 days after the completion or abandonment of
such financing and (ii) the termination of any "black-out" period
required by the underwriters, if any, in connection with such
financing, or
(b) the United Parties do not receive assurances satisfactory
to them that the Person for which such securities are being registered
will pay its pro rata share of the Registration Expenses pursuant to
Section 2.2, including their pro rata share of the first $200,000 of
the Shared Expenses (provided that for purposes of this clause (b), the
guarantee by the Company to the United Parties of payment of such
Registration Expenses shall be satisfactory assurance to the United
Parties).
2.4. Broad Distribution. The Company shall be required to
register Registrable Securities pursuant to this Section 2 only if such
Registrable Securities are to be offered and sold in a broad distribution within
or outside the United States (or simultaneously in both).
Section 3. Incidental Registration
3.1. Notice and Registration. If the Company proposes to
register any of its Voting Securities ("Other Securities") for public sale under
the Securities Act, on a form and in a manner which would permit registration of
Registrable Securities for sale to the public under the Securities Act, it will
give prompt written notice to the United Parties of its intention to do so, and
upon the written request of the United Parties delivered to the Company within
15 Business Days after the giving of any such notice (which request shall
specify the Registrable Securities intended to be disposed of by the United
Parties and the intended method of disposition thereof), subject to the
Company's right of first
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<PAGE>
refusal under Section 7.2 of the Investment Agreement, the Company will use its
best efforts to effect, in connection with the registration of the Other
Securities, the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the United
Parties, to the extent required to permit the disposition (in accordance with
the intended method or methods thereof as aforesaid) of the Registrable
Securities so to be registered, provided that:
(a) if, at any time after giving such written notice of its
intention to register any Other Securities and prior to the effective
date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to
register the Other Securities, the Company shall give written notice of
such determination to the United Parties and thereupon the Company
shall be relieved of its obligation to register such Registrable
Securities in connection with the registration of such Other Securities
(but not from its obligation to pay Registration Expenses to the extent
incurred in connection therewith as provided in Section 3.2, which for
purposes of this paragraph 3.1(a) shall include its pro rata share of
the first $100,000 of the Shared Expenses), without prejudice, however,
to the rights of the United Parties immediately to request that such
registration be effected as a registration under Section 2;
(b) the Company will not be required to effect any
registration of Registrable Securities under this Section 3 if, in the
reasonable judgment of the Company, inclusion of any Registrable
Securities in the Company's registration statement at that time would
adversely affect the Company's own financing; and
(c) the Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental
to the registration of any of its securities in connection with
mergers, acquisitions, exchange offers, subscription offers, dividend
reinvestment plans or stock option or other employee benefit plans.
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<PAGE>
(d) subject to Section 2.1(d), no registration of Registrable
Securities effected under this Section 2 shall relieve the Company of
its obligation to effect registrations of Registrable Securities
pursuant to Section 2.
3.2. Registration Expenses. The Company will pay all Shared
Expenses related to the registration, offer and sale of securities pursuant to
Section 3; provided that with respect to any such registration the United
Parties shall pay (i) to the Company up to the first $100,000 of the Shared
Expenses; and (ii) their share of all Other Expenses attributable to the
Registrable Securities (which shall include all the fees and expenses of their
own counsel); and provided further, that in no event shall the United Parties be
required to pay any internal costs of the Company.
3.3. Broad Distribution. The Company shall be required to
register Registrable Securities pursuant to this Section 3 only if such
Registrable Securities are to be offered and sold in a broad distribution within
or outside the United States (or simultaneously in both).
Section 4. Registration Procedures.
4.1. Registration and Qualification. (a) If and whenever the
Company is required to use its best efforts to effect the registration of any
Registrable Securities under the Securities Act as provided in Sections 2 and 3,
the Company will as promptly as is reasonably practicable:
(i) prepare, file and use its best efforts to cause to become
effective a registration statement under the Securities Act regarding
the Registrable Securities to be offered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities
Act with respect to the disposition of all Registrable Securities until
the earlier of such time as all of such Registrable Securities have
been disposed of in accordance with the intended methods of disposition
by the United Parties and the expiration of 90 days after such
registration statement becomes effective;
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<PAGE>
(iii) furnish to the United Parties, and to any underwriter of
such Registrable Securities such number of conformed copies of such
registration statement and of each such amendment and supplement
thereto (in the case of the United Parties, or managing underwriter,
including all exhibits), such number of copies of the prospectus
included in such registration statement (including each preliminary
prospectus and any summary prospectus) or filed under Rule 424(b) under
the Securities Act in accordance with Rule 430A thereunder, in
conformity with the requirements of the Securities Act, such documents
incorporated by reference in such registration statement or prospectus,
and such other documents, as the United Parties or such underwriter may
reasonably request;
(iv) use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under
such other securities or blue sky laws of such States of the United
States as the United Parties or any underwriter of such Registrable
Securities shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable the United Parties
or any underwriter to consummate the disposition in such States of the
United States of its Registrable Securities covered by such
registration statement, except that the Company shall not for any such
purpose be required to qualify generally to do business as a foreign
corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to consent to
general service of process in any such jurisdiction;
(v) furnish to the United Parties, addressed to each of them,
(A) an opinion of counsel for the Company, dated the date of the
closing under the underwriting agreement relating to any underwritten
offering, and (B) a "cold comfort" letter signed by the independent
public accountants who have certified the Company's financial
statements included in such registration statement, covering
substantially the same matters with respect to such registration
statement (and the prospectus included therein) and, in the case of
such accountants' letter, with respect to events subsequent to the date
of such financial statements, as are customarily covered in opinions of
issuer's counsel and in accountants' letters delivered to underwriters
in underwritten public offerings
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<PAGE>
of securities and such other matters as the United Parties
may reasonably request; and
(vi) immediately notify the United Parties at any time when
the Company is aware that a prospectus relating to a registration
pursuant to Section 2 or 3 is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances
then existing, and at the request of the United Parties, prepare and
furnish to the United Parties a reasonable number of copies of a
supplement to or an amendment of such prospectus as may be necessary so
that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading in
the light of the circumstances then existing.
The Company may require the United Parties to furnish the Company such
information regarding themselves and the distribution of such securities as the
Company may from time to time reasonably request in writing and as shall be
required by law or by the SEC in connection with any registration.
(b) Each of the United Parties agrees that, upon receipt of
any notice from the Company of the happening of any event of the kind described
in Section 4.1(a)(vi) hereof, it will forthwith discontinue dispositions of
Registrable Securities pursuant to the Registration Statement covering such
Registrable Securities until receipt by it of the copies of the supplemented or
amended prospectus contemplated by Section 4.1(a)(vi) hereof.
(c) Subject to Section 3.1(a) and Section 4.1(a)(ii), if a
public offering is not completed within 90 days after the effective date of any
registration statement filed pursuant to Section 2 or Section 3, the Company
shall, at its option or at the request of the United Parties, withdraw from
registration any Registrable Securities which have not been sold during such
period.
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<PAGE>
4.2. Underwriting. (a) If requested by the underwriters for
any underwritten offering of Registrable Securities pursuant to a registration
requested hereunder, the Company will enter into an underwriting agreement with
such underwriters for such offering, such agreement to contain such
representations and warranties by the Company and such other terms and
provisions as are customarily contained in the underwriting agreements with
respect to secondary distributions, including, without limitation, indemnities
and contribution to the effect and to the extent provided in Section 7 and the
provision of opinions of counsel and accountants' letters to the effect and to
the extent provided in Section 4.1(v). Each of the United Parties shall be a
party to any such underwriting agreement and the representations and warranties
by, and the other agreements on the part of, the Company to and for the benefit
of such underwriter, shall also be made to and for the benefit of the United
Parties.
(b) In the event that any registration pursuant to Section 3
shall involve, in whole or in part, an underwritten offering, the Company may
require the Registrable Securities requested to be registered pursuant to
Section 3 to be included in such underwriting on the same terms and conditions
as shall be applicable to the Other Securities being sold through underwriters
under such registration. In such case, each of the United Parties shall be a
party to any such underwriting agreement. Such agreement shall contain such
representations, warranties and covenants by the United Parties and such other
terms and provisions as are customarily contained in underwriting agreements
with respect to secondary distributions, including, without limitation,
indemnities and contribution to the effect and to the extent provided in Section
7. The representations and warranties in such underwriting agreement by, and the
other agreements on the part of, the Company to and for the benefit of such
underwriters, shall also be made to and for the benefit of the United Parties.
Section 5. Preparation; Reasonable Investigation. In
connection with the preparation and filing of each registration statement
registering Registrable Securities under the Securities Act, the Company will
give the United Parties and the underwriters, if any, and their respective
counsel (collectively, the "Inspectors"), such reasonable and customary access
to its books and records (collectively, the "Records") and such opportunities to
discuss the business of the Company with its officers and the independent public
accountants who
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<PAGE>
have certified its financial statements as shall be necessary, in the opinion of
the United Parties and the Inspectors, to conduct a reasonable investigation
within the meaning of the Securities Act. Records which the Company reasonably
determines to be confidential and which it notifies the Inspectors in writing
are confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary or appropriate to avoid or correct a
misstatement or omission in the registration statement, (ii) the portion of the
Records to be disclosed has otherwise become publicly known, (iii) the
information in such Records is to be used in connection with any litigation or
governmental investigation or hearing relating to any registration statement or
(iv) the release of such Records is ordered pursuant to a subpoena or other
order. Each Holder agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company.
Section 6. Holdback Agreements.
(a) Restriction on Public Sale by the United Parties. Each of
the United Parties agrees not to effect any substantial public sale or
distribution of Voting Securities of the Company during the ten days prior to,
and during the 30-day period beginning on, the later of the effective date of a
registration statement and the commencement of a public offering under a
registration statement (except as part of such registration statement or
offering), if requested by the Company in the case of a non-underwritten public
offering or if requested by the managing underwriter (or underwriters) in the
case of an underwritten public offering.
(b) Restriction on Public Sale by the Company. The
-----------------------------------------
Company agrees not to effect any substantial public sale or
distribution of its Voting Securities (other than any sale or
distribution of such securities in connection with any offering
of securities under an employee or director benefit plan or
dividend reinvestment plan) during the ten days prior to, and
during the 30-day period beginning on, the later of the
effective date of a registration statement, and the
commencement of a public offering under a registration
statement, filed pursuant to Section 2 hereof (except as part
of such registration statement or offering).
Section 7. Indemnification and Contribution. (a)
In the event of any registration of any Registrable Securities
hereunder, the Company will enter into customary
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<PAGE>
indemnification arrangements to indemnify and hold harmless the United Parties,
their respective directors and officers, each other person who participates as
an underwriter in the offering or sale of such securities, each officer and
director of each underwriter, and each other person, if any, who controls the
United Parties or any such underwriter within the meaning of the Securities Act
against any losses, claims, damages, liabilities and expenses, joint or several,
to which such person may be subject under the Securities Act or otherwise
insofar as such losses, claims, damages, liabilities or expenses (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus or final prospectus included therein
or filed under Rule 424(b) under the Securities Act, or any amendment or
supplement thereto, or any document incorporated by reference therein, or (ii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
the Company will reimburse each such person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided that the Company
shall not be liable in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof) or expense arises
out of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such registration statement, any such
preliminary prospectus or final prospectus, amendment or supplement in reliance
upon and in conformity with written information expressly furnished to the
Company by the United Parties or such underwriter for use in connection with the
preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the United Parties or
any such underwriter and shall survive the transfer of such securities by the
United Parties. The Company also shall agree to provide provision for
contribution as shall be reasonably requested by any underwriters in
circumstances where such indemnity is held unenforceable.
(b) Each of the United Parties, by virtue of exercising its
registration rights hereunder, agrees and undertakes severally to enter into
customary indemnification arrangements to indemnify and hold harmless (in the
same manner and to the same extent as set forth in clause (a) of this
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<PAGE>
Section 7) the Company, each director of the Company, each officer of the
Company who shall sign such registration statement, each other person who
participates as an underwriter in the offering or sale of such securities, each
officer and director of each underwriter, and each other person, if any, who
controls the Company or any such underwriter within the meaning of the
Securities Act, with respect to any statement in or omission from such
registration statement, any preliminary prospectus or final prospectus included
therein, or any amendment or supplement thereto, if such statement or omission
was made in reliance upon and in conformity with written information expressly
furnished by it to the Company for use in connection with such registration
statement, preliminary prospectus or final prospectus included therein or any
amendment or supplement thereto. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of the Company or
any such director, officer or controlling person and shall survive the transfer
of the registered securities by such holder of Registered Securities. Each of
the United Parties also shall agree to provide provision for contribution as
shall reasonably be requested by the Company or any underwriters in
circumstances where such indemnity is held unenforceable.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any indemnified Person in respect
of which indemnity may be sought pursuant to this Section, such indemnified
Person shall promptly notify the indemnifying Person in writing and the
indemnifying Person, upon request of the indemnified Person, shall retain
counsel satisfactory to the indemnified Person to represent the indemnified
Person and any others the indemnifying Person may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified Person shall have the right
to retain its own counsel, but the fees and disbursements of such counsel shall
be at the expense of such indemnified Person unless (i) the indemnifying Person
shall have failed to retain counsel for the indemnified Person as aforesaid,
(ii) the indemnifying Person and such indemnified Person shall have mutually
agreed to the retention of such counsel or (iii) in the reasonable opinion of
such indemnified Person representation of such indemnified Person by the counsel
retained by the indemnifying Person would be inappropriate due to actual or
potential differing interests between such indemnified Person and any other
Person represented by such counsel in such proceeding. The indemnifying Person
shall not
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<PAGE>
be liable for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there by a final judgment for the
plaintiff, the indemnifying Person agrees to indemnify the indemnified Person
from and against any loss or liability by reason of such settlement or judgment.
(d) Indemnification and contribution similar to that specified
in the preceding subdivisions of this Section 7 (with appropriate modifications)
shall be given by the Company and the United Parties with respect to any
required registration or other qualification of such Registrable Securities
under any federal or state law or regulation of governmental authority of the
United States other than the Securities Act.
Section 8. Participation in Underwritten Registrations. Each
of the United Parties may not participate in any underwritten registration
hereunder unless it (a) agrees to sell its securities on the basis provided in
any underwriting arrangements approved by the Company and (b) completes and
executes all questionnaires, powers of attorney, indemnities, agreements of
contribution, underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangement.
Section 9. Benefits of Registration Rights. The
-------------------------------
Company shall not be obligated to effect any registration
pursuant to Section 2.1 or Section 3.1 hereof if, in the
written opinion of counsel to the Company who shall be
reasonably satisfactory to the United Parties, the intended
method or methods of disposition of any Registrable Securities
by the United Parties may be effected without registration
under the Securities Act and any certificate evidencing the
Registrable Securities so to be disposed need not bear the
restrictive legend set forth in Section 8.3 of the Agreement.
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Exhibit 3 to
Investment Agreement
SBS BROADCASTING S.A.
Officer's Certificate
Each of ___________________, the ______________ of SBS
Broadcasting S.A., a company organized under the laws of Luxembourg (the
"Company"), and ________, the __________ of the Company, pursuant to Section 3.3
(iv) of the Investment Agreement, dated as of June 29, 1999 (the "Agreement"),
between the Company, on the one hand, and United Pan-Europe Communications N.V.,
a public corporation organized with limited liability under the laws of The
Netherlands, and United International Holdings, Inc., a corporation organized
under the laws of the State of Delaware doing business as UnitedGlobalCom, on
the other hand, hereby certifies that, to the best of his knowledge, after
reasonable investigation:
(1) The representations and warranties made by the Company in
the Agreement were true and correct when made and are true and correct
on the date hereof as though made on and as of this date.
(2) The Company has performed and complied in all material
respects with all agreements, obligations and conditions required by
the Agreement to be performed or complied with by the Company at or
before the date hereof.
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IN WITNESS WHEREOF, each of the undersigned has hereunto
signed his name.
Date: June __, 1999
By:
By:
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Exhibit 4A to
Investment Agreement
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Exhibit 4B to
Investment Agreement
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Exhibit 5 to
Investment Agreement
__________, 1999
United International Holdings, Inc.
4643 South Ulster Street, #1300
Denver, Colorado 80237 U.S.A.
United Pan-Europe Communications N.V.
Fred. Roekestraat 123
1070 BT Amsterdam
The Netherlands
Dear Sirs:
Reference is made to the Investment Agreement, dated as of
June 29, 1999 (the "Investment Agreement"), by and between you and us.
Capitalized terms used but not defined herein have the meanings assigned to them
in the Investment Agreement. You and we hereby agree as follows:
(1) The Company consents to the designation of the Company by
the Board of Directors of the Parent as a Restricted Affiliate, and
agrees that as of the date hereof and for so long as the Company
remains a Restricted Affiliate, the Company shall, and shall cause each
of its Subsidiaries, not to do any of the following in contravention of
each United Indenture without the prior written approval of the United
Parties:
(a) make any Investment that is restricted by Section
4.7 (Limitation on Restricted Payments) of each
United Indenture or that is a Permitted Basket
Investment;
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(b) make any dividend or other distribution in
respect of the Equity Interests of the Company
and its Subsidiaries or any purchase,
redemption or other acquisition or retirement
of such Equity Interests or Equity Interest of
the United Parties or their Subsidiaries or
any other Restricted Payment that is not
permitted by Section 4.7 (Limitation on
Restricted Payments) of each United Indenture;
(c) incur any Indebtedness (including Acquired
Indebtedness and Indebtedness pursuant to clause
(a) of the third sentence of Section 4.9 of each
United Indenture) or Disqualified Capital Stock
that is not permitted by Section 4.9 (Additional
Indebtedness and Disqualified Capital Stock) of
each United Indenture;
(d) engage to any substantial extent in any line or
lines of business activity other than that which
is a Related Business as set out in Section 4.12
of each United Indenture; and
(e) take any other action that Restricted Affiliates
are not permitted to take under the United
Indentures.
(2) The Company hereby agrees that if the acquisition by the
Company of the assets of Central European Media Enterprises Ltd. is
consummated during such time as the Company is designated and remains a
Restricted Affiliate, CME Media Enterprises B.V., which will become a
wholly owned Subsidiary of the Company as a result of such acquisition,
shall be designated by the Parent's Board of Directors to be a
Restricted Affiliate immediately upon the consummation of such
acquisition, and the Company
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shall procure that such Subsidiary shall comply with the terms and
conditions set forth in Section (1) above.
(3) The agreements set forth in Sections (1) and (2) above
shall terminate immediately upon the earlier of (a) the date that a RA
Status Termination Event occurs and (b) the later of (i) August 31,
1999 and (ii) the date 10 Business Days after a registration statement
is declared effective by the U.S. Securities and Exchange Commission
covering the Common Shares acquired by the Investor pursuant to
Sections 2.1 and 2.2 of the Investment Agreement provided that during
such 10 Business Day period no stop order covering such registration
statement has been issued, such registration statement has not been
withdrawn by the Company and such registration statement is not
required to be amended. Immediately following such date the Board of
Directors of the Parent shall designate the Company (and any of its
Subsidiaries or Affiliates that have been designated Restricted
Affiliates) not to be Restricted Affiliates. After such date,
irrespective of any action the United Parties may have taken or not
taken under the United Indentures, the Company and its Subsidiaries and
Affiliates shall be deemed not to be Restricted Affiliates and shall
not have any obligations under this letter agreement or the Investment
Agreement relating to such status.
(4) The Company shall not be deemed to have incurred or to
have any obligation under the United Indentures or any securities
outstanding under the United Indentures, including without limitation
any obligation to the holders of any such securities or the trustee
under the United Indentures, or any other creditors of the United Group
or any other Person, and the United Parties hereby jointly
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and severally agree to indemnify and hold harmless the Company and its
Subsidiaries and Affiliates and its and their employees, officers,
directors, agents and advisers against any claims, losses, expenses,
costs (including reasonable fees and expenses of counsel) or damages of
any kind suffered or incurred by the Company or its Subsidiaries or
Affiliates as a result of any claims or actions by Persons other than
the United Parties arising out of or relating to the designation of the
Company or any of its Subsidiaries or Affiliates as a Restricted
Affiliate pursuant to or in connection with this letter agreement and
the Investment Agreement.
(5) Notwithstanding Section 8.6 of the Investment Agreement,
this letter agreement shall be deemed upon execution to be incorporated
in, and a part of, the Investment Agreement.
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(6) This letter agreement shall be governed by and construed
in accordance with the laws of the State of New York.
SBS BROADCASTING S.A.
By:
Name:
Title:
Accepted and Agreed:
UNITED INTERNATIONAL HOLDINGS, INC.
By:
Name:
Title:
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:
Name:
Title:
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Exhibit 6A to
Investment Agreement
UNITED INTERNATIONAL HOLDINGS, INC.
Officer's Certificate
Each of ___________________, the ______________ of United
International Holdings, Inc., a corporation organized under the laws of the
State of Delaware (the "Parent"), and ________, the __________ of the Parent,
pursuant to Section 3.4 (iv) of the Investment Agreement, dated as of June 29,
1999 (the "Agreement"), between the Parent and United Pan-Europe Communications
N.V., a public corporation organized with limited liability under the laws of
The Netherlands doing business as UnitedGlobalCom, on the one hand, and SBS
Broadcasting S.A., a company organized under the laws of Luxembourg, on the
other hand, hereby certifies that, to the best of his knowledge, after
reasonable investigation:
(1) The representations and warranties made by the Parent in
the Agreement were true and correct when made and are true and correct
on the date hereof as though made on and as of this date.
(2) The Parent has performed and complied in all material
respects with all agreements, obligations and conditions required by
the Agreement to be performed or complied with by the Parent at or
before the date hereof.
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IN WITNESS WHEREOF, each of the undersigned has hereunto
signed his name.
Date: June __, 1999
By:
By:
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Exhibit 6B to
Investment Agreement
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Officer's Certificate
Each of ___________________, the ______________ of United
Pan-Europe Communications N.V., a public corporation organized with limited
liability under the laws of The Netherlands (the "Investor"), and ________, the
__________ of the Investor, pursuant to Section 3.4 (iv) of the Investment
Agreement, dated as of June 29, 1999 (the "Agreement"), between the Investor and
United International Holdings, Inc., a corporation organized under the laws of
the State of Delaware doing business as UnitedGlobalCom, on the one hand, and
SBS Broadcasting S.A., a company organized under the laws of Luxembourg, on the
other hand, hereby certifies that, to the best of his knowledge, after
reasonable investigation:
(1) The representations and warranties made by the Investor in
the Agreement were true and correct when made and are true and correct
on the date hereof as though made on and as of this date.
(2) The Investor has performed and complied in all material
respects with all agreements, obligations and conditions required by
the Agreement to be performed or complied with by the Investor at or
before the date hereof.
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IN WITNESS WHEREOF, each of the undersigned has hereunto
signed his name.
Date: June __, 1999
By:
By:
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Exhibit 7A to
Investment Agreement
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Exhibit 7B to
Investment Agreement
AGREEMENT AND PLAN OF MERGER
AMONG
@ENTERTAINMENT, INC.,
UNITED PAN-EUROPE COMMUNICATIONS N.V.
AND
BISON ACQUISITION CORP.
DATED AS OF JUNE 2, 1999
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AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of June 2, 1999, among
@Entertainment, Inc., a corporation organized under the laws of the State of
Delaware (the "Company"), United Pan-Europe Communications N.V., a corporation
organized under the laws of The Netherlands ("Parent") and Bison Acquisition
Corp., a corporation organized under the laws of the State of Delaware ("Merger
Sub").
RECITALS
WHEREAS, the Executive Board of Parent and the respective Boards of
Directors of Merger Sub and the Company have approved the acquisition of the
Company by Merger Sub;
WHEREAS, in contemplation thereof it is proposed that Merger Sub will
make a tender offer (as it may be amended from time to time as permitted by this
Agreement, the "Offer") to purchase all the issued and outstanding shares of
Common Stock, subject to the terms and conditions of this Agreement, at a price
of $19.00 per share net to the seller in cash (such amount, or any other amount
per share of Common Stock to be paid pursuant to the Offer, the "Offer Price");
WHEREAS, to complete such acquisition, the Executive Board of Parent
and the respective Boards of Directors of Merger Sub and the Company, have
approved the merger of Merger Sub into the Company (the "Merger"), pursuant to
and subject to the terms and conditions of this Agreement; and
WHEREAS, the Board of Directors of the Company has unanimously (x)
determined that each of the Offer and the Merger are advisable and fair to, and
in the best interests of, the holders of the capital stock of the Company,
including, but not limited to, the holders of the Common Stock, (y) approved the
Offer and the Merger and (z) recommended the acceptance of the Offer, the
approval of the Merger and the approval and adoption of this Agreement by the
stockholders of the Company; and
WHEREAS, Parent and Merger Sub are unwilling to enter into this
Agreement unless certain holders of Common Stock immediately following the
execution and delivery of this Agreement, enter into stockholders agreements
(the "Common Stockholders Agreements") among Parent, Merger Sub and each of
certain holders of Common Stock, Options and Company Warrants providing for,
among other things, the agreement of such holders to tender all shares of Common
Stock owned by such persons pursuant to the Offer, the granting to Parent and
Merger Sub of an option to purchase all such shares of Common Stock, Options and
Company Warrants owned by such Person and requiring the Parent and Merger Sub to
purchase the Options and Company Warrants if such option is no exercised, in
each case under the circumstances set forth in such agreements; and
WHEREAS, Parent and Merger Sub are unwilling to enter into this
Agreement unless each of the holders of Company Preference Shares immediately
following the execution and delivery of this Agreement, enter into stockholders
agreements with Parent and Merger Sub (the "Preferred Stockholders Agreements"
and, collectively with the Common Stockholders Agreements, the "Stockholders
Agreements") among Parent, Merger Sub and each such holder providing for, among
other things, the agreement of such holders to grant to Parent and Merger Sub an
option to purchase all such Company Preference Shares and requiring Parent and
Merger Sub to purchase such Company Preference Shares if such option is not
exercised, in each case, under the circumstances set forth in such agreements;
and
WHEREAS the Board of Directors of the Company has (i) approved the
terms of the Stockholders Agreements and the transactions contemplated thereby,
including for the purposes of Section 203 of the DGCL and (ii) approved Parent
and Merger Sub and the Stockholders party thereto entering into the Stockholders
Agreements which are to be executed following the execution hereof; and
WHEREAS, Parent, Merger Sub and the Company desire to make certain
representations, warranties, covenants and agreements in connection with the
Merger;
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements set forth herein, Parent, Merger Sub and
the Company hereby agree as follows:
ARTICLE I
Definitions
As used in this Agreement, the following terms shall have the
respective meanings set forth below:
"Acquisition Proposal": As defined in Section 8.2(a).
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"Affiliate": As defined in Rule 12b-2 under the Exchange Act.
"Agreement": as defined in the preamble hereto.
"Agreements and Instruments": as defined in Section 6.8.
"Authorization": Any consent, approval or authorization of,
expiration or termination of any waiting period requirement (including pursuant
to the HSR Act) by, or filing, registration, qualification, declaration or
designation with, any Governmental Body.
"Business Plan": As defined in Section 8.1(d).
"By-Laws": The by-laws of the Company.
"Cash Payment": As defined in Section 8.11(b).
"Certificate of Merger": The certificate of merger with respect to
the merger of the Company with and into Merger Sub, containing the provisions
required by, and executed in accordance with, Section 251 of the DGCL.
"Claim": As defined in Section 8.7(a).
"Closing": The closing of the Merger.
"Closing Date": The date on which the Closing occurs.
"Code": The Internal Revenue Code of 1986, as amended, and all
regulations promulgated thereunder, as in effect from time to time.
"Common Stock": The Company's common stock, par value $0.01 per share.
"Common Stockholders Agreements": As defined in the fifth recital
hereof.
"Company": @Entertainment, Inc., a Delaware corporation.
"Company Certificates": As defined in Section 5.2(a).
"Company Charter": The Amended and Restated Certificate of
Incorporation of the Company, as amended to the date hereof and as it may be
further amended prior to the Effective Date with the consent of Parent pursuant
to Section 8.1.
"Company Disclosure Statement": The disclosure statement, dated the
date of this Agreement, delivered by the Company to Parent.
"Company Preference Shares": The Company's Series A and Series B 12%
Cumulative Preference Shares, par value $0.01 per share.
"Company SEC Reports": As defined in Section 6.12.
"Company Stockholders' Meeting": As defined in Section 8.4.
"Company Warrants": Warrants to purchase shares of Common Stock.
"Confidentiality Agreement": The Confidentiality Agreement between
Parent and the Company.
"Control": With respect to any Person, the possession, direct or
indirect, 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.
"DGCL": The Delaware General Corporation Law.
"Dissenting Stockholder": As defined in Section 5.2(c).
"Effective Time": As defined in Section 3.2.
"Employee Plan": As defined in Section 6.9(a).
"Employees": As defined in Section 6.9(a).
"ERISA": The Employee Retirement Income Security Act of 1974, as
amended, and all regulations promulgated thereunder, as in effect from time to
time.
"ERISA Affiliates": Any trade or business, whether or not
incorporated, that is treated as a single employer with the Company or any of
its Subsidiaries under Section 414 of the Code.
"Exchange Act": The Securities Exchange Act of 1934, as amended.
"Executive Agreements": As defined in Section 8.9(a).
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"Executive Officer": Any "officer" (determined in accordance with
Rule 16a-1(f) under the Exchange Act as in effect on the date hereof) of an
entity.
"Governmental Body": Any supranational, national, provincial, county,
local, municipal or other legislative or executive body or governmental
department, authority, commission, court, board, bureau, agency or
instrumentality, including without limitation, any of the foregoing constituted
by the Republic of Poland, the United Kingdom, the United States of America or
any of their respective political subdivisions.
"Government Licenses": As defined in Section 6.4.
"HSR Act": The Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended.
"Indemnified Parties": As defined in Section 8.7(a).
"Information Statement": As defined in Section 2.3.
"Intellectual Property": As defined in Section 6.11.
"knowledge": With respect to the Company, the actual knowledge of any
Executive Officer of the Company and, with respect to Parent or Merger Sub, the
actual knowledge of any Executive Officer of Parent or Merger Sub, as the case
may be.
"Law": Any foreign or domestic law, statute, code, ordinance, rule,
regulation promulgated, or order, judgment, writ, stipulation, award, injunction
or decree entered by any Governmental Body.
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"Letter of Transmittal": As defined in Section 2.1(b).
"Lien": As defined in Section 6.17.
"Material Adverse Effect": A material adverse effect on the
business, properties, assets, liabilities, operations, results of operations or
condition (financial or otherwise) of the Company and its Subsidiaries taken
as a whole.
"Material Systems": As defined in Section 6.22.
"Merger": As defined in the third recital hereto.
"Merger Consideration": As defined in Section 5.1(b).
"Merger Sub": Bison Acquisition Corp., a Delaware corporation.
"Merger Sub Common Stock": Merger Sub's common stock, par value
$0.01 per share.
"Minimum Condition": As defined in Annex A to this Agreement.
"NASDAQ": The Nasdaq Stock Market, National Market System.
"Offer": As defined in the second recital hereof.
"Offer Documents": As defined in Section 2.1(b).
"Offer Price": As defined in the second recital hereof.
"Offer to Purchase": As defined in Section 2.1(b).
"Option": As defined in Section 8.11(a).
"Parent": United Pan-Europe Communications N.V., a corporation
organized under the laws of The Netherlands.
"Parent Disclosure Statement": The disclosure statement, dated the
date of this Agreement, delivered by Parent to the Company.
"Parent Representatives": As defined in Section 8.6.
"Paying Agent": As defined in Section 5.2.
"Payment Date": The date which is the third business day after the
Tender Offer Acceptance Date.
"Payment Fund": As defined in Section 5.2(c).
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"PCI": Poland Communications Inc., a New York corporation and Wholly
Owned Subsidiary of the Company.
"Permitted Investments": As defined in Section 5.2(c).
"Permitted Liens": As defined in Section 6.17.
"Person": Any individual or corporation, company, partnership,
trust, incorporated or unincorporated association, joint venture or other entity
of any kind.
"Preferred Stockholders Agreements": As defined in the sixth recital
herein.
"Proxy Statement": As defined in Section 6.16
"Relevant Date": Each of the following dates: September 4, 1999,
September 9, 1999, December 31, 1999, January 1, 2000, February 28, 2000,
February 29, 2000, March 1, 2000, December 31, 2000, and January 1, 2001.
"Schedule 14D-1": As defined in Section 2.1(b).
"Schedule 14D-9": As defined in Section 2.2.
"SEC": The Securities and Exchange Commission.
"Securities Act": The Securities Act of 1933, as amended.
"Stockholders Agreements": As defined in the sixth recital hereof.
"Stock Incentive Plans": As defined in Section 5.5(a).
"Stock Options": As defined in Section 5.5(a).
"Stock Plans": As defined in Section 5.5(a).
"Subsidiary": As to any Person, any other Person of which more than
(i) 50% of the equity and (ii) 50% of the voting interests are owned, directly
or indirectly, by such first Person; provided that, for purposes of the
covenants set forth in Article VIII, references to Subsidiaries shall not
include any Person as to which such first Person's voting interests are subject
to a voting agreement, proxy, management contract or other arrangement as a
result of which such first Person does not Control such other Person. For the
avoidance of doubt, the term "Subsidiary", when applied to the Company, includes
any Person listed as a Subsidiary on Schedule 6.2 to the Company Disclosure
Statement.
"Superior Proposal": As defined in Section 8.4(a).
"Surviving Corporation": Shall mean the Company in its capacity as
the surviving corporation in the Merger pursuant to Section 3.1 of this
Agreement.
"Tax": As defined in Section 6.10(e).
"Tax Controversy": As defined in Section 6.10(b).
"Tax Return": As defined in Section 6.10(e).
"Tender Offer Acceptance Date": The date on which Merger Sub shall
have accepted for payment the shares of Common Stock validly tendered and not
withdrawn prior to the expiration date of the Offer.
"Tender Offer Conditions": As defined in Section 2.1(a).
"Wholly Owned Subsidiary": As to any Person, a Subsidiary of such
Person 100% of the equity and voting interest in which (other than directors'
qualifying shares) is owned, directly or indirectly, by such Person.
"Voting Debt": As defined in Section 6.6(a).
"Year 2000 Compliant": As defined in Section 6.22.
ARTICLE II
The Offer
2.1 The Offer. (a) Provided that this Agreement shall not have been
terminated in accordance with Article X hereof and so long as none of the events
set forth in Annex A hereto (the "Tender Offer Conditions") shall have occurred
and are continuing (unless such event shall have been waived by Parent or Merger
Sub), as promptly as practicable, but in no event later than the fifth business
day after the date of this Agreement, Parent and Merger Sub shall, and Parent
shall cause Merger Sub to, commence the Offer at the Offer Price. The initial
expiration date for the Offer shall be the twentieth business day following the
commencement of the Offer. The obligations of Merger Sub to accept for payment
and to pay for any shares of Common Stock tendered shall be subject only to the
Tender Offer Conditions, any of which may be waived by Parent or Merger Sub in
their sole discretion; provided, however, that Merger Sub shall not waive the
Minimum Condition without the prior written consent of the Company. The Tender
Offer Conditions are for the sole benefit of Parent and Merger Sub and may be
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asserted by Parent and Merger Sub regardless of the circumstances giving rise to
any such Tender Offer Conditions or, except as expressly set forth herein, may
be waived by Parent and Merger Sub in whole or in part. Parent and Merger Sub
expressly reserve the right to modify the terms of the Offer; provided however,
that without the prior written consent of the Company, Merger Sub shall not (i)
reduce the number of shares of Common Stock to be purchased in the Offer, (ii)
reduce the Offer Price, (iii) modify or add to the Tender Offer Conditions, (iv)
change the form of consideration payable in the Offer or (v) make any other
change in the terms of the Offer which is materially adverse to the holders of
Common Stock. Notwithstanding the foregoing sentence, Merger Sub may, without
the consent of the Company, (A) extend the Offer, if at the then scheduled
expiration date of the Offer any of the conditions to Merger Sub's obligations
to purchase the shares of Common Stock have not been satisfied or waived, until
the third business day after the day Merger Sub reasonably believes to be the
earliest date on which such conditions will be satisfied, (B) extend the Offer
from time to time up to a maximum of an aggregate of 30 days beyond the first
day all of the Tender Offer Conditions have been met, and/or (C) extend the
Offer for any period required by any rule, regulation, interpretation or
position of the SEC or the staff thereof applicable to the Offer.
Notwithstanding the foregoing, (x) the Offer may not, without the Company's
written consent, be extended beyond the date of termination of this Agreement
pursuant to Section 10.1(a) and (y) the Offer may not, without the Company's
prior written consent, be extended pursuant to clause (A) above if the failure
to satisfy any condition was caused by a material breach by Parent or Merger Sub
of any of their representations, warranties, covenants or agreements set forth
in this Agreement. Notwithstanding any thing to the contrary in this Agreement,
Parent and Merger Sub agree that if immediately prior to any scheduled
expiration date of the Offer, the Regulatory Conditions (as defined in Annex A)
shall not have been satisfied, but at such scheduled expiration date each of the
other conditions set forth in Annex A (other than the Minimum Condition) shall
then be satisfied, at the request of the Company, Merger Sub shall extend the
Offer from time to time, subject to the right of Parent, Merger Sub or the
Company to terminate this Agreement pursuant to the terms hereof. Upon the terms
and subject to the conditions of the Offer, Merger Sub shall, and Parent shall
cause Merger Sub to, promptly purchase all shares of Common Stock which are
validly tendered on or prior to the expiration of the Offer and not withdrawn.
Parent shall provide, or cause to be provided, to Merger Sub on a timely basis
all funds necessary to accept for payment, and pay for, all shares of Common
Stock that Merger Sub becomes obligated to purchase pursuant to the Offer.
(b) As soon as reasonably practicable on the date the Offer is
commenced, Parent and Merger Sub shall file, and Parent shall cause Merger Sub
to file, with the SEC and disseminate to the holders of shares of Common Stock
to the extent required by law a Tender Offer Statement on Schedule 14D-1
(together with all amendments and supplements thereto, the "Schedule 14D-1")
with respect to the Offer. The Schedule 14D-1 shall contain (included as an
exhibit) or shall incorporate by reference an offer to purchase (the "Offer to
Purchase") and a form of the related letter of transmittal (the "Letter of
Transmittal"), as well as all other information and exhibits required by law
(which Schedule 14D-1, Offer to Purchase, Letter of Transmittal and such other
information and exhibits, together with any supplements or amendments thereto,
are referred to herein collectively as the "Offer Documents"). The Company and
its counsel shall be given the opportunity to review and comment upon the
Schedule 14D-1 and any amendments thereto prior to their filing with the SEC.
The Schedule 14D-1 will comply in all material respects with the provisions of
applicable federal securities laws and, on the date filed with the SEC and the
date first published, sent or given to the Company's stockholders, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they are made, not
misleading, except that no representation is made by Parent or Merger Sub with
respect to any information supplied by the Company expressly in writing for
inclusion or incorporation by reference in the Schedule 14D-1. Parent and Merger
Sub agree to promptly provide the Company and its counsel with (i) any comments
Parent, Merger Sub or their counsel may receive from the SEC or its staff with
respect to the Schedule 14D-1 after the receipt of such comments and (ii) copies
of any responses by Merger Sub or Parent to such comments. Each of Parent and
Merger Sub agrees to promptly correct any information provided by it for use in
the Offer Documents that shall be, or have become, false or misleading in any
material respect, and Parent and Merger Sub further agree to take all steps
necessary to cause the Schedule 14D-1 as so corrected to be filed with the SEC
and the other Offer Documents as so corrected to be disseminated to holders of
Common Stock, in each case as and to the extent required by applicable federal
securities laws. In the event that the Offer is terminated or withdrawn by
Merger Sub, Parent and Merger Sub shall cause all of the tendered shares of
Common Stock to be returned to the registered holders of the shares of Common
Stock represented by the certificate or certificates surrendered to the Paying
Agent.
2.2 Company Actions. (a) The Company hereby consents to the Offer and
the Merger and represents that (X) its Board of Directors (at a meeting duly
called and held) has by the unanimous vote of the directors, (i) determined that
each of the Offer and the Merger is (x) advisable and (y) fair to, and in the
best interests of, the holders of shares of capital stock of the Company,
including but not limited to holders of shares of Common Stock, (ii) approved
the Offer and the Merger and approved and adopted this Agreement, the
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Stockholder Agreements and the transactions contemplated hereby and thereby in
accordance with the provisions of the DGCL, (iii) recommended acceptance of the
Offer, approval of the Merger and approval and adoption of this Agreement by the
stockholders of the Company, (iv) approved the changes in the Options, Company
Warrants, Stock Incentive Plans and Stock Plans contemplated by this Agreement,
and (v) taken all other applicable action necessary to render (x) Section 203 of
the DGCL and any other applicable state takeover statutes and (y) Article VIII
of the Company Charter inapplicable to the Offer and the Merger; and (B) Goldman
Sachs International has delivered to the Board of Directors of the Company its
opinion that the consideration to be received by the holders of Common Stock,
other than Parent and Merger Sub, pursuant to the Offer and the Merger is fair
to such holders of Common Stock from a financial point of view, subject to the
assumptions and qualifications contained in such opinion.
(b) The Company shall file with the SEC, as soon as practicable on the
date of the commencement of the Offer, a Solicitation/Recommendation Statement
on Schedule 14D-9 (together with all amendments and supplements thereto, the
"Schedule 14D-9") containing the recommendations referred to in clause (X) of
Section 2.2(a) and shall disseminate the Schedule 14D-9 as required by Rule
14d-9 under the Exchange Act. Parent and Merger Sub and their counsel shall be
given the opportunity to review and comment upon the Schedule l4D-9 and any
amendments thereto prior to their filing with the SEC. The Schedule 14D-9 will
comply in all material respects with the provisions of applicable federal
securities laws and, on the date filed with the SEC and on the date first
published, sent or given to the Company's stockholders, shall not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading, except
that no representation is made by the Company with respect to information
supplied by Parent or Merger Sub in writing for inclusion in the Schedule 14D-9.
The Company agrees to provide Parent and its counsel with any comments the
Company or its counsel may receive from the SEC or its staff with respect to the
Schedule 14D-9 promptly after the receipt of such comments and shall provide
Parent and its counsel an opportunity to participate, including by participating
with the Company and its counsel in any discussions with the SEC or its staff,
in the response of the Company to such comments.
(c) In connection with the Offer, the Company will promptly furnish
Merger Sub with mailing labels, security position listings and any available
listing or computer list containing the names and addresses of the record
holders of the Common Stock as of the most recent practicable date and shall
furnish Merger Sub with such additional information (including, but not limited
to, updated lists of holders of Common Stock and their addresses, mailing labels
and lists of security positions) and such other assistance as Merger Sub or its
agents may reasonably request in communicating the Offer to the Company's
stockholders. Subject to the requirements of applicable law, and except for such
steps as are necessary to disseminate the Offer Documents and any other
documents necessary to consummate the Merger, Parent and its Affiliates and
associates (as defined in Rule 12b-2 under the Exchange Act) shall hold in
confidence the information contained in any such labels, listings and files,
will use such information only in connection with the Offer and the Merger and,
if this Agreement shall be terminated in accordance with Article X, shall
promptly deliver to the Company all copies of such information then in their
possession and shall certify in writing to the Company their compliance with
this Section 2.2(c).
(d) The Company has been advised that each of its directors and
Executive Officers intends to tender pursuant to the Offer all shares of Common
Stock owned of record and beneficially by him or her, if any, except to the
extent such tender would violate applicable securities laws.
2.3 Composition of the Board of Directors. (a) Promptly upon the
acceptance for payment of, and payment by Merger Sub in accordance with the
Offer for, shares of Common Stock equal to at least a majority of the
outstanding shares of Common Stock, pursuant to the Offer, Merger Sub shall be
entitled to designate up to such number of directors on the Board of Directors
of the Company, rounded up to the next whole number, as will give Merger Sub,
subject to compliance with Section 14(f) of the Exchange Act and Rule 14f-1
promulgated thereunder, representation on such Board of Directors equal to at
least that number of directors which equals the product of the total number of
directors on the Board of Directors (giving effect to the directors elected
pursuant to this sentence) multiplied by a fraction, the numerator of which
shall be the number of shares of Common Stock beneficially owned by Merger Sub
and Parent and the denominator of which shall be the number of shares of Common
Stock then outstanding, and the Company and its Board of Directors shall, at
such time, take any and all such action needed to cause Merger Sub's designees
to be appointed to the Company's Board of Directors (including using its
reasonable best efforts to cause directors to resign). Subject to applicable
law, the Company shall take all action requested by Parent which is reasonably
necessary to effect any such election, including mailing to its stockholders an
information statement containing the information required by Section 14(f) of
the Exchange Act and Rule 14f-1 promulgated thereunder (the "Information
Statement"), and the Company agrees to make such mailing with the mailing of the
Schedule 14D-9 so long as Merger Sub shall have provided to the Company on a
timely basis all information required to be included in the Information
Statement with respect to Merger Sub's designees. Parent or Merger Sub will be
<PAGE>
9
solely responsible for any information with respect to either of them and their
nominees, officers, directors and affiliates required by Section 14(f) and Rule
14f-1. In furtherance thereof, the Company will increase the size of the
Company's Board of Directors (subject to the limitations set forth in the
Company Charter and By-Laws), or use its reasonable efforts to secure the
resignation of directors, or both, as is necessary to permit Merger Sub's
designees to be elected to the Company's Board of Directors. At the Effective
Time, the Company, if so requested, will use its reasonable efforts to cause
persons designated by Merger Sub to constitute the same percentage of each
committee of such board, each board of directors of each Subsidiary and each
committee of each such board (in each case to the extent of the Company's
ability to elect such persons and subject to any applicable stock exchange
regulations).
(b) Following the election or appointment of Merger Sub's designees
pursuant to this Section 2.3 and prior to the Effective Time, any amendment or
termination of this Agreement or the Company Charter or By-Laws, any termination
of this Agreement by the Company, any extension by the Company of the time for
the performance of any of the obligations or other acts of Parent and Merger Sub
or waiver of any of the Company's rights hereunder, and any other consent or
action by the Board of Directors hereunder, will require the concurrence of a
majority (which shall be at least two) of the directors of the Company then in
office who are directors on the date hereof and who voted to approve this
Agreement or are designated by a majority of the directors of the Company who
are directors on the date hereof and who voted to approve this Agreement.
ARTICLE III
The Merger
3.1. The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time, the Merger Sub shall be merged with and into the Company
in accordance with the provisions of Section 251 of the DGCL and with the effect
provided in Sections 259 and 261 of the DGCL. The separate corporate existence
of Merger Sub shall thereupon cease and the Company shall be the Surviving
Corporation and shall continue its corporate existence as a Subsidiary of Parent
and shall continue to be governed by the laws of the State of Delaware. The name
of the Surviving Corporation shall be "@Entertainment, Inc."
3.2. Effective Time. The Merger shall become effective on the date and
at the time (the "Effective Time") that the Certificate of Merger shall have
been accepted for filing by the Secretary of State of the State of Delaware (or
such later date and time as may be specified in the Certificate of Merger as
Parent, Merger Sub and the Company may agree), which shall be on the Closing
Date or as soon as practicable thereafter.
3.3. Closing. Subject to the fulfillment or waiver of the conditions
set forth in Article IX, the Closing shall take place at the offices of White &
Case LLP, 1155 Avenue of the Americas, New York, New York, at 10:00 a.m. on the
earliest practicable date (but no later than the fifth business day) following
the satisfaction or waiver of the conditions set forth in Article IX (other than
those conditions to be satisfied or waived at the Closing) or at such other
place and/or time and/or on such other date as Parent, Merger Sub and the
Company may agree.
ARTICLE IV
Terms of Merger
4.1. Certificate of Incorporation. The Certificate of Incorporation of
Merger Sub (amended to change the name of Merger Sub to "@Entertainment, Inc.")
in effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation, until duly amended in accordance
with the terms thereof and of the DGCL.
4.2. The By-Laws. The by-laws of Merger Sub immediately prior to the
Effective Time shall be the by-laws of the Surviving Corporation, until duly
amended in accordance with the terms thereof, of the Certificate of
Incorporation of the Surviving Corporation and of the DGCL.
4.3. Directors. The directors of Merger Sub immediately prior to the
Effective Time, shall be the directors of the Surviving Corporation until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and by-laws.
4.4. Officers. The officers of the Company immediately prior to the
Effective Time, be the officers of the Surviving Corporation until their
successors have been duly elected or appointed and qualified or until their
earlier death, resignation or removal in accordance with the Surviving
Corporation's Certificate of Incorporation and by-laws.
<PAGE>
10
ARTICLE V
Share Consideration; Conversion or
Cancellation of Shares in the Merger
5.1. Share Consideration; Conversion or Cancellation of Shares in the
Merger. Subject to the provisions of this Article V, at the Effective Time, by
virtue of the Merger and without any action on the part of Parent, Merger Sub,
the Company or the holders thereof, the shares, options and warrants of the
constituent corporations shall be converted or canceled as follows:
(a) Each share of Merger Sub Common Stock that is issued and
outstanding immediately prior to the Effective Time shall become one fully paid
and nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation.
(b) Each share of Common Stock then issued and outstanding (other than
(i) any shares of Common Stock which are held by any Subsidiary or in
the treasury of the Company, or which are held, directly or indirectly,
by Parent or any direct or indirect Subsidiary of Parent (including
Merger Sub), all of which shall be canceled and none of which shall
receive any payment with respect thereto and (ii) shares of Common
Stock held by Dissenting Stockholders) shall be canceled and converted
into and represent the right to receive an amount in cash, without
interest, equal to the Offer Price for each share of Common Stock
pursuant to the Offer (the "Merger Consideration").
(c) Each Company Preference Share shall be canceled and no further
consideration shall be payable in respect thereof.
5.2. Surrender of Certificates; Payment. The manner of making
payment for Shares in the Merger shall be as follows:
(a) (i) Prior to the Effective Time, Parent shall designate a
bank or trust company located in the United States reasonably
satisfactory to the Company to act as Paying Agent (the
"Paying Agent") for the holders of shares of Common Stock in
connection with the Merger and to receive the funds which
holders of shares of Common Stock will be entitled to receive
pursuant to Section 5.1(b). Promptly after the Effective Time,
the Paying Agent shall mail to each holder of record of a
certificate or certificates which immediately prior to the
Effective Time represented outstanding Common Stock (the
"Company Certificates") (other than those which are held by
any Subsidiary of the Company or in the treasury of the
Company or which are held directly or indirectly by Parent or
any direct or indirect Subsidiary of Parent (including Merger
Sub)) (1) a form of letter of transmittal (which shall specify
that delivery shall be effected, and risk of loss and title to
the Company Certificates shall pass, only upon proper delivery
of the Company Certificates to the Paying Agent) and (2)
instructions for use in effecting the surrender of the Company
Certificates for payment therefor. Upon surrender of Company
Certificates for cancellation to the Paying Agent, together
with such letter of transmittal duly executed and any other
required documents, the holder of such Company Certificates
shall be entitled to receive the Merger Consideration
deliverable in respect thereof and the Company Certificates
shall forthwith be cancelled. Until so surrendered, Company
Certificates shall represent solely the right to receive the
Merger Consideration payable in respect of the shares of
Common Stock represented thereby.
(ii) If the Merger Consideration is to be paid to or
issued in a name other than that in which the Company
Certificate surrendered in exchange therefor is
registered, it shall be a condition of such exchange
that the Company Certificate so surrendered shall be
properly endorsed and otherwise in proper form for
transfer and that the Person requesting such exchange
shall pay to the Paying Agent any transfer or other
taxes required by reason of the foregoing or shall
establish to the reasonable satisfaction of the
Paying Agent that such tax has been paid or is not
applicable.
(b) In the event that any Company Certificate has been lost, stolen
or destroyed, upon the making of an affidavit of that fact by the
Person claiming such Company Certificate to be lost, stolen or
destroyed and, if required by the Surviving Corporation, the posting by
such Person of a bond in such reasonable amount as Parent may direct as
indemnity against any claim that may be made against it with respect to
such Company Certificate, the Paying Agent will deliver to the Person
delivering such affidavit the Merger Consideration payable in respect
of the Common Shares represented by such lost, stolen or destroyed
Company Certificates.
<PAGE>
11
(c) Concurrently with or immediately prior to the Effective Time,
Parent shall, or shall cause Merger Sub to, shall deposit in trust with
the Paying Agent cash in United States dollars in an aggregate amount
equal to the product of (i) the number of shares of Common Stock
outstanding immediately prior to the Effective Time (other than shares
of Common Stock which are held by any Subsidiary or in the treasury of
the Company or which are held directly or indirectly by Parent or any
direct or indirect Subsidiary of Parent (including Merger Sub) or a
Person known at the time of such deposit to be a Dissenting
Stockholder) and (ii) the Merger Consideration (such amount being
hereinafter referred to as the "Payment Fund"). The Payment Fund shall
be invested by the Paying Agent as directed by Parent in direct
obligations of the United States, obligations for which the full faith
and credit of the United States is pledged to provide for the payment
of principal and interest, commercial paper rated of the highest
quality by Moody's Investors Services, Inc. or Standard & Poor's
Ratings Group or certificates of deposit, bank repurchase agreements or
bankers' acceptances of a commercial bank having at least $100,000,000
in assets (collectively "Permitted Investments") or in money market
funds which are invested in Permitted Investments, and any net earnings
with respect thereto shall be paid to Parent as and when requested by
Parent. The Paying Agent shall, pursuant to irrevocable instructions,
make the payments referred to in Section 5.1(b) hereof out of the
Payment Fund. The Payment Fund shall not be used for any other purpose
except as otherwise agreed to by Parent. Promptly following the date
which is six months after the Effective Time, the Paying Agent shall
return to the Surviving Corporation all cash, certificates and other
instruments in its possession that constitute any portion of the
Payment Fund (other than net earnings on the Payment Fund which shall
be paid to Parent), and the Paying Agent's duties shall terminate.
Thereafter, each holder of a Company Certificate may surrender such
Company Certificate to the Surviving Corporation and (subject to
applicable abandoned property, escheat and similar laws) receive in
exchange therefor the Merger Consideration, without interest, but shall
have no greater rights against the Surviving Corporation or Parent than
may be accorded to general creditors of the Surviving Corporation or
Parent under applicable law. Notwithstanding the foregoing, neither the
Paying Agent nor any party hereto shall be liable to a holder of shares
of Common Stock for any Merger Consideration delivered to a public
official pursuant to applicable abandoned property, escheat and similar
laws.
5.3. Transfer of Company Shares after the Effective Time. No transfers
of Common Stock shall be made on the stock transfer books of the Company after
the close of business on the day prior to the date of the Effective Time. No
transfer of shares of Common Stock shall be made on the stock transfer books of
the Surviving Corporation. Company Certificates presented to the Surviving
Corporation after the Effective Time shall be canceled and exchanged for cash as
provided in this Article V. At and after the Effective Time, each holder of a
Company Certificate shall cease to have any rights as a stockholder of the
Company, except for, in the case of a holder of a Company Certificate (other
than shares to be canceled pursuant to Section 5.1(b) hereof and other than
shares held by Dissenting Stockholders), the right to surrender his or her
Company Certificate in exchange for payment of the Merger Consideration or, in
the case of a Dissenting Stockholder, to perfect his or her right to receive
payment for his or her shares pursuant to Delaware law if such holder has
validly perfected and not withdrawn his or her right to receive payment for his
or her shares.
5.4 Dissenting Stock. Notwithstanding anything contained in this
Agreement to the contrary but only to the extent required by the DGCL, shares of
Common Stock that are issued and outstanding immediately prior to the Effective
Time and are held by holders of Common Stock who comply with all the provisions
of the law of the State of Delaware concerning the right of holders of Common
Stock to dissent from the Merger and require appraisal of their shares of Common
Stock (such holders, "Dissenting Stockholders") shall not be converted into the
right to receive the Merger Consideration but shall become the right to receive
such consideration as may be determined to be due such Dissenting Stockholder
pursuant to the law of the State of Delaware; provided, however, that (i) if any
Dissenting Stockholder shall subsequently deliver a written withdrawal of his or
her demand for appraisal (with the written approval of the Surviving
Corporation, if such withdrawal is not tendered within 60 days after the
Effective Time), or (ii) if any Dissenting Stockholder fails to establish and
perfect his or her entitlement to appraisal rights as provided by applicable
law, or (iii) if within 120 days of the Effective Time neither any Dissenting
Stockholder nor the Surviving Corporation has filed a petition demanding a
determination of the value of all shares of Common Stock outstanding at the
Effective Time and held by Dissenting Stockholders in accordance with applicable
law, then such Dissenting Stockholder or Dissenting Stockholders, as the case
may be, shall forfeit the right to appraisal of such shares and such shares
shall thereupon be deemed to have been converted into the right to receive, as
of the Effective Time, the applicable Merger Consideration, without interest, as
provided in Section 5.2, and such shares shall no longer be Dissenting Shares.
The Company shall give Parent and Merger Sub (x) prompt notice of any written
demands for appraisal, withdrawals of demands for appraisal and any other
related instruments received by the Company, and (y) the opportunity to direct
<PAGE>
12
all negotiations and proceedings with respect to demands for appraisal. The
Company shall not voluntarily make any payment with respect to any demands for
appraisal and shall not, except with the prior written consent of Parent, settle
or offer to settle any such demand.
5.5 Stock Option and Other Plans; Company Warrants. (a) To the
extent that Options and Company Warrants were not cancelled pursuant to Section
8.11, prior to the Effective Time, each of the Board of Directors of the Company
(or, if appropriate, any committee thereof) and the Company shall use its best
efforts to obtain the consent of all of the holders of Options heretofore
granted under any Stock Plans to provide for the cancellation, effective at the
Effective Time, of all the outstanding Options, as follows: Immediately prior to
the Effective Time, each Option, whether or not then vested or exercisable, and
each Company Warrant, whether or not then vested or exercisable, shall no longer
be exercisable for the purchase of shares of Common Stock but shall entitle each
holder thereof, in cancellation and settlement therefor, to payments in cash,
subject to any applicable withholding taxes, of the Cash Payment, at the
Effective Time, equal to the product of (x) the total number of shares of Common
Stock subject to such Option (or Company Warrant, as the case may be) as to
which such Option (or Company Warrant) could have been exercisable and (y) the
excess, if any, of the Merger Consideration over the exercise price per share of
Common Stock subject to such Option (or Company Warrant), each such Cash Payment
to be paid to each holder of an outstanding Option or Company Warrant, as the
case may be, at the Effective Time. The Company will ensure that any
then-outstanding stock appreciation rights or limited stock appreciation rights
shall be canceled as of immediately prior to the Effective Time without any
payment therefor. As provided herein, the Stock Plans and any other plan,
program or arrangement providing for the issuance or grant of any other interest
in respect of the capital stock of the Company or any Subsidiary (collectively
with the Stock Plans, referred to as the "Stock Incentive Plans") shall
terminate as of the Effective Time. The Company will ensure that neither the
Company nor any of its Subsidiaries is or will be bound by any Options, other
options, Company Warrants, other warrants, rights or agreements which would
entitle any Person, other than Parent or its Affiliates (including Merger Sub),
to own any capital stock of the Surviving Corporation or any of its Subsidiaries
or to receive any payment in respect thereof. The Company will ensure that after
the Effective Time, the only rights of the holders of Options to purchase shares
of Common Stock or Company Warrants in respect of such Options and Company
Warrants will be to receive the Cash Payment in cancellation and settlement
thereof.
(b) All Stock Plans shall terminate as of the Effective Time
and the provisions in any other Employee Plan providing for
the issuance, transfer or grant of any capital stock of the
Company or any interest in respect of any capital stock of the
Company shall be deleted as of the Effective Time, and the
Company shall use its reasonable best efforts to ensure that
following the Effective Time no holder of an option to
purchase Common Stock or any participant in any Stock Plan
shall have any right thereunder to acquire any capital stock
of the Company, Parent or the Surviving Corporation.
ARTICLE VI
Representations and Warranties of the Company
The Company hereby represents and warrants to Parent and
Merger Sub:
6.1. Organization, etc. of the Company. The Company is a corporation
duly organized, validly existing and, except as set forth in Schedule 6.1 to the
Company Disclosure Statement, in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, lease and
operate its properties and to carry on its business as now conducted and
proposed by the Company to be conducted. The Company is duly qualified and in
good standing in each other jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary and where the failure to be so qualified or in good
standing has or would reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect. The Company has made available to Parent
and Merger Sub complete and correct copies of the Company Charter and By-Laws
and the certificate of incorporations, by-laws or other similar organizational
documents of its Subsidiaries, in each case as amended to the date of this
Agreement. The respective certificates of incorporation and by-laws or other
similar organizational documents of the Subsidiaries do not contain any
provision limiting or otherwise restricting the ability of the Company to
control such Subsidiaries other than as required under Polish law.
6.2. Subsidiaries. Schedule 6.2 of the Company Disclosure Statement
contains a complete and accurate list of all of the Subsidiaries of the Company
as of the date hereof. Each Subsidiary of the Company is a corporation or other
legal entity duly organized, validly existing and (if applicable) in good
standing under the laws of the jurisdiction of its organization and has all
requisite corporate, partnership or similar power and authority to own its
properties and conduct its business and operations as currently conducted.
Except as set fourth in Schedule 6.2 of the Company Disclosure Statement, each
<PAGE>
13
Subsidiary of the Company is duly qualified and in good standing in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary, except where
the failure to be so qualified or in good standing does not and would not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect.
6.3. Agreement. The Company has all necessary corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby. This Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized and unanimously approved by the Board of Directors of the Company and
have been duly authorized by all other necessary corporate action on the part of
the Company, and no other corporate action on the part of the Company is
necessary to authorize the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated hereby
except for the approval of the Company's stockholders contemplated by Section
8.4. This Agreement has been duly executed and delivered by a duly authorized
officer of the Company and (assuming the due execution and delivery of this
Agreement by the other parties hereto) constitutes a valid and binding agreement
of the Company, enforceable against the Company in accordance with its terms,
except that such enforceability may be subject to bankruptcy, insolvency and
other similar laws effecting debtors' rights or creditors' rights generally and
except that the remedies of specific performance, injunction and other forms of
equitable relief may not be available. The Board of Directors of the Company has
approved the transactions contemplated by this Agreement, including the Merger,
so as to render the provisions of (x) Section 203 of the DGCL and (y) Article
VIII of the Company Charter, inapplicable to the transactions contemplated by
this Agreement and to Parent and Merger Sub in connection with this Agreement.
The Board of Directors of the Company has directed that this Agreement be
submitted to the stockholders of the Company for their approval. The affirmative
approval, by vote or written consent, of the holders of Company Common Stock
representing a majority of the votes that may be cast by such holders, and the
holders of each class of Company Preference Shares (voting as separate classes)
representing 66 2/3% of the votes that may be cast by the holders of each such
class of Company Preference Shares, are the only votes of the holders of any
class or series of capital stock of the Company necessary to approve and adopt
this Agreement and approve the Merger.
6.4. Permits; Compliance. Except as disclosed in Schedule 6.4 of the
Company Disclosure Statement, the Company and its Subsidiaries possess such
permits, licenses, approvals, concessions, consents and other authorizations
(including, without limitation, all permits required for the operation of the
business of the Company and its Subsidiaries by the Republic of Poland and the
United Kingdom) (collectively, "Governmental Licenses") issued by the
appropriate Governmental Body or self regulatory organizations necessary to
conduct the business now operated by them except where the failure to possess
such Governmental Licenses would not, singly or in the aggregate, reasonably be
expected to (i) have a Material Adverse Effect or (ii) prevent or materially
delay the consummation of the transactions contemplated by this Agreement; the
Company and its Subsidiaries, except as disclosed in Schedule 6.4 of the Company
Disclosure Statement and except where the failure to so comply would not, singly
or in the aggregate, reasonably be expected to (i) have a Material Adverse
Effect or (ii) prevent or materially delay the consummation of the transactions
contemplated by this Agreement, are in compliance with the terms and conditions
of all such Governmental Licenses; all of the Governmental Licenses are valid
and in full force and effect, except as disclosed in Schedule 6.4 to the Company
Disclosure Statement and except when the invalidity of such Governmental
Licenses or the failure of such Governmental Licenses to be in full force and
effect would not reasonably be expected to (i) have a Material Adverse Effect,
or (ii) prevent or materially delay the consummation of the transactions
contemplated by this Agreement; and except as disclosed in Schedule 6.4 to the
Company Disclosure Statement, neither the Company nor any of its Subsidiaries
has received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
reasonably be expected to (i) have a Material Adverse Effect or (ii) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement. To the knowledge of the Company, except as described in Schedule 6.4
of the Company Disclosure Statement, there exists no reason or cause that could
justify the variation, suspension, cancellation or termination of any such
Governmental Licenses held by the Company or any of its Subsidiaries with
respect to the construction or operation of their respective businesses, which
variation, suspension, cancellation or termination could reasonably be expected
to (i) have a Material Adverse Effect or (ii) prevent or materially delay the
consummation of the transactions contemplated by this Agreement.
6.5. Opinion of the Company's Financial Advisor. The Board of Directors
of the Company has received the written opinion, dated as of the date hereof, of
Goldman Sachs International to the effect that the Merger is fair to the
stockholders of the Company from a financial point of view, subject to the
assumptions and qualifications contain in such opinion, and a complete and
correct signed copy of such opinion has been, or promptly upon receipt thereof
will be, delivered to Parent.
<PAGE>
14
6.6. Capital Stock. (a) Each of the authorized, issued and outstanding
shares of capital stock of the Company as of the date hereof is as set forth in
Schedule 6.6 to the Company Disclosure Statement. The shares of issued and
outstanding capital stock of the Company have been duly authorized and validly
issued and are fully paid and non-assessable; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company. Except as disclosed in
Section 6.6 of the Company Disclosure Statement, (i) there are no shares of
capital stock of the Company authorized, issued or outstanding and (ii) there
are not as of the date hereof, and at the Effective Time there will not be, any
outstanding or authorized options, warrants, rights, subscriptions, claims of
any character, agreements, obligations, convertible or exchangeable securities,
or other commitments, contingent or otherwise, relating to Common Stock or any
other shares of capital stock of the Company, pursuant to which the Company is
or may become obligated to issue shares of Common Stock, any other shares of its
capital stock or any securities convertible into, exchangeable for, or
evidencing the right to subscribe for, any shares of the capital stock of the
Company. The Company has no authorized or outstanding bonds, debentures, notes
or other indebtedness the holders of which have the right to vote (or
convertible or exchangeable into or exercisable for securities having the right
to vote) with the stockholders of the Company or any of its Subsidiaries on any
matter ("Voting Debt"). After the Effective Time, the Surviving Corporation will
have no obligation to issue, transfer or sell any shares of Common Stock of the
Surviving Corporation pursuant to any Employee Plan.
(b) No class of capital stock of the Company is entitled
to pre-emptive rights.
(c) The outstanding Options and Company Warrants are as set
forth in Schedule 6.6 to the Company Disclosure Statement.
There are no Company Warrants or Options held in the treasury
of the Company.
(d) Except as disclosed in Schedule 6.6 of the Company
Disclosure Statement, all of the issued and outstanding
capital stock of each Subsidiary of the Company has been duly
authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, directly or
through its Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity
and none of the outstanding shares of capital stock of such
Subsidiaries was issued in violation of any preemptive or
similar rights arising by operation of law, or under the
statute or by-laws (or other similar organizational documents)
of any Subsidiary of the Company or under any agreement to
which the Company or any of its Subsidiaries is a party. No
shares of capital stock of any of the Subsidiaries are
reserved for issuance and there are no outstanding or
authorized options, warrants, rights, subscriptions, claims of
any character, agreements, obligations, convertible or
exchangeable securities, or other commitments, contingent or
otherwise, relating to the capital stock of any Subsidiary of
the Company, pursuant to which such Subsidiary is or may
become obligated to issue any shares of capital stock of such
Subsidiary or any securities convertible into, exchangeable
for, or evidencing the right to subscribe for, any shares of
such Subsidiary. Except as disclosed in Schedule 6.6 of the
Company Disclosure Statement and except as required by
applicable Law, there are no restrictions of any kind which
prevent the payment of dividends by any of the Subsidiaries of
the Company. Except as disclosed in Schedule 6.6 of the
Company Disclosure Statement, the Company does not own,
directly or indirectly, any capital stock or other equity
interest in any Person or have any direct or indirect equity
or ownership interest in any Person and neither the Company
nor any of its Subsidiaries is subject to any obligation or
requirement to provide funds for or to make any investment (in
the form of a loan, capital contribution or otherwise) to or
in any Person. The Company's Subsidiaries have no Voting Debt.
6.7. Litigation. Except as disclosed in the Company SEC Reports filed
prior to the date hereof or as set forth in Schedule 6.7 to the Company
Disclosure Statement, there are, as of the date hereof, no actions, proceedings,
suits, inquiries or investigations before or by any Governmental Body or any
arbitrator or any other alternative dispute resolution forum, now pending or, to
the knowledge of the Company, threatened against the Company or any of its
Subsidiaries, except actions, proceedings, suits, inquiries or investigations
which, individually or in the aggregate, would not reasonably be expected, if
adversely determined to (a) have a Material Adverse Effect or (b) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement. Except as disclosed in the Company SEC Reports filed prior to the
date hereof, neither the Company nor any of its subsidiaries is subject to any
judgment, order or decree entered in any lawsuit or proceeding which could
reasonably be expected to have a Material Adverse Effect.
<PAGE>
15
6.8. Compliance with Other Instruments, Etc.; No Conflict. Neither the
Company nor any Subsidiary of the Company is (1) in violation of its charter or
statute, as applicable, or by-laws (or other similar organizational documents),
(2) in violation or default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which or any of them may be bound, or to which any of the property or assets of
the Company or any of its subsidiaries is subject (collectively, "Agreements and
Instruments"), except, with respect to clause (2) only, for such violations or
defaults which, whether individually or in the aggregate, do not or would not
reasonably be expected to (i) have a Material Adverse Effect or (ii) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement. Assuming (i) the approval of the Company's stockholders as
contemplated by Section 8.4, (ii) the filings required under the Exchange Act
relating to the Offer, the Proxy Statement and the Merger, (iii) the filing of
the Certificate of Merger and other appropriate merger documents, if any, as
required by the DGCL, and (iv) the approval from the Governmental Bodies listed
on Schedule 6.8 of the Company Disclosure Statement, the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not (i) result in any violation of or conflict with, or
constitute a default under, the charter, bylaws or other organizational
documents of the Company (or any of its Subsidiaries) or (ii) result in any
violation of or conflict with or require any consent, waiver, or notice under
any Law. Except as set forth in Section 6.8 of the Company Disclosure Statement,
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not result in any violation of or
conflict with, constitute a default under, require any consent, filing, waiver
or notice under any term of, or result in the reduction or loss of any benefit
or the creation or acceleration of any right or obligation under, any agreement,
note, bond, mortgage, indenture, contract, lease, Governmental License or other
obligation or right (excluding options, restricted stock, employment contracts
and other employee related obligations or rights which are addressed in Section
6.9) to which the Company or any of its Subsidiaries is a party or by which any
of the assets or properties of the Company or any of its Subsidiaries is bound,
or any instrument or Law, or result in the creation of (or impose any obligation
on the Company or any of its Subsidiaries to create) any mortgage, lien, charge,
security interest or other encumbrance upon any of the properties or assets of
the Company or any of its Subsidiaries pursuant to any such term, except where
any of the foregoing, individually or in the aggregate, does not and would not
reasonably be expected to (i) have a Material Adverse Effect or (ii) prevent or
materially delay the consummation of the transactions contemplated by this
Agreement.
6.9. Employee Benefit Plans. (a) Schedule 6.9 of the Company Disclosure
Statement sets forth as of the date hereof a true and complete list of each
material "employee benefit plan" (as defined in Section 3(3) of ERISA) of the
Company and its Subsidiaries in which current or former employees, agents,
directors, or independent contractors of the Company or its Subsidiaries
("Employees") participate or pursuant to which the Company or any of its
Subsidiaries may have a liability with respect to Employees (each, an "Employee
Plan"). Except as disclosed on the Company Disclosure Statement, each Employee
Plan is exempt from coverage under ERISA pursuant to Section 4(b)(4) of ERISA,
and neither the Company nor any of its Subsidiaries has any commitment to
establish any additional Employee Plans or to modify or change materially any
existing Employee Plan. The Company has made available to Parent with respect to
each Employee Plan: (i) a true and complete copy of all written documents
comprising such Employee Plan (including amendments and individual agreements
relating thereto) or, if there is no such written document, an accurate and
complete description of such Employee Plan; and (ii) the most recent financial
statements and actuarial reports, if any.
(b) Each Employee Plan has been established and maintained in
accordance with its terms and in compliance with all
applicable local Laws, and all contributions required to be
made to the Employee Plans have been made in a timely fashion,
except where such failure to establish, maintain or comply, or
to make such contributions, individually or in the aggregate,
does not and would not reasonably be expected to have a
Material Adverse Effect on the Company.
(c) Except as set forth in Schedule 6.9 of the Company
Disclosure Statement, the Company has not at any time in the
past five years contributed to or been obligated to contribute
to a "multiemployer plan" (as defined in Section 3(37) of
ERISA) or a "multiple employer plan" described in Section
4063(a) of ERISA.
(d) Except as set forth in Section 5.5 and in Schedule 6.9 of
the Company Disclosure Statement, none of the execution or
delivery of this Agreement, stockholder approval of the Merger
by the stockholders of the Company at the Company
Stockholders' Meeting or otherwise, or the consummation of the
transactions contemplated hereby or thereby (either alone or
together with any additional or subsequent events),
constitutes an event under any Employee Plan, loan to, or
<PAGE>
16
individual agreement or contract with, an Employee that may
result in any material payment (whether of severance pay or
otherwise), restriction or limitation upon the assets of any
Employee Plan, acceleration of payment or vesting, increase in
benefits or compensation, or required funding, with respect to
any Employee, or the forgiveness of any loan or other
commitment of any Employees.
(e) There are no actions, suits, arbitrations, inquiries,
investigations or other proceedings (other than routine claims
for benefits) pending or, to the Company's knowledge,
threatened, with respect to any Employee Plan, except for any
of the foregoing that do not and would not reasonably be
expected to have, individually or in the aggregate, a Material
Adverse Effect.
(f) No material amounts paid or payable by the Company or any
Subsidiary of the Company to or with respect to any Employee
(including any such amounts that may be payable as a result of
the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby or
thereby) will fail to be deductible for United States federal
income tax purposes by reason of Section 280G of the Code.
(g) Except as set forth in Schedule 6.9 of the Company
Disclosure Statement, there are no agreements with, or pending
petitions for recognition of, a labor union or association as
the bargaining agent for any of the employees of the Company
or any of its Subsidiaries; no such petitions have been
pending at any time within two years of the date of this
Agreement and, to the knowledge of the Company, there has not
been any organizing effort by any union or other group seeking
to represent any employees of the Company or any of its
Subsidiaries as their bargaining agent at any time within two
years of the date of this Agreement. There are no labor
strikes, work stoppages or other labor troubles, other than
routine grievance matters, now pending, or, to the Company's
knowledge, threatened, against the Company or any of its
Subsidiaries which have or would reasonably be expected to
have, individually or in the aggregate, a Material Adverse
Effect and there have not been any such labor strikes, work
stoppages or other labor troubles, other than routine
grievance matters, with respect to the Company or any of its
Subsidiaries at any time within two years of the date of this
Agreement. Except as set forth on Schedule 6.9 of the Company
Disclosure Statement, the Company and its Subsidiaries are in
substantial compliance with all applicable Laws respecting
employment and employment practices, terms and conditions and
wages and hours.
6.10. Taxes. Except as set forth on Schedule 6.10 to the Company
Disclosure Statement:
(a) The Company and its Subsidiaries have timely filed or
caused to be timely filed all income Tax Returns and all
material other United States federal, state, county, local and
foreign Tax Returns required to be filed by or with respect to
them. Such Tax Returns have accurately reflected all liability
for Taxes of the Company and its Subsidiaries for the periods
covered thereby in all material respects. All Taxes shown to
be payable on such Tax Returns or on subsequent assessments
with respect thereto have been paid in full on a timely basis.
The amount of the liability of the Company and its
Subsidiaries for unpaid Taxes or all periods ending on or
before December 31, 1998, does not, in the aggregate, exceed
the amount of the current liability accrual for Taxes
(including reserves for deferred Taxes) reflected on the
Company's December 31, 1998 balance sheet.
(b) There are no material Tax assessments or adjustments that
have been asserted against the Company or its Subsidiaries
for any period.
(c) There are no audits, examinations, actions, suits,
proceedings, investigations, claims or assessments pending or
threatened to the knowledge of the officer of the Company and
each Subsidiary responsible for tax matters, against the
Company or any of its Subsidiaries for any alleged deficiency
in any Tax (a "Tax Controversy") and the Company has not been
notified in writing of any proposed material Tax Controversy
against the Company or any of its Subsidiaries (other than a
Tax Controversy set forth in Schedule 6.10 of the Company
Disclosure Statement which is being contested in good faith or
which is immaterial in amount). There are no material
"deferred intercompany transactions" or "intercompany
transactions" the gain or loss in which has not yet been taken
into account under the consolidated return Treasury
<PAGE>
17
Regulations currently or previously in effect. Neither the
Company nor any of its Subsidiaries have been included in any
"consolidated," "unitary" or "combined" Tax Return provided
for under the law of the United States, any foreign
jurisdiction or any state or locality with respect to Taxes
for any taxable period for which the statute of limitations
has not expired. The Company has delivered to Parent correct
and complete copies of all United States federal, state, and
foreign income Tax Returns (to the extent filed as of the date
hereof or, if not filed, correct and complete copies of
extensions thereof), examination reports, statements of
deficiencies assessed against or agreed to by the Company and
any of its Subsidiaries, or any other similar correspondence
from a taxing authority, relating to taxable years 1996 and
1997.
(d) There are no liens for Taxes on the assets of the Company
or any of its Subsidiaries, except for statutory liens for
current Taxes not yet due and payable.
(e) (i) Neither the Company nor any of its Subsidiaries (A)
has entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of
limitations relating to the payment or collection of Taxes of
the Company or any of its Subsidiaries.
(ii) All Taxes which the Company or any of its
Subsidiaries is (or was) required by law to withhold or
collect (other than immaterial amounts) have been duly
withheld or collected, and have been timely paid over to the
proper authorities to the extent due and payable.
(iii) No claim has ever been made by any taxing
authority in a jurisdiction where the Company or any of its
Subsidiaries does not file Tax Returns that the Company or any
of its Subsidiaries is or may be subject to taxation by that
jurisdiction.
(iv) There are no tax sharing, allocation,
indemnification or similar agreements (excluding customary Tax
gross-up clauses contained in financing agreements and
excluding commercial agreements entered into in the ordinary
course of business requiring payments to be made net of taxes)
in effect as between the Company or its Subsidiaries or any
predecessor or affiliate thereof and any other party under
which the Company, Parent or Merger Sub could be liable for
Taxes or other claims of any party.
(v) Neither the Company nor any of its Subsidiaries
has applied for, been granted, or agreed to any accounting
method change for which it will be required to take into
account any adjustment under Section 481 of the Code or any
similar provision of the Code or the corresponding tax laws of
any nation, state or locality.
(vi) No election under Section 341(f) of the Code has
been made or shall be made prior to the Effective Time to
treat the Company or any of its Subsidiaries as a consenting
corporation, as defined in Section 341 of the Code.
(vii) Neither the Company nor any of its Subsidiaries
is a party to any agreement that would require the Company or
any of its subsidiaries or any affiliate thereof to make any
payment that would constitute an "excess parachute payment"
for purposes of Sections 280G and 4999 of the Code.
(viii) Neither the Company nor any of its
Subsidiaries is a "United States real property holding
corporation" within the meaning of Section 897(c)(2) of the
Code.
(f) For purposes of this Agreement, the term "Tax" means any
United States federal, state, county or local, or foreign or
provincial income, gross receipts, profits, capital gains,
capital stock, occupation, severance, stamp, withholding,
property, sales, use, license, excise, franchise, employment,
payroll, value added, alternative or added minimum, ad valorem
or transfer tax, or any other tax, levy, custom, duty or
governmental fee or other like assessment or charge of any
kind whatsoever, together with any interest or penalty imposed
by any Governmental Body, and shall include any liability for
such amounts as a result either of being a member of a
combined, consolidated, unitary or affiliated group or of a
contractual obligation to indemnify any person or other
entity. The term "Tax Return" means a report, return or other
information (including any attached schedules or any
<PAGE>
18
amendments to such report, return or other information)
required to be supplied to or filed with any Governmental Body
with respect to any Tax, including an information return,
claim for refund, amended return or declaration or estimated
Tax.
6.11. Intellectual Property. Except as disclosed in Schedule 6.11 to
the Company Disclosure Statement, the Company and its Subsidiaries own or have a
valid and enforceable license to use the rights to all patents, trademarks,
tradenames, service marks and copyrights, together with any registrations and
applications therefor, licenses, inventions, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names or
other intellectual property (collectively, "Intellectual Property") used in and
necessary to carry on the business now operated by them; provided, however, that
the enforceability of such license may be subject to bankruptcy, insolvency and
other, similar laws effecting debtors' rights or creditors' rights generally and
except that the remedies of specific performance, injunction and other forms of
equitable relief may not be available. Except as disclosed on Schedule 6.11 of
the Company Disclosure Statement, the operation of the business of the Company
and its Subsidiaries as currently conducted requires no material rights of
performance or display or their equivalent or to the knowledge of the Company,
other rights, including, but not limited to, "moral rights" under copyrights
other than copyrights owned by the Company or its Subsidiaries or licensed by
any of them pursuant to license agreements. Except as disclosed in Schedule 6.11
to the Company Disclosure Statement, neither the Company nor any of its
Subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy, singly
or in the aggregate, would result in a Material Adverse Effect.
6.12. Reports and Financial Statements. (a) The Company and PCI have
filed all forms, reports and documents with the SEC required to be filed by them
since January 1, 1997 pursuant to the federal securities laws and the SEC rules
and regulations thereunder (collectively, the "Company SEC Reports"). None of
the Company SEC Reports, as of their respective dates, contained any untrue
statement of material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of the
consolidated balance sheets (including the related notes) included in the
Company SEC Reports presents fairly, in all material respects, the consolidated
financial position of the Company and its Subsidiaries as of the respective
dates thereof, and the other related statements (including the related notes)
included in the Company SEC Reports present fairly, in all material respects,
the results of operations and the changes in financial position of the Company
and its Subsidiaries for the respective periods or as of the respective dates
set forth therein, all in conformity with generally accepted accounting
principles consistently applied during the periods involved, except as otherwise
noted therein and subject, in the case of the unaudited interim financial
statements, to normal year-end adjustments. All of the Company SEC Reports, as
of their respective dates, complied as to form in all material respects with the
requirements of the Exchange Act, the Securities Act and the applicable rules
and regulations thereunder.
(b) Except (i) as and to the extent disclosed or reserved
against on the balance sheet of the Company as of December 31,
1998 included in the Company SEC Reports or (ii) as incurred
after the date thereof in the ordinary course of business
consistent with prior practice and not prohibited by this
Agreement and not involving borrowing by the Company or its
Subsidiaries, the Company does not have any liabilities or
obligations of any nature, absolute, accrued, contingent or
otherwise and whether due or to become due, that, individually
or in the aggregate, have or would reasonably be expected to
have a Material Adverse Effect on the Company.
6.13. Absence of Certain Changes or Events. During the period since
December 31, 1998, except as disclosed in the Company SEC Reports filed prior to
the date hereof:
(a) the business of the Company and its Subsidiaries has been
conducted only in the ordinary course, consistent with past
practice, except for the execution and delivery of this
Agreement and the consummation of the transactions
contemplated hereby, and except as otherwise expressly
permitted or required by this Agreement;
(b) neither the Company nor any of its Subsidiaries has taken
any action or omitted to take any action, or entered into any
contract, agreement, commitment or arrangement to take any
action or omit to take any action, which, if taken or omitted
after the date hereof, would violate Section 8.1; and
<PAGE>
19
(c) there has not been, and, to the best knowledge of the
Company, nothing has occurred that would reasonably be
expected to have, a Material Adverse Effect.
6.14. Affiliated Transactions, Registration Rights and Certain Other
Agreements. Set forth in Schedule 6.14 of the Company Disclosure Statement is an
accurate and complete listing, as of the date hereof, of (a) all contracts,
leases, agreements or understandings, whether written or oral, to which the
Company or any of its Subsidiaries is a party or is otherwise bound which
contain any restriction or limitation on the ability of the Company or any of
its Affiliates (other than the Stockholders and their non-Company Affiliates) to
engage in any business anywhere in the world, other than (i) any such contracts,
leases, agreements or understandings the loss or breach of which, individually
or in the aggregate, does not and would not reasonably be expected to have a
Material Adverse Effect, (ii) the financing documents set forth on Schedule 6.18
to the Company Disclosure Statement and (iii) geographical, functional and
temporal limitations in programming contracts and licenses and (b) all
contracts, leases, agreements or understandings, whether written or oral, giving
any Person the right to require the Company to register securities or any type
or to participate in any registration of securities of any type. The Company has
previously provided or made available to Parent true and complete copies of each
of the foregoing agreements. Except as disclosed in the Company SEC Reports,
there are no relationships or transactions of a type required to be disclosed in
the Company SEC Reports pursuant to Item 404 of Regulation S-K promulgated under
the Securities Act.
6.15. Brokers and Finders. Except for the fees and expenses payable to
Goldman Sachs International (whose fees and expenses will be paid by the
Company), which fees and expenses are reflected in its agreements with the
Company, copies of which have been furnished to Parent by the Company, no agent,
broker, Person or firm acting on behalf of the Company is, or will be, entitled
to any fee, commission or broker's or finder's fees from any of the parties
hereto, or from any Person controlling, controlled by, or under common control
with any of the parties hereto, in connection with this Agreement or any of the
transactions contemplated hereby.
6.16. Proxy Statement, Schedule l4D-9 and Schedule l4D-1. The
definitive proxy statement and related materials, if required, to be furnished
to the holders of Common Stock in connection with the Merger pursuant to Section
8.3 hereof (the "Proxy Statement") and the Information Statement will comply in
all material respects with the Exchange Act and the rules and regulations
thereunder and any other applicable laws. If at any time prior to the Company
Stockholders' Meeting any event occurs which should be described in an amendment
or supplement to the Proxy Statement, the Company will file and disseminate, as
required, an amendment or supplement which complies in all material respects
with the Exchange Act and the rules and regulations thereunder and any other
applicable laws. Prior to its filing with the SEC, the amendment or supplement
shall be delivered to Parent and Merger Sub and their counsel. None of the
information supplied by the Company for inclusion or incorporation by reference
in (i) the documents pursuant to which the Offer will be made, including the
Offer Documents, or (ii) the Proxy Statement, will, in the case of the Offer
Documents, at the respective times the Offer Documents are filed with the SEC,
or in the case of the Proxy Statement at the date such information is supplied
and at the Effective Time, contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made,
in light of the circumstance under which they are made, not misleading. None of
the information supplied by the Company in the Schedule 14D-9, at the respective
times the Schedule 14D-9 is filed with the SEC, will contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements made, in light of the circumstances under which they are made,
not misleading. Notwithstanding the foregoing, no representation or warranty is
made with respect to any information with respect to Parent, Merger Sub or their
officers, directors or affiliates provided to the Company by Parent or Merger
Sub expressly in writing for inclusion or incorporation by reference in the
Schedule 14D-9, the Proxy Statement or the Information Statement. The Schedule
14D-9 will comply in all material respects with the Exchange Act and the rules
and regulations thereunder and any other applicable laws. If at any time prior
to the expiration or termination of the Offer any event occurs which should be
described in an amendment or supplement to the Schedule l4D-9 or any amendment
or supplement thereto, the Company will file and disseminate, as required, an
amendment or supplement which complies in all material respects with the
Exchange Act and the rules and regulations thereunder and any other applicable
laws. Prior to its filing with the SEC, the amendment or supplement shall be
delivered to Parent and Merger Sub and their counsel.
6.17. Title to Assets. Except as reflected in the Company's financial
statements as of December 31, 1998 or disclosed in Schedule 6.17 of the Company
Disclosure Statement, the Company and each of its Subsidiaries has good and
marketable title to (or in the case of leases or other contracts, the full and
unencumbered right to exercise its rights under such leases or other agreements)
the properties and assets used by it, free and clear of all mortgages, deeds of
trust, liens, security interests, pledges, encumbrances, encroachments,
easements, leases, agreements, covenants, charges, restrictions, option, joint
ownership or adverse claims or rights whatsoever (collectively, "Liens"), except
for Permitted Liens, and except for properties and assets disposed of in the
ordinary course of business since December 31, 1998. "Permitted Liens" means:
<PAGE>
20
(i) rights of lessors or lessee under the terms of leases (x) which have been
disclosed to Parent in this Agreement or Schedule 6.17 of the Company Disclosure
Statement or (y) for office equipment entered into in the ordinary course of
business;
(ii) Liens for Taxes not yet due or payable; (iii) Liens reflected in
the Company SEC Reports; (iv) Liens imposed by applicable law and incurred in
the ordinary course of business for obligations not yet due and payable to
laborers, materialmen and the like; (v) zoning and other restrictions,
variances, covenants, rights-of-way, encumbrances, easements and or other minor
irregularities of title, none of which, individually or in the aggregate, would
reasonably be expected to have a material adverse effect on the value of any of
the real property of the Company, or would impair in any material respect the
ability of the Company or the relevant Subsidiary of the Company to sell such
property for its current use, (vi) with respect to items of personal property,
unperfected purchase money security interests existing in the ordinary course of
business without the execution of a security agreement and (vii) Liens which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
6.18. Contracts. Schedule 6.18 of the Company Disclosure Statement sets
forth the following oral or written contracts and other agreements to which the
Company or any of its Subsidiaries is a party:
(a) any agreement (or group of related agreements, with the
same third party or any of its Affiliates) for the lease of
personal property providing for lease payments in excess of
One Hundred Thousand Dollars ($100,000) per annum;
(b) any agreement (or group of related agreements for the
purchase or sale of supplies, products or other personal
property, or for the furnishing or receipt of services, the
performance of which involve consideration in excess of One
Hundred Thousand Dollars ($100,000) per annum; provided,
however, that this clause (b) shall not include any employment
agreement included pursuant to clause (e) below or excluded
from clause (e) below by virtue of the monetary threshold set
forth therein;
(c) any agreement concerning a partnership or joint venture;
(d) any agreement (or group of related agreements, with the
same third party or any of its Affiliates) under which the
Company or any of its Subsidiaries has created, incurred,
assumed, or guaranteed any indebtedness for borrowed money, or
any capitalized lease obligation, in excess of One Hundred
Thousand Dollars ($100,000) per annum or under which it has
imposed a lien on any of its material assets, tangible or
intangible;
(e) any agreement with an employee of the Company or any of
its Subsidiaries, providing for a base salary per annum in
excess of One Hundred Thousand Pounds Sterling
((pound)100,000);
(f) any other agreement (or group of related agreements with
the same third party) the performance of which involves
consideration in excess of One Hundred Thousand Dollars
($100,000) per annum; provided however, that this clause (f)
shall not include any employment agreement excluded from
clause (e) above by virtue of the monetary threshold set forth
therein.
The foregoing are referred to hereafter as the "Material
Contracts". With respect to the Material Contracts, except as set forth
in Schedule 6.18 of the Company Disclosure Statement: (i) all are in
full force and effect against the Company or any of its Subsidiaries in
accordance with their terms, except that such enforceability may be
subject to bankruptcy, insolvency and other similar laws effecting
debtors' rights or creditors' rights generally and except that the
remedies of specific performance, injunction and other forms of
equitable relief may not be available; (ii) neither the Company nor any
of its Subsidiaries and to the Company's knowledge no other party
thereto is, in breach or default, and no event has occurred which with
notice or lapse of time would constitute a breach or default, or permit
termination, modification, or acceleration, under the agreement; (iii)
neither the Company nor any of its Subsidiaries has assigned any of its
rights or obligations under any of the Material Contracts; (iv) neither
the Company nor any of its Subsidiaries has received any outstanding
notice of cancellation or termination in connection with any of them;
and (v) neither the Company nor any of its Subsidiaries is, and to the
Company's knowledge no party thereto is the subject of bankruptcy
proceedings, nor has had a trustee appointed on its behalf or is
insolvent. The Company has delivered to the Parent and Merger Sub a
correct and complete copy of each written Material Contract (as amended
to the date of this Agreement), except for the Coop Agreements and
Conduit Agreements listed on Schedule 6.11 of the Company Disclosure
Statement, and a written summary setting forth the terms and conditions
of each oral agreement constituting a Material Contract referred to in
Schedule 6.18 of the Company Disclosure Statement.
<PAGE>
21
6.19. Compliance. Except as set forth in Schedule 6.19 of the Company
Disclosure Statement, neither the Company or any of its Subsidiaries is in
conflict with, or in default or violation of any law, rule, regulation, order
judgment or decree applicable to the Company or any of its Subsidiaries or by
which any property or asset of the Company or any of its Subsidiaries is bound
or affected, except for such conflicts, defaults or violations that would not
reasonably be expected to, individually or in the aggregate, have a Material
Adverse Affect or would not be reasonably likely to prevent or materially delay
consummation of the transactions contemplated by this Agreement.
6.20. Insurance. The Company and its Subsidiaries have obtained and
maintained in full force and effect insurance (including director's and
officer's insurance) with insurance companies or associations in such amounts,
on such terms and covering such risks as disclosed in Schedule 6.20 of the
Company Disclosure Statement.
6.21. Company Preference Shares. Except as set forth in Section 6.21 of
the Company Disclosure Statement, neither the holders of the Company's 12%
Series A Preference Shares nor the holders of the Company's 12% Series B
Preference Shares are entitled to (i) receive any accrued dividends which have
not been paid when due or (ii) elect members to the Company's Board of Directors
in accordance with the terms of their respective Certificate of Designation.
6.22. Year 2000. All internal computer systems, computer software or
technology that are material to the business, finances or operations of the
Company and its Subsidiaries or were sold or licensed to customers of the
Company and its Subsidiaries (collectively, "Material Systems") are (i) able to
receive, record, store, process, calculate, manipulate and output dates from and
after September 4, 1999, time periods that include any Relevant Date and
information that is dependent on or relates to such dates or time periods, in
the same manner and with the same accuracy, functionality, data integrity and
performance as when dates or time periods prior to September 4,1999, are
involved and (ii) able to store and output date information in a manner that is
unambiguous as to century (the circumstances set forth in clauses (i) and (ii),
collectively, "Year 2000 Compliant"). All Material Systems that are not Year
2000 Compliant as of the date of this Agreement are set forth on Schedule 6.22
of the Company Disclosure Statement.
ARTICLE VII
Representations and Warranties of Parent and Merger Sub
Parent and Merger Sub each, jointly and severally, represents and
warrants to the Company that:
7.1. Organization, etc. of Parent. Parent is a corporation duly
organized, validly existing and in good standing under the laws of the Kingdom
of the Netherlands.
7.2. Subsidiaries. Merger Sub is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware and is a
Wholly Owned Subsidiary of Parent.
7.3. Agreement. Each of Parent and Merger Sub has all necessary
corporate power and authority to execute and deliver this Agreement and the
Stockholder Agreements, to perform its obligations hereunder and to consummate
the transactions contemplated hereby and thereby. This Agreement and the
Stockholders Agreements and the consummation of the transactions contemplated
hereby and thereby have been approved by the Executive Board of Parent and Board
of Directors of Merger Sub and by Parent as the sole stockholder of Merger Sub,
and have been duly authorized by all other necessary corporate action on the
part of Parent or Merger Sub. This Agreement and the Stockholders Agreements
have been duly executed and delivered by a duly authorized officer of each of
Parent and of Merger Sub and (assuming the due execution and delivery of this
Agreement by the other parties thereto) constitutes a valid and binding
agreement of Parent and Merger Sub, enforceable against Parent and Merger Sub in
accordance with its terms, except as such enforceability may be subject to
bankruptcy, insolvency, and other similar laws affecting debtors' rights or the
rights and remedies of creditors generally, and except that the remedies of
specific performance injunction and other forms of equitable of relief may not
be available.
7.4. Compliance with Other Instruments, Etc.; No Conflict. Assuming (i)
the filings required under the Exchange Act relating to the Proxy Statement and
the Merger, (ii) the filing of the Certificate of Merger and other appropriate
merger documents, if any, as required by the DGCL, and (iii) the approval of the
Government Bodies listed on Schedule 7.4 of the Parent Disclosure Statement, the
execution, delivery and performance of this Agreement and the Stockholders
Agreements and the consummation of the transactions contemplated hereby and
thereby will not (A) result in any violation of or conflict with, or constitute
a default under, the charter, bylaws or other organizational documents of Parent
(or any of its Subsidiaries) or (B) result in any violation of or conflict with
or require any consent, waiver, or notice under any Law. Except as set forth in
Section 7.4 of the Parent Disclosure Statement, the execution, delivery and
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22
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in any violation of or conflict with,
constitute a default under, require any consent, waiver or notice under any term
of, or result in the reduction or loss of any benefit or the creation or
acceleration of any obligation under, any agreement, note, bond, mortgage,
indenture, contract, lease, Permit or other obligation or any instrument to
which Parent or Merger Sub is a party or by which any of the assets or
properties of Parent or Merger Sub is bound or any instrument, except where any
of the foregoing, individually or in the aggregate, does not and would not
prevent or materially delay the consummation of the transactions contemplated
hereby.
7.5. Brokers and Finders. Except for the fees and expenses payable to
Morgan Stanley & Co., Limited, which fees and expenses will be paid by Parent,
no agent, broker, Person or firm acting on behalf of Parent or Merger Sub is, or
will be, entitled to any fee, commission or broker's or finder's fees from any
of the parties hereto, or from any Person controlling, controlled by, or under
common control with any of the parties hereto, in connection with this Agreement
or any of the transactions contemplated hereby.
7.6 Offer Documents, Schedule 14D-9 and Proxy Statement. The Offer
Documents will comply in all material respects with the Exchange Act and the
rules and regulations thereunder and any other applicable laws. If at any time
prior to the expiration or termination of the Offer any event occurs which
should be described in an amendment or supplement to the Schedule 14D-1 or any
amendment or supplement thereto, Merger Sub will, and Parent will cause Merger
Sub to, file and disseminate, as required, an amendment or supplement which
complies in all material respects with the Exchange Act and the rules and
regulations thereunder and any other applicable laws. Prior to its filing with
the SEC, the amendment or supplement shall be delivered to the Company and its
counsel. The information supplied or to be supplied by Parent and Merger Sub for
inclusion or incorporation by reference in the Proxy Statement, the Schedule
14D-9 and the Information Statement of the Company, at the time such documents
are supplied to the stockholders of the Company, and with respect to the Proxy
Statement and the Information Statement, at the time of the Company Stockholders
Meeting and at the Effective Time, will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements made, in light of the circumstances
under which they are made, not misleading. Notwithstanding the foregoing, no
representation or warranty is made with respect to any information with respect
to the Company or its officers, directors and affiliates provided to Parent or
Merger Sub by the Company expressly in writing for inclusion or incorporation by
reference in the Offer Documents or amendments or supplements thereto.
ARTICLE VIII
Additional Covenants and Agreements
8.1. Conduct of Business of the Company. Except as set forth in
Schedule 8.1 of the Company Disclosure Statement, as expressly permitted by this
Agreement (including any transaction permitted by Schedule 8.1 of the Company
Disclosure Statement), as required by any change in applicable Law, or as
otherwise agreed by Parent in writing (which agreement shall not be unreasonably
withheld), during the period from the date of this Agreement to the Effective
Time, (i) the Company will, and will cause each of its Subsidiaries to, conduct
the Company's business in the ordinary course of business consistent with past
practice, and (ii) to the extent consistent with the foregoing, the Company
will, and will cause each of its Subsidiaries to, use their reasonable best
efforts to preserve intact its current business organizations, keep available
the service of its current officers and employees, and preserve its
relationships with customers, suppliers and others having business dealings with
it (but without the obligation to pay any additional compensation to any such
officers, employees, customers, suppliers and other persons), in each case with
respect to the Company's current business, with the objective that the goodwill
and ongoing businesses of the Company shall be materially unimpaired at the
Effective Time. Without limiting the generality of the foregoing, from and
including the date hereof to the Effective Time, the Company will not, and will
not permit any of its Subsidiaries to, without the prior written consent of
Parent (except to the extent set forth in Schedule 8.1 of the Company Disclosure
Statement):
(a) except for (i) Company Common Stock issued upon exercise
of options or other rights outstanding as of the date hereof
under Employee Plans in accordance with the terms thereof and
(ii) securities issued in connection with the conversion of
convertible or exchangeable securities of the Company or its
Subsidiaries outstanding as of the date hereof in accordance
with the terms of such securities, issue, deliver, sell,
dispose of, pledge or otherwise encumber, or authorize or
propose the issuance, sale, disposition or pledge or other
encumbrance (in each instance, whether through the issuance or
granting of options, warrants, commitments, subscriptions,
rights to purchase or otherwise) of (A) any additional shares
of its capital stock of any class, or any Voting Debt or any
securities or rights convertible into, exchangeable for, or
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23
evidencing the right to subscribe for any shares of its
capital stock or Voting Debt or any rights, warrants, options,
calls, commitments or any other agreements of any character to
purchase or acquire any shares of its capital stock or Voting
Debt or any securities or rights convertible into,
exchangeable for, or evidencing the right to subscribe for,
any shares of its capital stock, or (B) any other securities
in respect of, in lieu of, or in substitution for, Company
Common Stock outstanding on the date hereof;
(b) redeem, purchase or otherwise acquire, or propose to
redeem, purchase or otherwise acquire, any of its outstanding
securities, other than pursuant to existing agreements
requiring the Company to repurchase or acquire any shares of
its capital stock (provided that such repurchase or
acquisition is in accordance with the terms of such agreement
as in effect on the date hereof);
(c) split, combine, subdivide or reclassify any shares of its
capital stock or declare, set aside for payment or pay any
dividend, or make any other actual, constructive or deemed
distribution in respect of any shares of its capital stock or
otherwise make any payments to stockholders in their capacity
as such (other than dividends or distributions paid by any
Wholly Owned Subsidiary of the Company to the Company or
another Wholly Owned Subsidiary of the Company);
(d) (i) grant any increases in the compensation of any of its
directors, officers or employees, except for increases granted
to employees other than officers in the ordinary course of
business consistent with past practice, (ii) pay or award or
agree to pay or award any pension, retirement allowance, or
other non-equity incentive awards, or other employee benefit,
not required by any of the Employee Plans to any current or
former director, officer or employees, whether past or
present, or to any other Person, except for payments or awards
to current employees other than officers that are in the
ordinary course of business, consistent with past practice,
(iii) pay or award or agree to pay or award any stock option
or equity incentive awards, (iv) except as provided for in the
business plan previously dated April 29, 1999 provided by the
Company to Parent and Merger Sub (the "Business Plan"), enter
into any new or amend any existing employment agreement with
any director, officer or employee except for employment
agreements with new employees entered into in the ordinary
course of business consistent with past practice and except
for amendments in the ordinary course of business, consistent
with past practice, that do not materially increase benefits
or payments, (v) enter into any new or amend any existing
severance agreement with any current or former director,
officer or employee, except for agreements or amendments in
the ordinary course of business, consistent with past
practice, that do not provide for material benefits, or (vi)
become obligated under any new Employee Plan which was not in
existence on the date hereof, or amend any such Employee Plan
in existence on the date hereof, except for any such amendment
in the ordinary course of business, consistent with past
practice, that does not provide for material additional
benefits;
(e) adopt a plan of complete or partial liquidation,
dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any
Subsidiary of the Company not constituting an inactive
Subsidiary (other than the Merger and other than any such
merger, consolidation, restructuring, recapitalization or
other reorganization that is used to effect an acquisition
permitted pursuant to Section 8.1(f) and which does not result
in a change of control of the Company or change the Company's
Common Stock into a different number or kind of securities);
(f) make any acquisition, by means of stock or asset purchase,
recapitalization, merger, consolidation or otherwise, of (i)
any direct or indirect ownership interest in or assets
comprising any business enterprise or operation or (ii) except
in the ordinary course and consistent with past practice, any
other assets; provided further that such acquisitions do not
and would not prevent or materially delay the consummation of
the Merger; and provided further that the foregoing shall not
prevent the Company from exploring on a preliminary basis and
conducting diligence investigations (including having
discussions with any potential acquisition target) with
respect to any potential acquisition that would require
<PAGE>
24
Parent's consent hereunder, for the purpose of determining the
desirability of such potential acquisition and developing the
basis on which to seek Parent's consent, so long as the
Company does not submit any formal proposal or indication of
interest with respect to such an acquisition to such
acquisition target, or make any binding commitments with
respect to such potential acquisition, without obtaining
Parent's consent;
(g) (i) dispose of any interest in any material business
enterprise or operation of the Company, (ii) make any other
disposition of any other direct or indirect ownership interest
in any material assets of the Company (except for the
replacement or upgrade of assets, or disposition of
unnecessary assets, in the ordinary course and consistent with
past practice), or (iii) except in the ordinary course and
consistent with past practice, dispose of any other assets of
the Company;
(h) adopt any amendments to the Company Charter or the
by-laws or alter through merger, liquidation, reorganization,
restructuring or in any other fashion the corporate structure
or ownership of any Subsidiary of the Company; (i) incur any
indebtedness for borrowed money or guarantee any indebtedness
of any other Person or make any loans, advances or capital
contributions to, or investments in, any other Person (other
than to the Company or any Wholly Owned Subsidiary of the
Company);
(j) except as provided for in the Business Plan,
engage in the conduct of any business other than the
Company's existing businesses;
(k) enter into any agreement or exercise any discretion
providing for acceleration of payment or performance as a
result of a change of control of the Company or its
Subsidiaries, except in connection with the Offer and the
Merger; provided that this paragraph (k) shall not restrict
the Company's right to respond or take action in response to
any such acceleration so long as such action is permitted
under this Section 8.1;
(l) enter into any contracts, arrangements or understandings
requiring in the aggregate the purchase of equipment,
materials, supplies or services in excess of $2 million
individually or $20 million in the aggregate other than any
such contracts, arrangements or understandings providing for
capital spending of the Company or its Subsidiaries in
accordance with the Business Plan;
(m) enter into or amend, modify, terminate or waive any right
under any agreement with any Affiliates of the Company (other
than its Subsidiaries), other than any of the foregoing as may
be done in the ordinary course of business and that (x) would
not reasonably be expected, individually or in the aggregate,
to have a Material Adverse Effect or (y) would not be
reasonably likely to prevent or materially delay consummation
of the transactions contemplated by this Agreement;
(n) settle or compromise any material litigation or material
Tax Controversy with respect to the Company or its
Subsidiaries or waive, release or assign any material rights
or claims with respect to the Company or its Subsidiaries,
except in the ordinary course of business consistent with past
practice;
(o) effect any material change in any of its methods of
accounting, except as may be required by law or generally
accepted accounting principles;
(p) take any action, engage in any transaction or enter into
any agreement which would cause any of the representations or
warranties set forth in Article VI hereof that are subject to,
or qualified by, a "Material Adverse Effect", "material
adverse change" or other materiality qualification to be
untrue as of the Closing Date, or any such representations and
warranties that are not so qualified to be untrue in any
respect which would have a Material Adverse Effect;
(q) take any action, including without limitation, the
adoption of any shareholder rights plan or amendments to the
Certificate of Incorporation, which would, directly or
indirectly, restrict or impair the ability of Parent to vote,
or otherwise to exercise the rights and receive the benefits
of a shareholder with respect to, securities of the Company
that may be acquired or controlled by Parent or Merger Sub or
permit any shareholder to acquire securities of the Company on
a basis not available to Parent in the event that Parent were
to acquire securities of the Company;
<PAGE>
25
(r) authorize, recommend or propose (other than to Parent),
or announce an intention to do any of the foregoing, or enter
into any contract, agreement, commitment or arrangement to do
any of the foregoing.
8.2. No Solicitation of Other Offers. (a) The Company and its
Affiliates and each of their respective officers, directors, employees,
representatives, consultants, investment bankers, attorneys, accountants and
other agents shall immediately cease any discussions or negotiations with any
other parties that may be ongoing with respect to any Acquisition Proposal (as
defined below). Neither the Company nor any of its Affiliates shall, directly or
indirectly, take (and the Company shall not authorise or permit its or its
Affiliates, officers, directors, employees, representatives, consultants,
investment bankers, attorneys, accountants or other agents or Affiliates, to so
take) any action to (i) encourage, solicit, initiate or facilitate the making of
any Acquisition Proposal (including, without limitation, by taking any action
that would make the Article VIII of the Company Charter or Section 203 of the
Delaware General Corporation Law inapplicable to an Acquisition Proposal), (ii)
enter into any agreement with respect to any Acquisition Proposal or enter into
any arrangement, understanding or agreement requiring it to abandon, terminate
or fail to consummate the Merger or any other transactions contemplated by this
Agreement or (iii) participate in any way in discussions or negotiations with,
or, furnish or disclose any information to, any Person (other than Parent or
Merger Sub) in connection with, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or may reasonably be
expected to lead to, any Acquisition Proposal; provided, however, that the
Company, in response to an unsolicited Acquisition Proposal and in compliance
with its obligations under Section 8.2(b) hereof, may participate in discussions
or negotiations with or furnish information (pursuant to a confidentiality
agreement with terms not more favourable to such third party than the terms of
the Confidentiality Agreement) to any third party which makes an Acquisition
Proposal if (i) the Board of Directors reasonably determines (based upon the
advice of an independent, nationally recognized financial advisor) that such
Acquisition Proposal will lead to a Superior Proposal (as defined below) and
(ii) the Board of Directors believes (and has been so advised in writing by
independent outside nationally recognized legal counsel) that failing to take
such action would constitute a breach of its fiduciary duties. In addition,
neither the Board of Directors of the Company nor any Committee thereof shall
(A) withdraw or modify, or propose to withdraw or modify, in a manner adverse to
Parent or Merger Sub the approval and recommendation of the Offer and this
Agreement or (B) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal; provided that the Company may recommend to its
stockholders an Acquisition Proposal and in connection therewith withdraw or
modify its approval or recommendation of the Offer or the Merger if (1) a third
party makes a Superior Proposal, and (2) (a) five (5) business days have elapsed
following delivery to Parent of a written notice of the determination by the
Board of Directors of the Company to take such action and during such five (5)
business day period the Company has fully co-operated with Parent including,
without limitation, informing Parent of the terms and conditions of such
Superior Proposal, and the identity of the Person making such Superior Proposal,
with the intent of enabling both parties to agree to a modification of the terms
and conditions of this Agreement, and (b) at the end of such five (5) business
day period the Acquisition Proposal continues to constitute a Superior Proposal.
"Acquisition Proposal" shall mean (i) any inquiry, proposal or
offer from any Person relating to any direct or indirect acquisition or purchase
of a substantial amount of assets of the Company or any of its Subsidiaries or
of over 10% of any class of equity securities of the Company or any of its
Subsidiaries, (ii) any tender offer or exchange offer that, if consummated,
would result in any Person beneficially owning 10% or more of any class of
equity securities of the Company or any of its Subsidiaries, (iii) any merger,
consolidation, business combination, sale of substantially all the assets,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its Subsidiaries, or (iv) any other transaction the
consummation of which could reasonably be expected to impede, interfere with,
prevent or materially delay the Offer or the Merger or which could reasonably be
expected to dilute materially the benefits to Parent of the transactions
contemplated hereby.
"Superior Proposal" shall mean a bona fide proposal made by a
third party to acquire all of the Shares pursuant to a tender offer, a merger or
a sale of all of the assets of the Company (w) on terms which a majority of the
members of the Board of Directors of the Company determines in its good faith
reasonable judgment (based on the advice of an independent outside nationally
recognized financial advisor (relating to financial matters) and independent
outside nationally recognized legal advisors (relating to legal matters)) to be
more favorable to the Company and its stockholders than the transactions
contemplated hereby, (x) for which financing is then available (it being
understood that financing evidenced by highly confident letters and similar
letters shall not be considered "available" for purposes of this Section), (y)
which is not subject to any financing or due diligence condition and (z) which
an independent nationally recognized financial advisor has advised the Board of
Directors is more favorable to the Company's stockholders from a financial point
of view than the transactions contemplated hereby, as proposed to be modified by
Parent in accordance with the proviso to the last sentence of the first
paragraph of this Section 8.2 (a).
<PAGE>
26
(b) From and after the date hereof, in addition to the obligations of
the Company set forth in paragraph (a), on the date of receipt thereof, the
Company shall advise Parent of any request for information or of any Acquisition
Proposal, or any inquiry, proposal, discussions or negotiation with respect to
any Acquisition Proposal, the terms and conditions of such request, Acquisition
Proposal, inquiry, proposal, discussion or negotiation and the Company shall
promptly provide to Parent copies of any written materials received by the
Company in connection with any of the foregoing, and the identity of the Person
making any such Acquisition Proposal or such request, inquiry or proposal or
with whom any discussion or negotiation are taking place. The Company shall keep
Parent fully informed of the status and details (including amendments or
proposed amendments) of any such request or Acquisition Proposal and keep Parent
fully informed as to the details of any information requested of or provided by
the Company and as to the details of all discussions or negotiations with
respect to any such request, takeover proposal or inquiry. The Company shall
promptly provide to Parent any non-public information concerning the Company
provided to any other Person in connection with any Acquisition Proposal which
was not previously provided to Parent.
(c) Immediately following the execution of this Agreement, the Company
shall request each Person which has heretofore executed a confidentiality
agreement in connection with its consideration of acquiring the Company or any
portion thereof to return all confidential information heretofore furnished to
such Person by or on behalf of the Company.
8.3. Proxy Statement. If stockholder approval of the Merger is required
by law or by the Company Charter or By-Laws, as promptly as practicable,
following Parent's request, the Company will prepare and file a preliminary
Proxy Statement with the SEC and will use its reasonable best efforts to respond
to the comments of the SEC, if any, in connection therewith and to furnish all
information regarding the Company required in the definitive Proxy Statement
(including, without limitation, financial statements and supporting schedules
and certificates and reports of independent public accountants). Parent, Merger
Sub and Company will cooperate with each other in the preparation of the Proxy
Statement. Without limiting the generality of the foregoing, each of Parent and
Merger Sub will furnish to the Company the information relating to it required
by the Exchange Act to be set forth in the Proxy Statement. Promptly after the
expiration or termination of the Offer, if required by the DGCL in order to
consummate the Merger, the Company will cause the definitive Proxy Statement to
be mailed to the stockholders of the Company and, if necessary, after the
definitive Proxy Statement shall have been so mailed, promptly circulate
amended, supplemental or supplemented proxy material and, if required in
connection therewith, resolicit proxies. The Company will not use any proxy
material in connection with the meeting of its stockholders without Parent's
prior approval.
8.4. Stockholder Approval. (a) Promptly following the purchase of
shares of Common Stock pursuant to the Offer, if required by DGCL in order to
consummate the Merger, the Company, acting through its Board of Directors,
shall, in accordance with applicable Law, duly call, give notice of, convene and
hold a meeting of the holders of Common Stock and Company Preference Shares (the
"Company Stockholders' Meeting") for the purpose of voting upon this Agreement
and the Merger and the Company agrees that this Agreement and the Merger shall
be submitted at such meeting. The Company shall use its reasonable best efforts
to solicit from its stockholders proxies, and shall take all other action
necessary and advisable, to secure the vote of stockholders required by
applicable law and the Company Charter or By-Laws to obtain the approval for
this Agreement. The Company agrees that it will include in the Proxy Statement
the recommendation of its Board of Directors that holders of Common Stock and
Company Preference Shares approve and adopt this Agreement and approve the
Merger. Parent will cause all shares of Common Stock and Company Preference
Shares owned by Parent and its Subsidiaries (including Merger Sub) to be voted
in favor of this Agreement and the Merger.
(b) Notwithstanding the provisions of Section 8.4(a), in the event that
Parent and Merger Sub shall acquire in the aggregate at least 90% of the
outstanding shares of Common Stock and 90% of the outstanding shares of each
class of Company Preference Shares, the parties hereto shall, at the request of
Parent, take all necessary and appropriate action to cause the Merger to become
effective as soon as practicable after such acquisition, without a meeting of
shareholders of the Company, in accordance with the DGCL.
8.5. Reasonable Best Efforts. Subject to Section 8.5(c), the Company
and Parent shall, and shall use their reasonable best efforts to cause their
respective Subsidiaries, as applicable, to: (i) promptly make all filings and
seek to obtain all Authorizations (including, without limitation, all filings
required under the HSR Act, the applicable merger regulations of the European
Community and all applicable Polish competition statutes) required under all
applicable Laws with respect to the Merger and the other transactions
contemplated hereby and will reasonably consult and cooperate with each other
with respect thereto; (ii) not take any action (including effecting or agreeing
to effect or announcing an intention or proposal to effect, any acquisition,
business combination or other transaction except as set forth in the Company
Disclosure Statement) which would impair the ability of the parties to
consummate the Merger; and (iii) use their reasonable best efforts to promptly
(x) take, or cause to be taken, all other actions and (y) do, or cause to be
<PAGE>
27
done, all other things reasonably necessary, proper or appropriate to satisfy
the conditions set forth in Annex A of this Agreement and Article IX (unless
waived) and to consummate and make effective the transactions contemplated by
this Agreement on the terms and conditions set forth herein (including seeking
to remove promptly any injunction or other legal barrier that may prevent such
consummation); provided, however, that no loan agreement or contract for
borrowed money shall be repaid except as currently required by its terms, in
whole or in part, and, subject to Section 8.1, no contract shall be amended to
increase the amount payable thereunder or otherwise to be more burdensome to the
Company or any of its Subsidiaries in order to obtain any such consent, approval
or authorization without first obtaining the written approval of Parent and
Merger Sub. Each party shall promptly notify the other party of any
communication to that party from any Governmental Body in connection with any
required filing with, or approval or review by, such Governmental Body in
connection with the Offer and the Merger and the other transactions contemplated
hereby and permit the other party to review in advance any proposed
communication to any Governmental Body in such connection to the extent
permitted by applicable law.
8.6. Access to Information. Subject to currently existing contractual
and legal restrictions applicable to the Company, the Company shall (and shall
cause each of its Subsidiaries to) afford to officers, employees, counsel,
accountants and other authorized representatives of Parent ("Parent
Representatives") reasonable access, during normal business hours throughout the
period prior to the Effective Time, to its properties, books and records
(including, subject to execution of customary access letters, the work papers of
independent accountants), such access not to unreasonably interfere with the
Company's business or operations, and, during such period, shall (and shall
cause each of its Subsidiaries to) furnish promptly to such Parent
Representatives all information concerning its business, properties and
personnel as may reasonably be requested. All information obtained pursuant to
this Section 8.6 shall be subject to the Confidentiality Agreement, which shall
remain in full force and effect until consummation of the Merger or, if the
Merger is not consummated, for the period specified therein; provided, however,
that neither Parent nor the Company shall be precluded from making any
disclosure which it deems required by law or applicable rule or regulation of
any Governmental Body or self-regulatory organization in connection with the
Merger.
8.7. Indemnification of Directors and Officers. (a) From and after the
Effective Time, Parent and the Surviving Corporation shall jointly and severally
indemnify, defend and hold harmless each of the Persons set forth in Schedule
8.7 of the Company Disclosure Statement, and each of the present and former
officers and directors of the Company and any of its Subsidiaries, former
Subsidiaries and their predecessors, and any Person who is or was serving at the
request of the Company as an officer, director, employee or agent of another
Person (collectively, the "Indemnified Parties"), against all losses, expenses,
claims, damages or liabilities arising out of actions or omissions occurring on
or prior to the Effective Time (including the transactions contemplated by this
Agreement) to the fullest extent permitted under applicable Law (and shall also,
subject to Section 8.7(b), advance expenses as incurred to the fullest extent
permitted under applicable Law; provided that, the Person to whom expenses are
advanced provides an undertaking reasonably satisfactory to the Company to repay
such advances if it is ultimately determined that such Person is not entitled to
indemnification); provided, however, that such indemnification shall be provided
only to the extent any directors' and officers' liability insurance policy of
the Company or its Subsidiaries does not provide coverage and actual payment
thereunder with respect to the matters that would otherwise be subject to
indemnification hereunder (it being understood that Parent or the Surviving
Corporation shall, subject to Section 8.7(b), advance expenses on a current
basis as provided in this paragraph (a) notwithstanding such insurance coverage
to the extent that payments thereunder have not yet been made, in which case
Parent or the Surviving Corporation, as the case may be, shall be entitled to
repayment of such advances from the proceeds of such insurance coverage). Parent
and Surviving Corporation agree that all rights to indemnification, including
provisions relating to advances of expenses incurred in defense of any action,
suit or proceeding, whether civil, criminal, administrative or investigative
(each, a "Claim"), existing in favor of the Indemnified Parties as provided in
the Company Charter or By-Laws or pursuant to other agreements, or certificates
of incorporation or by-laws or other similar documents of any of the Company's
Subsidiaries, as in effect as of the date hereof, with respect to matters
occurring through the Effective Time, shall survive the Merger and shall
continue in full force and effect for a period of not less than six years from
the Effective Time; provided, however, that all rights to indemnification in
respect of any Claim asserted, made or commenced within such period shall
continue until the final disposition of such Claim. The Surviving Corporation
shall maintain in effect for not less than six years after the Effective Time
the current policies of directors' and officers' liability insurance maintained
by the Company and the Company's Subsidiaries with respect to matters occurring
prior to the Effective Time; provided however, that in no event shall Parent be
required to expend in any one year an amount in excess of 150% of the annual
premiums currently paid by the Company for such insurance which the Company
represents to be $430,000 for the twelve month period ending May 1, 1999;
provided further, however, that the Surviving Corporation may substitute
therefor policies of at least the same coverage containing terms and conditions
which are no less advantageous to the Indemnified Parties with an insurance
company or companies, the claims paying ability of which is substantially
equivalent to the claims paying ability of the insurance company or companies
providing such insurance coverage for directors and officers of Parent.
<PAGE>
28
(b) In the event that any Claim relating hereto or to the
transactions contemplated by this Agreement is commenced,
before the Effective Time, the parties hereto agree to
co-operate and use their respective reasonable efforts to
vigorously defend against and respond thereto. Any Indemnified
Party wishing to claim indemnification under paragraph (a) of
Section 8.7, upon learning of any such claim, action, suit,
proceeding or investigation, shall promptly notify Parent
thereof, whereupon Parent or the Surviving Corporation shall
have the right, from and after the Effective Time, to assume
and control the defense thereof, and upon such assumption, the
Surviving Corporation shall not be liable to such Indemnified
Parties for any legal expenses of other counsel or any other
expenses subsequently incurred by such Indemnified Parties in
connection with the defense thereof. Notwithstanding the
foregoing, if counsel for the Indemnified Parties advises that
there are issues which raise conflicts of interest between
Parent or the Surviving Corporation and the Indemnified
Parties, the Indemnified Parties may retain separate counsel
and the Surviving Corporation will pay all reasonable
documented fees and expenses of such counsel; provided that
the Surviving Corporation will not be obligated pursuant to
this sentence to pay for more than one firm of counsel for all
Indemnified Parties (plus one local counsel in each
appropriate jurisdiction for all Indemnified Parties) with
respect to any Claim. The Surviving Corporation shall not be
liable for any settlement effected without its prior written
consent.
(c) This Section 8.7 is intended to benefit the Indemnified
Parties and shall be binding on all successors and assigns of
Parent, Merger Sub and the Surviving Corporation.
8.8. Notification of Certain Matters. Each of the Company and Parent
shall give prompt notice to the other party of any notice or other communication
from any third party alleging that the consent of such third party is or may be
required in connection with the transactions contemplated by this Agreement.
Parent or Merger Sub shall promptly give notice to the Company upon any of their
Executive Officers obtaining knowledge of any actual failure of any of the
Tender Offer Conditions or any event which would result in an actual failure of
the Tender Offer Conditions.
8.9. Employee Matters. (a) From and after the Effective Time, Parent
will cause the Surviving Corporation to honor, in accordance with their terms,
the employment contracts, severance agreements and similar agreements with
officers and employees of the Company and its Subsidiaries set forth in Schedule
6.9 of the Company Disclosure Statement (the "Executive Agreements"); provided,
however, that nothing herein shall preclude any change in any Executive
Agreement effective on a prospective basis that is permitted pursuant to the
terms of this Agreement or the applicable Employee Plan. Company performance in
respect of any performance or other programs shall be calculated without taking
into account any expenses or costs directly associated with or arising as a
result of the transactions contemplated by this Agreement or any non-recurring
charges that would not reasonably be expected to have been incurred had the
transactions contemplated by this Agreement not occurred. With respect to
employees of the Company and its Subsidiaries, the obligations of the Company
and its Subsidiaries under the Employee Plans as in effect immediately prior to
the Effective Time and will provide employee benefit plans with aggregate
employee benefits to Company Employees that are no less favorable than the
aggregate benefits provided to them immediately prior to the Effective Time
pursuant to the plans set forth in Schedule 6.9 of the Company Disclosure
Statement; provided that Parent at its sole option may provide employee benefits
to Company Employees which, in the aggregate, are no less favorable than those
applicable to similarly situated employees of Parent. With respect to any plans
established by Parent, to the extent a Company Employee becomes eligible to
participate in any such plans, Parent shall grant to such Company Employee from
and after the Effective Time, credit for all service with the Company and its
affiliates and predecessors (and any other service credited by the Company under
similar Employee Plans) prior to the Effective Time for eligibility to
participate, benefit accrual and vesting purposes. To the extent Parent benefit
plans provide medical or dental welfare benefits, such plans shall waive any
preexisting conditions and actively at-work exclusions with respect to Company
Employees (but only to the extent such Company Employees were provided coverage
under the Employee Plans) and shall provide that any expenses incurred on or
before the Effective Time in the applicable plan year by or on behalf of any
Company Employees shall be taken into account under the Parent benefit plans for
the purposes of satisfying applicable deductible, co-insurance and maximum
out-of- pocket provisions for such Company Employees.
(b) The Company may amend and/or take action with respect to
its stock incentive plans prior to the Effective Time to
provide that upon the Merger, that options, stock appreciation
rights or other awards granted under such plan and outstanding
as of the Effective Time shall be fully vested, and in the
case of stock options or stock appreciation rights, be
immediately exercisable.
<PAGE>
29
(c) For purposes of this Section 8.9, the term "Company
Employees" shall mean all individuals employed by the Company
and its Subsidiaries (including those on lay-off, disability
or leave of absence, paid or unpaid) immediately prior to the
Effective Time.
8.10 Preparation of Tax Returns and Payment of Taxes. The Company and
its Subsidiaries shall prepare and timely file all Tax Returns and amendments
thereto required to be filed by or with respect to them on or before the
Effective Time. Parent shall have a reasonable opportunity to review all such
Tax Returns and amendments thereto prior to filing. The Company and its
Subsidiaries shall timely pay all Taxes shown to be payable on such Tax Returns.
8.11 Stock Option and Other Plans; Company Warrants. (a) Prior to the
Tender Offer Acceptance Date, both the Board of Directors of the Company (or, if
appropriate, any committee thereof) and the Company shall use their reasonable
best efforts to obtain the consent of all of the holders of options to purchase
Common Stock (the "Options") heretofore granted under any stock option plans of
the Company (the "Stock Plans") and the holders of Company Warrants to provide
for the cancellation, of all the outstanding Options and Company Warrants on the
terms set forth in Sections 8.11 and 5.5.
(b) Within three business days after the Payment Date, each Option,
whether or not then vested or exercisable, and each Company Warrant, whether or
not then vested or exercisable, shall, subject to the receipt by the Company of
any required consents from the holder of such Options and Company Warrants, no
longer be exercisable for the purchase of shares of Common Stock but shall
entitle each holder thereof, in cancellation and settlement therefor, to
payments in cash (subject to any applicable withholding taxes, the "Cash
Payment") equal to the product of (x) the total number of shares of Common Stock
subject to such Option or Company Warrant, as the case may be, as to which such
Option or Company Warrant could have been exercisable (assuming such Option or
Company Warrant was fully vested) and (y) the excess, if any, of the Offer Price
over the exercise price per share of Common Stock subject to such Option or
Company Warrant. The Company will pay each such Cash Payment to be paid to each
holder of an outstanding Option or Company Warrant, as the case may be, within
six business days of the Payment Date; provided that such holder has delivered
the consent described in Section 8.11(a) to the Company. Parent shall provide,
or cause to provided, to the Company on a timely basis all funds necessary to
pay each such Cash Payment.
ARTICLE IX
Conditions to the Merger
9.1. Conditions Precedent to Obligations of Parent, Merger Sub and the
Company. The respective obligations of Parent and Merger Sub, on the one hand,
and the Company, on the other hand, to effect the Merger are subject to the
satisfaction or waiver (subject to applicable law) at or prior to the Effective
Time of each of the following conditions and only the following conditions:
(a) Approval of Company's Stockholders. To the extent required
by applicable law, this Agreement and the Merger shall have
been approved and adopted by holders of a majority of the
outstanding share of the Common Stock of the Company entitled
to vote in accordance with applicable law;
(b) HSR Act. Any waiting period applicable (and any extension
thereof) under the HSR Act applicable to the Merger shall have
expired or been terminated;
(c) Other Regulatory Approvals. All required approvals of the
Polish Anti-Monopoly Commission shall have been granted. A
decision of the Commission of the European Communities that
the purchase of the Common Stock pursuant to the Offer and the
Merger are compatible with the common market shall have been
received if required;
(d) Injunction. No preliminary or permanent injunction or
other order shall have been issued by any court or by any
governmental or regulatory agency, body or authority which
prohibits the consummation of the Offer or the Merger and the
transaction contemplated by this Agreement and which is in
effect at the Effective Time; provided, however, that, in the
case of a decree, injunction or other order, each of the
parties shall have used reasonable best efforts to prevent the
entry of any such injunction or other order and to appeal as
promptly as possible any decree, injunction or other order
that may be entered;
(e) Statutes. No statute, rule, regulation, executive order,
decree or order of any kind shall have been enacted, entered,
promulgated or enforced by any court or governmental authority
which prohibits the consummation of the Offer or the Merger or
has the effect of making the purchase of the Common Stock
illegal;
<PAGE>
30
(f) Minimum Condition. Merger Sub shall have purchased shares
of Common Stock pursuant to the Offer in a number sufficient
to satisfy the Minimum Condition; and
(g) Company Preference Shares. Merger Sub shall have purchased
the Company Preference Shares from the owners thereof and
shall be the sole record and beneficial owner of all of the
issued and outstanding Company Preference Shares; provided,
however, that this Section 9.1(g) shall not be a condition to
the obligations of Parent and Merger Sub if Parent or Merger
Sub shall have failed to purchase all of the Company
Preference Shares in breach of their obligations under the
Preferred Stockholders Agreements.
ARTICLE X
Termination
10.1. Termination by Mutual Consent. This Agreement may be terminated
and the Merger may be abandoned at any time prior to the Effective Time, before
or after the approval by stockholders, by the mutual written consent of Parent
and the Company.
10.2. Termination by Either Parent or the Company. This Agreement may
be terminated (upon notice from the terminating party to the other parties) and
the Merger may be abandoned by action of the Board of Directors of either Parent
or the Company if:
(a) the Payment Time shall not have occurred by the date (the
"Termination Date") which is 120 days after the date hereof;
provided that the right to terminate this Agreement under this
clause shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause
of or resulted in the failure of the Merger Effective Time to
occur on or before the Termination Date; or
(b) any court of competent jurisdiction or Governmental Body
shall have issued an order, decree or ruling or taken any
other action permanently restraining, enjoining or otherwise
prohibiting the acceptance for payment of, or payment for,
shares of Common Stock pursuant to the Offer or the payment
for shares of Common Stock or the making of any Cash Payment
pursuant to the Merger and such order, decree, ruling or other
action shall have become final and nonappealable.
10.3. Termination by the Company. This Agreement may be terminated
(upon notice to Parent) by the Company and the Merger may be abandoned by action
of the Board of Directors of the Company:
(a) if Parent or Merger Sub breaches or fails in any material
respect to perform or comply with its covenants and agreements
contained herein or breaches its representations and
warranties in any material respect and such breach cannot or
has not been cured within fifteen (15) days after the giving
of written notice of such breach to the Parent and Merger Sub,
other than any breach or breaches which is or are not
reasonably likely to affect adversely Parent's or Merger Sub's
ability to complete the Offer or the Merger; or
(b) if Parent or Merger Sub shall have (i) failed to commence
the Offer within five (5) business days following the date of
this Agreement, (ii) terminated the Offer in violation of its
terms or this Agreement; or (iii) failed to pay for shares of
Common Stock in accordance with the terms of the Offer and, in
any event, on or prior to the Termination Date, unless, in the
case of (i), (ii) or (iii), such failure shall have been
caused by the failure of the Company to satisfy the conditions
set forth in clauses (e) or (f) of Annex A.
10.4. Termination by Parent and Merger Sub. This Agreement may be
terminated (upon notice to the Company) by Parent and Merger Sub, and the Merger
may be abandoned by action of the Board of Directors of Parent if:
(a) the Board of Directors of the Company shall have withdrawn
or modified its approval or recommendation of this Agreement,
the Offer or the Merger in a manner adverse to Parent or
Merger Sub;
(b) if the Offer is terminated or expires in accordance with
its terms without Merger Sub having purchased any Common Stock
thereunder due to an occurrence which would result in a
failure to satisfy any one or more of the conditions set forth
on Annex A hereto, unless any such failure shall have been
caused by or resulted from the failure of Parent or Merger Sub
<PAGE>
31
to perform in any material respect any covenant or agreement
of either of them contained in this Agreement or the material
breach by Parent or Merger Sub of any representation or
warranty of either of them contained in this Agreement;
(c) in the event of a breach by the Company of any
representation, warranty, covenant or agreement contained in
this Agreement which (i) would give rise to the failure of a
condition set forth in clause (e) or (f) of Annex A, (ii)
cannot or has not been cured prior to the earlier of (x)
fifteen (15) days after the giving of written notice of such
breach to the Company and (y) two (2) business days prior to
the date on which the Offer expires and (iii) has not been
waived by Parent pursuant to the provisions hereof;
(d) if any condition contained in Annex A hereto shall not
have been satisfied by the expiration date of the Offer and on
or prior to such date it shall have been publicly disclosed,
or Parent shall have otherwise learned, that beneficial
ownership (determined for the purposes of this clause (d)(ii)
as set forth in Rule 13d-3 promulgated under the Exchange Act)
of 30% or more of the Common Stock has been acquired by any
Person or group (as defined in Section 13(d)(3) under the
Exchange Act); or
(e) any Stockholders Agreement shall have ceased to be in full
force and effect or any party to any such agreement (other
than Parent or the Merger Sub) shall materially breach or
repudiate any such agreement.
10.5. Effect of Termination and Abandonment. In the event of
termination of this Agreement and abandonment of the Merger pursuant to this
Article X, no party hereto (or any of its directors or officers) shall have any
liability or further obligation to any other party to this Agreement, except as
provided in Section 8.7 or Section 10.6, and except that nothing herein will
relieve any party from liability for any breach of this Agreement.
10.6. Payment of Certain Fees. (a) If this Agreement is terminated by
Parent in accordance with Section 10.4(b) or 10.4(c) hereof by reason of the
occurrence of any event, not resulting from the wilful action or wilful omission
or gross negligence of the Company or any of its Subsidiaries, and which is
specified in clause (e) of Annex A, then the Company shall reimburse Parent in
immediately available funds for the reasonable documented expenses of Parent and
Merger Sub incurred in connection with the transactions contemplated by this
Agreement (including, without limitation, printing fees, filing fees and fees
and expenses of its legal and financial advisors and all fees and expenses
payable to any financing courses) not to exceed $8,000,000, such payment to be
made by the Company not later than the second business day after receipt by the
Company of documentation evidencing such expenses.
(b) If this Agreement is terminated (i) by Parent in accordance with
Section 10.4(b) because of the occurrence of any event specified in
clauses (f) or (g) of Annex A or any event specified in clause (e) of
Annex A and resulting from wilful action or wilful omission or gross
negligence of the Company or any of its Subsidiaries; (ii) by Parent in
accordance with Section 10.4(a) or Section 10.4(c) (but, in the case of
Section 10.4(c), only to the extent such event results from the wilful
act or wilful omission or gross negligence of the Company or any of its
Subsidiaries); or (iii) by Parent pursuant to Section 10.4(d), if
within twelve months of the date of such termination the Company enters
into a definitive agreement for a transaction in respect of an
Acquisition Proposal with any Person other than Parent or its
Affiliates; then the Company shall pay to Parent, on the business day
next succeeding the date of termination (or in the case of a
termination pursuant to Section 10.6(b)(iii), the date on which such
definitive agreement is entered into), by wire transfer in immediately
available funds an amount equal to $32,000,000.
ARTICLE XI
Miscellaneous and General
11.1. Expenses. Except as set forth in Article VIII and Section 10.6,
each party shall bear its own expenses, including the fees and expenses of any
attorneys, accountants, investment bankers, brokers, finders or other
intermediaries or other Persons engaged by it and filing fees, incurred in
connection with this Agreement and the transactions contemplated hereby.
11.2. Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or upon receipt after being mailed by
first-class mail, postage prepaid and return receipt requested in each case to
the applicable addresses set forth below:
<PAGE>
32
If to the Company:
@Entertainment, Inc.
c/o At Entertainment Limited
40-41 Conduit Street
London W1R 9FB
Attn: Robert E. Fowler, III
Facsimile: (44 171) 478 3802
with a copy to:
Baker & McKenzie
815 Connecticut Ave, N.W.
Washington, DC 20006
Attn: Marc R. Paul, Esq.
Facsimile: (202) 452-7074
If to Parent or Merger Sub:
c/o United Pan-European Communications N.V.
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attn: Timothy Bryan
Facsimile: (31 20) 778 9871
with a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, NY 10036
Attn: William F. Wynne, Jr., Esq.
Facsimile: (1 212) 354 8113
or to such other address as such party shall have designated
by notice so given to each other party.
11.3. Amendments, Waivers, Etc. This Agreement may be amended, changed,
supplemented, waived or otherwise modified only by an instrument in writing
signed by the party (or, in the case of Section 8.7, the Indemnified Party)
against whom enforcement is sought; provided that, after the adoption of this
Agreement by the stockholders of the Company, no such amendment, change,
supplement or waiver shall be made without the further requisite approval of
such stockholders if such amendment, change, supplement or waiver by law
requires the further approval by such stockholders.
11.4. No Assignment. This Agreement shall be binding upon and shall
inure to the benefit of and be enforceable by the parties and their respective
successors and assigns; provided that, except as otherwise expressly set forth
in this Agreement, neither the rights nor the obligations of any party may be
assigned or delegated without the prior written consent of the other parties.
11.5. Entire Agreement. Except as otherwise provided herein, this
Agreement (together with the Company Disclosure Statement, the Parent Disclosure
Statement and the Confidentiality Agreement and the other agreements expressly
contemplated hereby) and Annex A to this Agreement embody the entire agreement
and understanding between the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter. There are no representations, warranties or covenants by the parties
hereto relating to such subject matter other than those expressly set forth in
this Agreement (including the Company Disclosure Statement and the Parent
Disclosure Statement) and any writings expressly required hereby.
11.6. Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable Law, each party waives any
objection to the imposition of such relief.
11.7. Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
<PAGE>
33
11.8. No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
11.9. No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of and shall not be enforceable by any Person or entity who
or which is not a party hereto, except for the indemnification provisions
contained in Section 8.7, which provisions may be enforced by any Indemnified
Party referred to therein. Notwithstanding anything to the contrary contained in
this Agreement, the provisions of Section 8.7 of this Agreement may not be
amended or altered in any manner with respect to any Indemnified Party without
the written consent of such Indemnified Party. No assignment of this Agreement
shall relieve Parent from its obligations to any Indemnified Party contained in
Section 8.7 of this Agreement.
11.10. Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court for the District of
Delaware or the Chancery Court of the State of Delaware in any action, suit or
proceeding arising in connection with this Agreement, and agrees that any such
action, suit or proceeding shall be brought only in such court (and waives any
objection based on forum non conveniens or any other objection to venue
therein); provided, however, that such consent to jurisdiction is solely for the
purpose referred to in this Section 11.10 and shall not be deemed to be a
general submission to the jurisdiction of said courts or in the State of
Delaware other than for such purpose. Parent, Merger Sub and the Company hereby
waive any right to a trial by jury in connection with any such action, suit or
proceeding.
11.11. Public Announcements. Parent and the Company will agree upon the
timing and content of the initial press release to be issued describing the
transactions contemplated by this Agreement, and will not make any public
announcement thereof prior to reaching such agreement unless required to do so
by applicable Law or regulation or stock exchange requirement. To the extent
reasonably requested by any other party, each party will thereafter consult with
and provide reasonable cooperation to the others in connection with the issuance
of further press releases or other public documents describing the transactions
contemplated by this Agreement.
11.12. Governing Law. This Agreement and all disputes hereunder shall
be governed by and construed and enforced in accordance with the internal laws
of the State of Delaware, without regard to principles of conflict of laws.
11.13. Name, Captions, Etc. The names assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Unless otherwise specified,
(a) the terms "hereof", "herein" and similar terms refer to this Agreement as a
whole and (b) references herein to Articles or Sections refer to articles or
sections of this Agreement. Wherever appearing herein, the word "including"
shall be deemed to be followed by the words "without limitation."
11.14. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
11.15. Survival of Representations, Warranties, Covenants and
Agreements. The respective representations and warranties of the parties
contained herein or in any certificates or other documents delivered prior to or
at the Closing shall survive the execution and delivery of this Agreement, but
shall terminate at the Effective Time. The respective covenants and agreements
of the parties contained herein or in any other documents delivered prior to or
at the Closing shall survive the execution and delivery of this Agreement and
shall only terminate in accordance with their respective terms.
11.16. Severability. In case any provision in this Agreement shall be
held invalid, illegal or unenforceable in a jurisdiction, such provision shall
be modified or deleted, as to the jurisdiction involved, only to the extent
necessary to render the same valid, legal and enforceable, and the validity,
legality and enforceability of the remaining provisions hereof shall not in any
way be affected or impaired thereby nor shall the validity, legality or
enforceability of such provision be affected thereby in any other jurisdiction.
11.17. Disclosure Statements. The parties acknowledge that the Company
Disclosure Statement and the Parent Disclosure Statement to this Agreement (i)
relate to certain matters concerning the disclosures required and transactions
contemplated by this Agreement, (ii) are qualified in their entirety by
reference to specific provisions of this Agreement, (iii) are not intended to
constitute and shall not be construed as indicating that such matter is required
to be disclosed, nor shall such disclosure be construed as an admission that
such information is material with respect to the Company or Parent, as the case
may be, except to the extent required by this Agreement.
<PAGE>
34
IN WITNESS WHEREOF, this Agreement has been executed and
delivered by the parties set forth below.
@ENTERTAINMENT, INC.
By: /s/ Robert E. Fowler, III
Name: Robert E. Fowler, III
Title: Chief Executive Officer
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Mark L. Schneider
Name: Mark L. Schneider
Title: Chairman of the Management Board
and Chief Executive Officer
BISON ACQUISITION CORP.
By: /s/ Anton H.E. van Voskuijlen
Name: Anton H.E. van Voskuijlen
Title: Vice President
<PAGE>
35
ANNEX A
The capitalized terms used in this Annex A shall have the
meanings set forth in the Agreement to which it is annexed, except that
the term "Merger Agreement" shall be deemed to refer to the Agreement
to which this Annex A is appended and "Purchaser" shall be deemed to
refer to Merger Sub.
Notwithstanding any other provision of the Offer or the Merger
Agreement, Purchaser shall not be required to accept for payment or,
subject to any applicable rules and regulations of the Commission,
including Rule 14e-1c under the Exchange Act (relating to Purchaser's
obligation to pay for or return tendered shares promptly after
termination or withdrawal of the Offer), pay for any shares of Common
Stock tendered pursuant to the Offer and may terminate or amend the
Offer and may postpone the acceptance of, and payment for, any shares
of Common Stock, if (i) there shall not have been validly tendered and
not properly withdrawn prior to the expiration of the Offer a number of
shares of Common Stock which represent at least a majority of all of
the issued and outstanding shares of Common Stock, on a fully diluted
basis, on the date the Offer is consummated (the "Minimum Condition"),
(ii) any applicable waiting period (and any extension thereof) under
the HSR Act shall not have expired or been terminated (the "HSR
Condition"), (iii) all applicable approvals of the Polish Anti-Monopoly
Commission shall not have been granted prior to the expiration of the
Offer (the "PAMC Condition"), (iv) if required by applicable law, a
decision of the Commission of the European Community that the purchase
of the Stock pursuant to the Offer and the Merger are compatible with
the common market has not been received prior to the expiration of the
Offer (the "EU Condition" and together with the HSR Condition and PAMC
Condition, the "Regulatory Conditions"), or (v) if, at any time on or
after the date of the Merger Agreement and at or before the time of
payment for any such shares of Common Stock (whether or not any shares
of Common Stock have theretofore been accepted for payment or paid for
pursuant to the Offer) any of the following shall occur:
(a) there shall be instituted or pending any action or
proceeding by any Governmental Body, or by any other Person,
domestic or foreign, before any court of competent
jurisdiction or governmental authority or agency, domestic or
foreign (other than proceedings and claims referenced on
Schedule 6.7 to the Company Disclosure Statement), (i)
challenging or seeking to, or which could reasonably be
expected to make illegal, impede, delay or otherwise directly
or indirectly restrain, prohibit or make materially more
costly the Offer or the Merger or would reasonably be expected
to result in material damages, (ii) seeking to prohibit or
materially limit the ownership or operation by Parent or
Purchaser of all or any material portion of the business or
assets of the Company and its Subsidiaries taken as a whole or
to compel Parent or Purchaser to dispose of or hold separately
all or any material portion of the business or assets of
Parent and its subsidiaries taken as a whole or the Company
and its Subsidiaries taken as a whole, or seeking to impose
any limitation on the ability of Parent or Purchaser to
conduct its business or own such assets, (iii) seeking to
impose limitations on the ability of the Parent or Purchaser
effectively to exercise full rights of ownership of the share
of the capital stock of the Company, including, without
limitation, the right to vote any such shares of capital stock
acquired or owned by Purchaser or Parent on all matters
properly presented to the Company's stockholders, (iv) seeking
to require divestiture by Parent or Purchaser of any shares of
capital stock of the Company, (v) requiring or permitting the
Company's competitors to share access to the Company's
broadcast systems (other than access required under Polish law
on the date hereof), or (vi) otherwise directly or indirectly
relating to the Offer or the Merger and which would have a
Material Adverse Effect or a material adverse effect on the
business, properties, assets, liabilities, operations, results
of operations or condition (financial or otherwise) of Parent
and its Subsidiaries, taken as a whole;
(b) there shall be any statute, rule, regulation, legislation,
interpretation, judgment, order or injunction, enacted,
enforced, promulgated, amended or issued and applicable to or
deemed by a Governmental Body to be applicable to (i) Parent,
Purchaser, the Company or any Subsidiary or (ii) the Offer or
the Merger, by any Governmental Body, court, administrative or
regulatory authority or agency, other than the routine
application of the waiting period provisions of the HSR Act,
the approval process of the Polish Anti-Monopoly Commission
and, if required by applicable law, the approval process of
the Commission of the European Community to the Offer or to
the Merger, which could reasonably be expected to directly or
indirectly, result in any of the consequences referred to in
clauses (i) through (vii) paragraph (a) above;
<PAGE>
A-1
(c) any change shall have occurred, or Parent shall have
become aware of any fact, that has had or would have a
Material Adverse Effect;
(d) there shall have occurred (i) any general suspension of
trading in, or limitation on prices for, securities on the
Nasdaq Stock Market's National Market (excluding any
coordinated trading halt triggered solely as a result of a
specified decrease in a market index), (ii) any decline in the
Nasdaq Composite Index in excess of 30% measured from the
close of business on the trading day immediately preceding the
date of the Merger Agreement, (iii) a suspension of the
currency exchange markets for the U.S. Dollar which continues
in effect for three business days or for the Dutch Guilder
which continues in effect for five business days, (iv) a
declaration of a banking moratorium or any suspension of
payments in respect of banks in the United States or The
Netherlands, (v) any material limitation (whether or not
mandatory) by any United States or Dutch Governmental Body on
the extension of credit by banks or other lending
institutions, (vi) the actual declaration of war on or by the
United States, The Netherlands or Poland, or the invasion of
the territory of a NATO member state by a non-NATO member
state, or (vii) in the case of any of the foregoing existing
at the time of the commencement of the Offer, a material
acceleration or material worsening thereof;
(e) any of the representations or warranties made by the
Company in the Merger Agreement that are qualified as to
materiality shall be untrue or incorrect in any respect or any
such representations and warranties that are not so qualified
shall be untrue or incorrect in any material respect, in each
case as of the date of the Merger Agreement and the scheduled
expiration date of the Offer, except (i) for changes
specifically permitted by the Merger Agreement and (ii) that
those representations and warranties which address matters
only as of a particular date shall remain true and correct as
of such date.
(f) the Company shall have failed to perform any material
obligation or to comply with any material agreement or
material covenant of the Company to be performed or complied
with by it under this Agreement;
(g) the Company's Board of Directors or any committee thereof
shall have withdrawn, or shall have modified or amended in a
manner adverse to Parent or Purchaser, the approval, adoption
or recommendation, as the case may be, of the Offer, the
Merger or the Merger Agreement, or approved or recommended, or
announced a neutral position with respect to, any merger,
consolidation, other business combination, sale of material
assets, takeover proposal or other acquisition of Stock other
than the Offer and the Merger or upon request by Parent, shall
fail to reaffirm its approval and recommendation of the Offer,
the Merger or the Merger Agreement;
(h) it shall have been publicly disclosed, or the Purchaser
shall have otherwise learned, that beneficial ownership
(determined for the purposes of this paragraph (h) as set
forth in Rule 13d-3 promulgated under the Exchange Act) of 30%
or more of the Common Stock has been acquired by any Person
(including the Company or any of its Subsidiaries or
Affiliates) or group (as defined in Section 13(d)(3) under the
Exchange Act), which person or group is not, on the date of
the Merger Agreement, the beneficial owner of 30% or more of
the Common Stock;]
(i) the Merger Agreement shall have been terminated in
accordance with its terms;
(j) any Stockholders Agreement shall fail or cease to be in
full force and effect or any party to any such agreement
(other than Parent or the Purchaser) shall materially breach
or repudiate any such agreement.
which, in the reasonable judgment of Purchaser, in any such case and
regardless of the circumstances giving rise to any such condition,
makes it inadvisable to proceed with such acceptance for payment or
payment.
The foregoing conditions are for the sole benefit of Parent
and the Purchaser and may be asserted by Parent or the Purchaser, or
may be waived by Parent or the Purchaser, in whole or in part at any
time and from time to time in their respective reasonable discretion.
The failure by Parent or the Purchaser at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right and
each such right shall be deemed an ongoing right which may be asserted
at any time and from time to time. Any determination by Parent or the
Purchaser concerning the events described in this Annex A shall be
final and binding upon all parties.
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of June 2, 1999, among UNITED PAN-EUROPE
COMMUNICATIONS NV, a corporation organized under the laws of The Netherlands
("Parent"), BISON ACQUISITION CORP., a Delaware corporation and an indirect
wholly owned subsidiary of Parent ("Sub"), and the other parties signatory
hereto (individually and collectively, the "Stockholder").
W I T N E S S E T H :
WHEREAS, prior to entering into this Agreement, Parent, Sub
and Eagle, Inc., a Delaware corporation (the "Company"), entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Sub will be merged with and into the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company
desire that as soon as practicable (and not later than five business days) after
the execution and delivery of the Merger Agreement, Sub commence a cash tender
offer to purchase all outstanding shares of Company Common Stock (as defined in
Section 1)
including all of the Shares (as defined in Section 2); and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the
common stock, $.01 par value, of the Company.
(b) "Company Securities" shall mean the Existing Options and
the Existing Company Warrants, together with any Options or Company Warrants
acquired by the Stockholder after the date hereof and prior to the termination
of this Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise.
(c) "Existing Company Warrants" shall mean the Company
Warrants set forth opposite the Stockholder's name on Schedule I hereto.
(d) "Existing Options" shall mean the Options set forth
opposite the Stockholder's name on Schedule I hereto.
(e) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
2. Tender of Shares.
(a) Stockholder hereby agrees to validly tender (and not to
withdraw) pursuant to and in accordance with the terms of the Offer, in a timely
manner for acceptance by Sub in the Offer, the number of shares of Company
Common Stock (if any) set forth opposite the Stockholder's name on Schedule I
hereto (the "Existing Shares" and, together with any shares of Company Common
Stock acquired by the Stockholder after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise, the "Shares"), owned
by it. The Stockholder hereby acknowledges and agrees that Parent's obligation
to accept for payment and pay for Company Common Stock in the Offer, including
the Shares, is subject to the terms and conditions of the Offer. The Stockholder
shall be entitled to receive the highest price paid by Sub pursuant to the
Offer. The Offer Price shall not be less than $19.00, payable in cash.
(b) The Stockholder hereby agrees to permit Parent and Sub to
publish and disclose in the Offer Documents and, if approval of the stockholders
of the Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the Securities and Exchange Commission)
its identity and ownership of Company Common Stock and the nature of its
commitments, arrangements and understandings under this Agreement.
3. Provisions Concerning Company Common Stock. The Stockholder
hereby agrees that during the period commencing on the date hereof and
continuing until the first to occur of (i) the Effective Time, (ii) the last
date the Option is exercisable pursuant to Section 4 and (iii) the termination
date set forth in Section 9, at any meeting of the holders of Company Common
<PAGE>
1
Stock, however called, or in connection with any written consent of the holders
of Company Common Stock, the Stockholder shall vote (or cause to be voted) the
Shares (if any) owned by the Stockholder whether issued, heretofore owned or
hereafter acquired, (i) in favor of the Merger, the execution and delivery by
the Company of the Merger Agreement and the approval of the terms thereof and
each of the other actions contemplated by the Merger Agreement and this
Agreement and any actions required in furtherance thereof and hereof; (ii)
against any action or agreement that would result in a breach in any respect of
any covenant, representation or warranty or any other obligation or agreement of
the Company under the Merger Agreement; and (iii) except as otherwise agreed to
in writing in advance by Parent, against the following actions (other than the
Merger and the transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its subsidiaries; (B) a sale,
lease or transfer of a material amount of assets of the Company or its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or its subsidiaries; (C) (1) any change in a majority of the
persons who constitute the board of directors of the Company; (2) any change in
the present capitalization of the Company or any amendment of the Company's
Certificate of Incorporation or By-laws; (3) any other material change in the
Company's corporate structure or business; or (4) any other action involving the
Company or its subsidiaries which is intended, or could reasonably be expected,
to impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by this Agreement and the Merger
Agreement. The Stockholder shall not enter into any agreement or understanding
with any Person or entity the effect of which would be to violate the provisions
and agreements contained in this Section 3.
4. Stock Option; Certain Purchase Obligations.
(a) The Stockholder hereby grants to Sub (x) an irrevocable
option (the "Stock Option") to purchase the Shares at a purchase price per Share
(the "Purchase Price") equal to $19.00, payable in cash, and (y) an irrevocable
option (the "Securities Option" and, together with the Stock Option, the
"Option") to purchase the Company Securities at a price per Company Security
equal to the Purchase Price less the exercise price of such Company Security,
payable in cash, in each case until the termination date set forth in Section 9.
Until the termination date set forth in Section 9, if (i) the Offer is
terminated, abandoned or withdrawn by Parent or Sub (whether due to the failure
of any of the conditions thereto or otherwise), (ii) the Offer is consummated
but the Shares have not been validly tendered into the Offer or (iii) the Merger
Agreement is terminated in accordance with its terms, the Option shall, in any
such case, become exercisable, in whole but not in part, upon the first to occur
of any such event and remain exercisable, in whole but not in part, until the
date which is 90 days after the date of the occurrence of such event, but shall
not be exercisable in each case unless: (x) all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), required for the purchase of Shares and/or Company Securities, as the
case may be, upon the exercise of the Option shall have expired or been waived
and all other necessary governmental consents required for Sub to purchase
Shares and/or Company Securities, as the case may be, upon the exercise of the
Option, including, but not limited to, all necessary approvals of the Polish
Anti-Monopoly Commission, and (y) there shall not then be in effect any
preliminary or final injunction or other order issued by any court or
governmental, administrative or regulatory agency or authority prohibiting the
exercise of the Option pursuant to this Agreement. Provided that this Agreement
has not been terminated, in the event that the Option is not exercisable because
the circumstances described in clauses (x) and (y) have not occurred, then the
Option shall be exercisable for the 90 day period commencing on the date that
the circumstances set forth in clauses (x) and (y) have occurred. In the event
that Parent wishes to exercise the Option, Parent shall send a written notice to
the Stockholder identifying the place for the closing of such purchase at least
three business days prior to such closing.
(b) In the event that Sub shall have purchased Shares
purchased in the Offer in an amount necessary to satisfy the Minimum Condition
in accordance with the terms of the Merger Agreement, Sub shall thereafter
purchase all of the Company Securities then held by the Stockholder no later
than the date which is the third business day after the date of such
consummation, at a purchase price per Company Security equal to the Offer Price
for the Shares underlying such Company Security less the exercise price of such
Company Security.
5. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of Shares and Company Securities set forth
opposite such Stockholder's name on Schedule I hereto. On the date hereof, the
Existing Shares, Existing Options and Existing Company Warrants set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
Shares and Company Securities owned beneficially or of record by such
Stockholder. The Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2, 3 and 4
hereof, sole power of disposition, sole power of conversion, sole power to
<PAGE>
2
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case with respect to all of the Existing Shares,
Existing Options and Existing Company Warrants set forth opposite Stockholder's
name on Schedule I hereto, with no limitations, qualifications or restrictions
on such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
(c) No Conflicts. Except for (i) filings and approvals under
the HSR Act or any other applicable Laws related to competition, antitrust,
monopoly or similar matters, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
performance by such Stockholder of its obligations hereunder and (B) none of the
execution and delivery of this Agreement by such Stockholder, the performance by
such Stockholder of its obligations hereunder or compliance by such Stockholder
with any of the provisions hereof shall (1) conflict with or result in any
breach of any applicable organizational documents applicable to such
Stockholder, or (2) violate any order, writ, injunction, decree, judgment,
statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) No Finder's Fees. Except as disclosed in the Merger
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
(e) No Encumbrances. The Stockholder's Shares and Company
Securities and the certificates representing such Shares and Company Securities
are now, and at all times during the term hereof will be, held by such
Stockholder, or by a nominee or custodian for the benefit of such Stockholder,
free and clear of all liens, claims, security interests, proxies, voting trusts
or agreements, understandings or arrangements or any other encumbrances
whatsoever, except for any such encumbrances or proxies arising hereunder. The
transfer by the Stockholder of its Shares and Company Securities to Sub in the
Offer or hereunder shall pass to and unconditionally vest in Sub good and valid
title to all such Shares and Company Securities, free and clear of all claims,
liens, restrictions, security interests, pledges, limitations and encumbrances
whatsoever.
(f) Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon the Stockholder's execution and delivery of
this Agreement.
6. Covenants of the Stockholder. The Stockholder covenants and
agrees as follows:
(a) No Solicitation. Beginning on the date hereof and ending
on the last date the Option is exercisable pursuant to Section 4 hereof, the
Stockholder shall not, in its capacity as such, directly or indirectly,
initiate, solicit (including by way of furnishing information), encourage or
respond to or take any other action knowingly to facilitate, any inquiries or
the making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) with respect to the Company that constitutes or reasonably
may be expected to lead to, an Acquisition Proposal, or enter into or maintain
or continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain any Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, or authorize or permit any Person or entity acting on
behalf of the Stockholder to do any of the foregoing. If the Stockholder
receives any inquiry or proposal regarding any Acquisition Proposal, the
Stockholder shall promptly inform Parent of that inquiry or proposal and the
details thereof.
(b) Restriction on Transfer, Proxies and Non-Interference.
Beginning on the date hereof and ending on the last date the Stock Option is
exercisable pursuant to Section 4 hereof, except as expressly contemplated by
this Agreement, the Stockholder shall not (i) directly or indirectly, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Shares and Company Securities or any interest therein; provided
<PAGE>
3
that the Stockholder may transfer any Shares and/or Company Securities to any
Affiliate of the Stockholder; provided, further that such transferee shall have
become a party to this Agreement (or an agreement identical to this Agreement)
and shall be deemed to make all representations and warranties set forth in
paragraph 5 hereof on the date of the transfer of such Shares and/or Company
Securities; (ii) grant any proxies or powers of attorney (except for powers of
attorney granted to Affiliates of the Stockholder solely for administrative
purposes and which require the holder thereof to vote any and all Shares subject
to such powers in accordance with this Agreement), deposit any Shares and/or
Company Securities into a voting trust or enter into a voting agreement with
respect to any Shares and/or Company Securities; or (iii) take any action that
would make any representation or warranty of such Stockholder contained herein
untrue or incorrect or have the effect of preventing the Stockholder from
performing the Stockholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
(d) Stop Transfer; Changes in Shares. The Stockholder agrees
with, and covenants to, Parent that the Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares or Company
Securities, unless such transfer is made in compliance with this Agreement. In
the event of a stock dividend or distribution, or any change in the Company
Common Stock by reason of any stock dividend, split-up, recapitalization,
combination, exchange of shares or the like, the term "Shares" shall be deemed
to refer to and include the Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Shares
may be changed or exchanged and the Purchase Price shall be appropriately
adjusted. The Stockholder shall be entitled to receive any cash dividend paid by
the Company during the term of this Agreement until Shares are purchased in the
Offer or hereunder.
7. Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary, the covenants and agreements set forth herein shall
not prevent of the Stockholder (or any of its designees) from taking any action,
subject to the applicable provisions of the Merger Agreement, while acting in
his or her (or such designee's) capacity as a director of the Company.
8. Miscellaneous.
(a) Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement; provided that no party shall be required to incur unreasonable
expense in complying with this paragraph.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understanding, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and shall
be binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including,
without limitation, such Stockholder's heirs, guardians, administrators or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations under this Agreement of the
transferor in the event such transferee does not perform such obligations.
(d) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party provided that Parent may assign, at its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent, although no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
relevant parties hereto.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
<PAGE>
4
If to the Stockholders: At the addresses set forth on
Schedule I hereto
copy to: Allen & Overy
10 East 50th Street
28th Floor
New York City, NY 10022
Attention: Managing Partner
Facsimile: + 212 610 6399
If to Parent or Sub:
c/o United Pan-Europe Communications NV
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attention: Anton H.E. van Voskuijlen
Facsimile: +31 20 778 9817
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr, Esq.
Facsimile: +212 354 8113
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity;
provided that no party shall be liable for any consequential or punitive damages
or damages for lost profits or lost opportunities, whether or not such damages,
profits or opportunities were foreseen or foreseeable by such party, except to
the extent such damages are the result of a breach of this Agreement arising out
of the gross negligence or willful misconduct of such party.
(i) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of any United States District Court or any court of the
State of Delaware, in each case located in the City of Wilmington, Delaware, in
any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding may be brought in such court
(and waives any objection based on forum non conveniens or any other objection
to venue therein); provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this paragraph (m) and shall not be deemed
to be a general submission to the jurisdiction of said Courts or in the State of
Delaware other than for such purposes. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
<PAGE>
5
(n) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
9. Termination. This Agreement shall terminate, and no party
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no effect upon the fifth day after the earlier of (1) the
expiration of the 90 day exercise period set forth in Section 4 hereof, (2) at
the Stockholders, option upon the valid termination of the Merger Agreement by
the Company pursuant to Section 10.3 thereof or (3) the date which is 180 days
after the date hereof.
10. Binding Agreement. All authority and rights herein
conferred or agreed to be conferred by the Stockholder shall survive the death
or incapacity of the Stockholder. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns.
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By /s/
Name:
Title:
BISON ACQUISITION CORP.
By /s/
Name:
Title:
MORGAN GRENFELL DEVELOPMENT
CAPITAL SYNDICATIONS LIMITED
By /s/
Name:
Title:
<PAGE>
6
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address of Stockholder Number of Shares and/or
Company Securities Owned
Morgan Grenfell Capital Development Common Stock: 0
Syndications Limited (Reg. No. 2490243) Options: 0
23 Great Winchester Street Warrants 5,000,000
London EC2P 2AX
England
Attention: Peter Cluff
STOCKHOLDERS AGREEMENT
AGREEMENT dated as of June 2, 1999, among UNITED PAN-EUROPE
COMMUNICATIONS NV, a corporation organized under the laws of The Netherlands
("Parent"), BISON ACQUISITION CORP., a Delaware corporation and an indirect
wholly owned subsidiary of Parent ("Sub"), and the other parties signatory
hereto (individually and collectively, the "Stockholder").
W I T N E S S E T H :
WHEREAS, prior to entering into this Agreement, Parent, Sub
and Eagle, Inc., a Delaware corporation (the "Company"), entered into an
Agreement and Plan of Merger (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"; capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement),
pursuant to which Sub will be merged with and into the Company (the "Merger");
WHEREAS, in furtherance of the Merger, Parent and the Company
desire that as soon as practicable (and not later than five business days) after
the execution and delivery of the Merger Agreement, Sub commence a cash tender
offer to purchase all outstanding shares of Company Common Stock (as defined in
Section 1)
including all of the Shares (as defined in Section 2); and
WHEREAS, as a condition to entering into the Merger Agreement,
Parent has required that all of the holders of the Company Preference Shares
agree to sell such Company Preference Shares to Parent; and
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent has required that the Stockholder agree, and the
Stockholder has agreed, to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Company Common Stock" shall mean at any time the
common stock, $.01 par value, of the Company.
(b) "Company Preference Shares" shall mean the Series A
Cumulative Preference Shares of the Company, par value $.01 per share and the
Series B Cumulative Preference Shares of the Company, par value $.01 per share.
"Existing Shares" shall mean the Company Preference Shares set
forth on Schedule I hereto.
(d) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated organization or
other entity.
(e) "Shares" shall mean the Existing Shares, together with
any other Company Preference Shares, in each case which such Company Preference
Shares were acquired by the Stockholder after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options, warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution or otherwise
2. Provisions Concerning Company Preference Shares. (a) The
Stockholder hereby agrees that during the period commencing on the date hereof
and continuing until the first to occur of (i) the Effective Time, (ii) the last
date the Stock Option is exercisable pursuant to Section 3 and (iii) the
termination date set forth in Section 8, at any meeting of the holders of
Company Preference Shares (or of the Company Common Stock, to the extent the
holders of Company Preference Shares are entitled to vote as with the holders of
Company Common Stock, whether as a single class or otherwise), however called,
or in connection with any written consent of the holders of Company Preference
Shares, the Stockholder shall vote (or cause to be voted) the Shares owned by
the Stockholder whether issued, heretofore owned or hereafter acquired, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; (ii) against any action or agreement that
would result in a breach in any respect of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement; and (iii) except as otherwise agreed to in writing in advance by
Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (C) (1) any change in a majority of the persons who constitute
<PAGE>
1
the board of directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's Certificate of
Incorporation or By-laws; (3) any other material change in the Company's
corporate structure or business; or (4) any other action involving the Company
or its subsidiaries which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
Merger and the transactions contemplated by this Agreement and the Merger
Agreement. The Stockholder shall not enter into any agreement or understanding
with any Person or entity the effect of which would be to violate the provisions
and agreements contained in this Section 2.
(b) The Stockholder hereby agrees to permit Parent and Sub to
publish and disclose in the Offer Documents and, if approval of the stockholders
of the Company is required under applicable law, the Proxy Statement (including
all documents and schedules filed with the Securities and Exchange Commission)
its identity and ownership of Company Preference Shares and the nature of its
commitments, arrangements and understandings under this Agreement.
3. Purchase Right. (a) The Stockholder hereby grants to Sub an
irrevocable option (the "Stock Option") to purchase the Shares at a purchase
price per Share (the "Purchase Price") equal to the liquidation preference of
such share plus all accrued and unpaid dividends thereon on the date of
purchase, payable in cash, until the termination date set forth in Section 8.
Until the termination date set forth in Section 8, if (i) the Offer is
terminated, abandoned or withdrawn by Parent or Sub (whether due to the failure
of any of the conditions thereto or otherwise), (ii) the Offer is consummated
but Sub has not accepted for payment and paid for the Shares or (iii) the Merger
Agreement is terminated in accordance with its terms, the Stock Option shall, in
any such case, become exercisable, in whole but not in part, upon the first to
occur of any such event and remain exercisable, in whole but not in part, until
the date which is 90 days after the date of the occurrence of such event, but
shall not be exercisable in each case unless: (x) all waiting periods under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), required for the purchase of Shares upon the exercise of the Stock Option
shall have expired or been waived and all other necessary governmental consents
required for Sub to purchase Shares upon the exercise of the Stock Option,
including, but not limited to, all necessary approvals of the Polish
Anti-Monopoly Commission, and (y) there shall not then be in effect any
preliminary or final injunction or other order issued by any court or
governmental, administrative or regulatory agency or authority prohibiting the
exercise of the Stock Option pursuant to this Agreement. Provided that this
Agreement has not been terminated, in the event that the Stock Option is not
exercisable because the circumstances described in clauses (x) and (y) have not
occurred, then the Stock Option shall be exercisable for the 90 day period
commencing on the date that the circumstances set forth in clauses (x) and (y)
have occurred. In the event that Parent wishes to exercise the Stock Option,
Parent shall send a written notice to the Stockholder identifying the place for
the closing of such purchase at least three business days prior to such closing.
(b) In the event that Sub shall have purchased Shares of
Company Common Stock in the Offer in an amount necessary to satisfy the Minimum
Condition in accordance with the terms of the Merger Agreement, Sub shall
thereafter purchase all of the Shares then held by the Stockholder no later than
the date which is the third business day after the date of such consummation at
a purchase price per Share equal to the liquidation preference of such share
plus all accrued and unpaid dividends thereon on the date of purchase.
4. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Schedule I hereto. On the date hereof, the Existing Shares set forth
opposite such Stockholder's name on Schedule I hereto constitute all of the
Shares owned beneficially or of record by such Stockholder. The Stockholder has
sole voting power and sole power to issue instructions with respect to the
matters set forth in Sections 2 and 3 hereof, sole power of disposition, sole
power of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Existing Shares set forth opposite Stockholder's name on
Schedule I hereto, with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the legal
capacity, power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by such Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting agreement,
stockholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which the Stockholder is trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
<PAGE>
2
(c) No Conflicts. Except for (i) filings and approvals under
the HSR Act or any other applicable Laws related to competition, antitrust,
monopoly or similar matters, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
performance by such Stockholder of its obligations hereunder and (B) none of the
execution and delivery of this Agreement by such Stockholder, the performance by
such Stockholder of its obligations hereunder or compliance by such Stockholder
with any of the provisions hereof shall (1) conflict with or result in any
breach of any applicable organizational documents applicable to such
Stockholder, or (2) violate any order, writ, injunction, decree, judgment,
order, statute, rule or regulation applicable to such Stockholder or any of such
Stockholder's properties or assets.
(d) No Finder's Fees. Except as disclosed in the Merger
Agreement, no broker, investment banker, financial advisor or other person is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of such Stockholder.
(e) No Encumbrances. The Stockholder's Shares and the
certificates representing such Shares are now, and at all times during the term
hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all liens, claims, security
interests, proxies, voting trusts or agreements, understandings or arrangements
or any other encumbrances whatsoever, except for any such encumbrances or
proxies arising hereunder. The transfer by the Stockholder of its Shares to Sub
in the Offer or hereunder shall pass to and unconditionally vest in Sub good and
valid title to all Shares, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever.
(f) Reliance by Parent. The Stockholder understands and
acknowledges that Parent is entering into, and causing Sub to enter into, the
Merger Agreement in reliance upon the Stockholder's execution and delivery of
this Agreement.
5. Covenants of the Stockholder. The Stockholder covenants and
agrees as follows:
(a) No Solicitation. Beginning on the date hereof and ending
on the last date the Stock Option is exercisable pursuant to Section 3 hereof,
the Stockholder shall not, in its capacity as such, directly or indirectly,
initiate, solicit (including by way of furnishing information), encourage or
respond to or take any other action knowingly to facilitate, any inquiries or
the making of any proposal by any person or entity (other than Parent or any
affiliate of Parent) with respect to the Company that constitutes or reasonably
may be expected to lead to, an Acquisition Proposal, or enter into or maintain
or continue discussions or negotiate with any person or entity in furtherance of
such inquiries or to obtain any Acquisition Proposal, or agree to or endorse any
Acquisition Proposal, or authorize or permit any Person or entity acting on
behalf of the Stockholder to do any of the foregoing. If the Stockholder
receives any inquiry or proposal regarding any Acquisition Proposal, the
Stockholder shall promptly inform Parent of that inquiry or proposal and the
details thereof.
(b) Restriction on Transfer, Proxies and Non-Interference.
Beginning on the date hereof and ending on the last date the Stock Option is
exercisable pursuant to Section 4 hereof, except as expressly contemplated by
this Agreement, the Stockholder shall not (i) directly or indirectly, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Shares or any interest therein; provided that the Stockholder may
transfer any Shares to any Affiliate of the Stockholder; provided, further that
such transferee shall have become a party to this Agreement (or an agreement
identical to this Agreement) and shall be deemed to make all representations and
warranties set forth in paragraph 4 hereof on the date of such transfer of
Shares; (ii) grant any proxies or powers of attorney (except for powers of
attorney granted to Affiliates of the Stockholder for purely administrative
purposes and which require the holder thereof to vote any and all Shares subject
to such powers in accordance with this Agreement), deposit any Shares into a
voting trust or enter into a voting agreement with respect to any Shares; or
(iii) take any action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing the Stockholder from performing the Stockholder's obligations under
this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby
irrevocably waives any rights of appraisal or rights to dissent from the Merger
that the Stockholder may have.
(d) Stop Transfer; Changes in Shares. The Stockholder agrees
with, and covenants to, Parent that the Stockholder shall not request that the
Company register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Stockholder's Shares, unless
<PAGE>
3
such transfer is made in compliance with this Agreement. In the event of a stock
dividend or distribution, or any change in the Company Preference Shares by
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged and
the Purchase Price shall be appropriately adjusted. The Stockholder shall be
entitled to receive any cash dividend paid by the Company during the term of
this Agreement until Shares are purchased in the Offer or hereunder.
6. Fiduciary Duties. Notwithstanding anything in this
Agreement to the contrary, the covenants and agreements set forth herein shall
not prevent of the Stockholder (or any of its designees) from taking any action,
subject to the applicable provisions of the Merger Agreement, while acting in
his or her (or such designee's) capacity as a director of the Company.
7. Miscellaneous.
(a) Further Assurances. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement; provided that no party shall be required to incur an unreasonable
expense in complying with this paragraph.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersedes all other prior agreements and understanding, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to the Stockholder's Shares and shall
be binding upon any person or entity to which legal or beneficial ownership of
such Shares shall pass, whether by operation of law or otherwise, including,
without limitation, such Stockholder's heirs, guardians, administrators or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations under this Agreement of the
transferor in the event such transferee does not perform such obligations.
(d) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party provided that Parent may assign, at its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent, although no such assignment shall relieve Parent of its obligations
hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
relevant parties hereto.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
If to the Stockholders: At the addresses set forth on
Schedule I hereto
copy to: Allen & Overy
10 East 50th Street
28th Floor
New York City, NY 10022
Attention: Managing Partner
Facsimile: +212 610 6399
If to Parent or Sub:
c/o United Pan-Europe Communications NV
Fred. Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attention: Anton H.E. van Voskuijlen
Facsimile: +31 20 778 9817
copy to: White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: William F. Wynne, Jr, Esq.
Facsimile: +212 354 8113
<PAGE>
4
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific performance of
such covenants and agreements and injunctive and other equitable relief in
addition to any other remedy to which it may be entitled, at law or in equity;
provided that no party shall be liable for any consequential or punitive damages
or damages for lost profits or lost opportunities, whether or not such damages,
profits or opportunities were foreseen or foreseeable by such party, except to
the extent such damages are the result of a breach of this Agreement arising out
of the gross negligence or willful misconduct of such party.
(i) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(k) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
(m) Jurisdiction. Each party hereby irrevocably submits to the
exclusive jurisdiction of the United States District Court or any court of the
State of Delaware, in each case, located in the City of Wilmington, Delaware in
any action, suit or proceeding arising in connection with this Agreement, and
agrees that any such action, suit or proceeding may be brought in such court
(and waives any objection based on forum non conveniens or any other objection
to venue therein); provided, however, that such consent to jurisdiction is
solely for the purpose referred to in this paragraph (m) and shall not be deemed
to be a general submission to the jurisdiction of said Courts or in the State of
Delaware other than for such purposes. EACH PARTY HERETO HEREBY WAIVES ANY RIGHT
TO A TRIAL BY JURY IN CONNECTION WITH ANY SUCH ACTION, SUIT OR PROCEEDING.
(n) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(o) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
8. Termination. This Agreement shall terminate, and no party
shall have any rights or obligations hereunder and this Agreement shall become
null and void and have no effect upon the fifth day after the earlier of (1) the
expiration of the 90 day exercise period set forth in Section 4 hereof, (2) at
the Stockholder's option upon the valid termination of the Merger Agreement by
the Company pursuant to Section 10.3 thereof or (3) the date which is 180 days
after the date hereof.
9. Binding Agreement. All authority and rights herein
conferred or agreed to be conferred by the Stockholder shall survive the death
or incapacity of the Stockholder. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, personal
representatives, successors and assigns.
<PAGE>
5
IN WITNESS WHEREOF, Parent, Sub and each Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
UNITED PAN-EUROPE
COMMUNICATIONS NV
By /s/
Name:
Title:
BISON ACQUISITION CORP.
By /s/
Name:
Title:
MORGAN GRENFELL DEVELOPMENT
CAPITAL SYNDICATIONS LIMITED
By: /s/
Name:
Title:
<PAGE>
6
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
Name and Address of Stockholder Number of Shares Owned
Morgan Grenfell Development Capital 45,000 Series A 12% Cumulative
Syndications Limited Preference Shares
23 Great Winchester Street
London EC2P 2AX
England
Attention: Peter Cluff
SHARE PURCHASE AGREEMENT
between
the Sellers
represented by
EQT Scandinavia Limited
and
United Pan-Europe Communications N.V.
the Purchaser
concerning the acquisition of
NBS Nordic Broadband Services AB
MANNHEIMER SWARTLING
<PAGE>
TABLE OF CONTENTS
1. DEFINITIONS...............................................................2
2. SALE OF THE SHARES AND THE INSTRUMENTS....................................8
3.CLOSING 10
4. WARRANTIES AND REPRESENTATIONS OF THE SELLERS............................14
5. COMPENSATION AND LIMITATION OF SELLERS'LIABILITY.........................26
6. SETTLEMENT OF CLAIMS AND ESCROW ARRANGEMENT..............................35
7. WARRANTIES AND REPRESENTATIONS OF THE PURCHASER..........................38
8. INDEMNITY 41
9. CLOSING CONDITIONS.......................................................41
10. CO-INVESTMENT RIGHT AND NON-COMPETITION.................................43
11. CONFIDENTIALITY.........................................................44
12. NON-SOLICITATION........................................................45
13. MISCELLANEOUS...........................................................45
14. NOTICES 45
15. ASSIGNMENT..............................................................47
16. EXPENSES 47
17. WAIVER 47
18. PUBLICITY 48
19. SELLERS'PRIMARY AND SECONDARY LIABILITY, ATTORNEY IN FACT AND
PROCESS AGENT...........................................................48
20. DISPUTES AND GOVERNING LAW..............................................49
LIST OF EXHIBITS
Exhibit A Powers of Attorney
Exhibit 1.A Convertible Debenture Holders
Exhibit 1.B Data Room Index
Exhibit 1.C Financial Statements
Exhibit 1.D Management
Exhibit 1.E Material Contracts
Exhibit 1.F The Note
Exhibit 1.G Shareholders
Exhibit 1.H Subsidiaries
Exhibit 1.I Warrant Holders
Exhibit 3.2 (b) Guarantees
Exhibit 3.3 (e) Intra Group Debt
Exhibit 4.1.3 Change of Control
Exhibit 4.1.5 Encumbrances
Exhibit 4.1.7 Rights to Shares
Exhibit 4.1.9 Registration Certificates and Articles of
Association
Exhibit 4.2.2 Liabilities outside the Ordinary Course of
Business
Exhibit 4.2.4 Contingent Liabilities
Exhibit 4.4 Insurance
Exhibit 4.5.1 Intellectual Property
Exhibit 4.6.3 Compliance with Law
Exhibit 4.7.1 Litigation
Exhibit 4.8.5 Collective Bargaining Agreements
Exhibit 4.8.6 Pensions
Exhibit 4.8.7 Compensation to Management
Exhibit 4.9.2 Assets and Property
Exhibit 4.11.2 Intra Group Arrangements
Exhibit 4.12 Loans and Financial Facilities
Exhibit 4.13 Year 2000 Compliance
i
<PAGE>
THIS AGREEMENT is made and entered into as of 9 July 1999
by and between
the Sellers, represented by EQT Scandinavia Limited, a company duly incorporated
and organised under the laws of Guernsey, having its principal office in
Guernsey, the Channel Islands (hereinafter referred to as "EQT"), as set forth
in Exhibit A.
and
United Pan-Europe Communications N.V., a company duly incorporated and organised
under the laws of the Netherlands, having its principal office in Amsterdam,
(hereinafter referred to as the "Purchaser").
WITNESSETH
WHEREAS the Shareholders together hold all of the twenty-two million seven
hundred thousand (22,700,000) issued and outstanding shares, divided into
twenty-two million one hundred and fifteen thousand nine hundred and
eighty-three (22,115,983) class A shares and five hundred and eighty-four
thousand seventeen (584,017) class B shares, with a par value of SEK 1.00 per
share, in NBS Nordic Broadband Services AB, Reg. no. 556536-1598, a company duly
incorporated and organised under the laws of Sweden, having its principal office
in Stockholm (hereinafter referred to as the "Company");
WHEREAS the Convertible Debenture Holders hold the Convertible Debentures, as
defined, and the Warrant Holders hold the Warrants, as defined, and whereas
StjarnTVnatet AB, Reg. no. 556497-8210, a company duly incorporated and
organised under the laws of Sweden and a wholly-owned subsidiary of the Company,
for the purpose of transferring them to future managers and employees of the
Group Members, holds a number of subordinated convertible debt instruments and
debt instruments with detachable warrants, representing the remaining part of
such instruments issued by the Company;
WHEREAS the Shareholders, considering an initial public offering of all class A
shares in the Company, have drawn up the Management Presentation and the
Preliminary Offering Circular, as defined, concerning the Company, both of which
have been provided to the Purchaser; and
WHEREAS the Sellers have offered to sell their respective shares, convertible
debt instruments and warrants in the Company to the Purchaser and the Purchaser
desires to purchase the Sellers' respective shares, convertible debt instruments
and warrants.
NOW THEREFORE
In consideration of the mutual covenants and undertakings set forth herein and
in the Exhibits hereto, the parties agree as follows:
1. DEFINITIONS
In this Agreement, the following terms and expressions shall have the following
meanings:
"AEX" shall mean AEX Effectenbeurs N.V. of Amsterdam Exchanges N.V., the
Amsterdam stock exchange.
"Agreement" shall mean this Share Purchase Agreement by and between the
Sellers and the Purchaser including all Exhibits hereto, each of
which constitutes an integral part of this Agreement, as it may be
amended from time to time.
"Agreement Date" shall mean the date on which this Agreement is signed by the
Sellers, represented by EQT, and the Purchaser.
"Balance Sheet Date" shall mean December 31, 1998.
"Business Day" shall mean any day when banks are open for general banking
business in Stockholm and in Amsterdam.
"Closing" shall mean the completion of the sale and purchase of the Shares
and the Instruments in accordance with the provisions of this
Agreement.
"Closing Date" shall mean 30 July 1999, such other later date as
specifically agreed between the parties or three (3) days after
the day that UPC has raised sufficient financial means to effect
the Closing, provided that the Closing Date shall occur on 30
September 1999 at the latest.
"Connected Home" shall mean each household or enterprise connected to any of
the networks for cable based services of StjarnTVnatet AB or
Stockholms Kabel TV AB.
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"Convertible Debentures" shall mean the subordinated convertible debt
instruments held by the Convertible Debenture Holders at the
Closing, giving a right to obtain a total of two hundred and
ninety thousand five hundred (290,500) class A shares in the
Company. The Convertible Debentures together with the convertible
debt instruments held by StjarnTVnatet AB equal 100 per cent of
the issued and outstanding convertible debt instruments in the
Company.
"Convertible Debenture Holders" shall mean the holders of the Convertible
Debentures, as listed in Exhibit 1.A.
"Data Room" shall mean a data room containing information on the Company
and its Subsidiaries, as listed in the Data Room Index, which room
was available to the Purchaser and its advisers during the period
of 22 May through 26 May 1999 at the offices of Mannheimer
Swartling Advokatbyra in Stockholm, Sweden.
"Data Room Index" shall mean the list of documents available in the Data
Room, attached hereto as Exhibit 1.B.
"Escrow Account" shall have the meaning given in Section 2.4 (ii).
"Escrow Agent" shall mean the third party appointed by EQT and the
Purchaser prior to the Closing to hold the Escrow Account.
"Escrow Agreement" shall have the meaning given in Section 2.4 (ii).
"Exhibits" shall mean the attachments to this Agreement designated as such
and incorporated into this Agreement by reference.
"Financial Statements" shall mean the consolidated audited balance sheet and
profit and loss account of the Company and its subsidiaries as of
the Balance Sheet Date, attached hereto as Exhibit 1.C.
"GAAP" shall mean the generally accepted accounting principles applied in
Sweden.
"Group" shall mean the Company and the Subsidiaries collectively.
"Group Member" shall mean the Company and each of the Subsidiaries
collectively and/or individually, as the case may be.
"Instruments" shall mean the Warrants and Convertible Debentures collectively or
any Warrant or Convertible Debenture individually, as the case may
be. For the avoidance of any doubt, the Instruments shall not
include the subordinated convertible debt instruments and the debt
instruments with detachable warrants held by StjarnTVnatet AB as
of the Closing.
"Intellectual Property" shall mean patents, trademarks, registered designs,
applications for any of the foregoing, copyrights and registerable
business names and any similar rights in any country and all
rights under licences and consents in relation to any of the
foregoing.
"Issuer" shall mean United Pan-Europe Communications N.V., which company
will issue the Note to EQT on the Closing Date.
"Know-How" shall mean inventions, customer lists and other information
related to customers and any other information which is kept
confidential by any Group Member.
"Lock-up Period" shall mean the period of six (6) months following
Conversion (as defined in the Note), during which EQT is not
entitled to dispose of the LV Shares acquired through the
Conversion.
"LV Shares" shall mean the common low-voting shares with a nominal
value of EUR 0.02 in the outstanding share capital of the Issuer.
"Management" shall mean the individuals listed in Exhibit 1.D.
"Management Presentation" shall mean the management presentation of the
Company as prepared by the management of StjarnTVnatet AB, dated
28 April 1999, a copy of which the Purchaser has been provided
with prior to the signing of this Agreement.
"Material Contracts" shall mean the agreements listed in Exhibit 1.E to
which a Group Member is a party.
"Net Debt" shall mean all consolidated interest-bearing debt less all
consolidated cash and cash equivalents of the Company and the
Subsidiaries on 30 July 1999.
"Note" shall mean the USD 100 million Unsecured Subordinated Convertible
Loan Note to be issued by the Issuer to EQT as part payment of the
Purchase Price, in the form attached hereto as Exhibit 1.F.
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"Preliminary Offering Circular" shall mean the preliminary offering circular
prepared by the board of directors of the Company, dated 27 May
1999, for the purpose of an initial public offering of the
Company's class A shares, a copy of which the Purchaser has been
provided with prior to the signing of this Agreement.
"Property Owner" shall mean each owner of a building to which StjarnTVnatet
AB or Stockholms Kabel TV AB provides cable based services.
"Purchase Price" shall have the meaning given in Section 2.4.
"Sellers" shall mean the Shareholders, the Warrant Holders and the
Convertible Debenture Holders collectively.
"Shareholders" shall mean the holders of the Shares, as listed in Exhibit 1.G.
"Shares" shall mean the twenty-two million seven hundred thousand
(22,700,000) shares in the Company, divided into twenty-two
million one hundred and fifteen thousand nine hundred and
eighty-three (22,115,983) class A shares and five hundred and
eighty-four thousand seventeen (584,017) class B shares with a par
value of SEK 1.00 per share, held by the Shareholders and
equalling 100 per cent of the total issued and outstanding shares
in the Company as of the Closing Date.
"Subscriber" shall mean a customer of StjarnTVnatet AB or Stockholms Kabel TV
AB, who is authorised to receive cable-TV services other than
"must carry"-channels.
"Subsidiary" shall mean each of the companies wholly owned, directly or
indirectly, by the Company as listed in Exhibit 1.H.
"Tax" shall mean income tax, corporate tax, capital gains tax,
securities transfer tax, value added tax, social securities fees,
salary tax, sales tax and capital duty tax and all other forms of
income, employment, capital and sales or other tax and all
penalties, charges and interest relating to any of the foregoing.
"Warrants" shall mean the debt instruments with detachable warrants held by
the Warrant Holders at the Closing, giving a right to subscribe
for a total of three million five hundred and forty-one thousand
(3,541,000) class A shares in the Company, divided into Class I
warrants representing one million six hundred and fifty thousand
five hundred (1,650,500) class A shares and Class II warrants
representing one million eight hundred and ninety thousand five
hundred (1,890,500) class A shares in the Company. The Warrants
together with the debt instruments with detachable warrants held
by StjarnTVnatet AB equal 100 per cent of the issued and
outstanding warrants in the Company.
"Warrant Holders" shall mean the holders of the Warrants, as listed in Exhibit
1.I.
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SALE OF THE SHARES and the instruments
2.1 Upon the terms and subject to the conditions set forth in this
Agreement, each Shareholder hereby sells the number of Shares set
forth opposite its name in Exhibit 1.G hereto, free and clear of
all liens, claims, charges or encumbrances of any kind, together
with all rights attached and accruing thereto to the Purchaser and
the Purchaser agrees to purchase the Shares from the Shareholders
on the Closing Date.
2.2 Upon the terms and subject to the conditions set forth in this
Agreement, each Warrant Holder hereby sells the number of Warrants
set forth opposite its name in Exhibit 1.I hereto, free and clear
of all liens, claims, charges or encumbrances of any kind,
together with all rights attached and accruing thereto to the
Purchaser and the Purchaser agrees to purchase the Warrants from
the Warrant Holders on the Closing Date.
2.3 Upon the terms and subject to the conditions set forth in this
Agreement, each Convertible Debenture Holder hereby sells the
number of Convertible Debentures set forth opposite its name in
Exhibit 1.A hereto, free and clear of all liens, claims, charges
or encumbrances of any kind, together with all rights attached and
accruing thereto to the Purchaser and the Purchaser agrees to
purchase the Convertible Debentures from the Convertible Debenture
Holders on the Closing Date.
2.4 In consideration for the Shares and the Instruments, the Purchaser
shall pay a total of USD 447 million less the Net Debt (the
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"Purchase Price"), of which amount USD 347 million less the Net
Debt shall be paid in cash and the remainder in the form of the
Note as follows:
(i) The amount payable in cash shall be paid by the
Purchaser before 10.00 a.m. Stockholm time on the
Closing Date by wire transfer of immediately available
funds to a bank account designated by EQT; and
(ii) The Note in the amount of USD 100 million issued to EQT
shall on the Closing Date be delivered by the Issuer to
a separate interest earning account in the name of EQT
(the "Escrow Account"), to be held by the Escrow Agent
pursuant to the escrow agreement to be entered into by
the Sellers, represented by EQT, and the Purchaser
prior to the Closing, which agreement shall implement
the terms and conditions of Section 6 (the "Escrow
Agreement").
2.5 In order to determine the amount payable on the Closing Date in
cash in accordance with Section 2.4 (ii), the amount of USD 347
million shall be reduced by the amount of the Net Debt. For
purposes of determining the value of the Net Debt in USD, the
buying rate of USD for SEK of SE-Banken at 11 a.m. on 30 July
1999 shall be applied. If the Net Debt and/or the buying rate are
not known at the Closing, then the latest available information
shall be applied and an adjustment made as soon as the required
information is available.
2.6 Interest at the annual rate of 8 per cent, calculated on the basis
of a year of 365 days, shall be paid on the Purchase Price from 30
July 1999 or, provided that the Closing Date is not postponed due
to the acts or omissions, including the lack of financing, of the
Purchaser, from such later date as mutually agreed between the
parties to be the new Closing Date, if the Closing is delayed
beyond such date due to the acts or omissions, including the lack
of financing, of the Purchaser. Any interest due hereunder, shall
at the Closing be paid to the Sellers by means of an unsecured
subordinated convertible loan note issued by the Issuer to EQT on
the same terms and conditions, except as to the amount, as the
Note. Provided that the Closing is not postponed beyond 30
September 1999, interest on the Purchase Price according to the
above shall be the Sellers sole remedy if the Closing is postponed
due to the acts or omissions, including the lack of financing, of
the Purchaser.
3. CLOSING
3.1 Closing shall take place on the Closing Date at the offices of
Mannheimer Swartling Advokatbyra, Stockholm.
3.2 At the Closing the Purchaser shall:
(a) against delivery by the Sellers of the documents set
forth in Section 3.3, pay to the Sellers the amount
payable in cash in accordance with Section 2.4 (i) and
deliver the Note issued by the Issuer to the Escrow
Agent pursuant to Section 2.4 (ii);
(b) deliver to EQT proof that the guarantees given by EQT
for the benefit of the Company or any of the
Subsidiaries, as listed in Exhibit 3.2 (b), have been
released and settled effective as of the Closing Date
in accordance with Section 9.2.2. Any and all costs,
charges or fees to obtain such release and settlement
shall be borne by the Purchaser;
(c) deliver to EQT the legal opinion on the Note referred to in Section 9.2.3.
(d) deliver to EQT the legal opinion on the due
authorisation of the Purchaser referred to in Section
9.2.4.
(e) deliver to the Sellers all certificates and other
documents required to be delivered by the Purchaser
under this Agreement and such further documents as the
Sellers may reasonably require in connection with the
Closing, provided that the Purchaser has been notified
of such a request not later than 10 days before the
Closing Date; and
immediately following the Closing, cause an extra ordinary general
shareholder's meeting of the Company and the Subsidiaries to be
held in order to appoint new directors of the Board of Directors
of the Company and the Subsidiaries in replacement of those
appointed by the Sellers who resign at the Closing.
3.3 At the Closing the Sellers shall:
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(a) instruct the account operating institutions, which
operate Sellers' securities accounts (Sw.
avstamningskonton) on which the Shares and the
Instruments are registered, to cause the Shares and the
Instruments to be transferred to the Purchaser's
securities account;
(b) deliver to the Purchaser a copy of the share register
(Sw: aktieboken) of the Company;
(c) deliver to the Purchaser all available certificates of
floating charges on the assets of any Group Member;
(d) have caused all members of the Board of Directors of
the Company and the Subsidiaries (including deputies),
which have been nominated by the Shareholders, to
deliver resignation letters at the Closing pursuant to
which they resign as members of the Board of Directors
and waive all claims in relation to the Company other
than ordinary compensation for services rendered to
that date;
(e) deliver to the Purchaser evidence that all intra group
debt between the Sellers or EQT, as the case may be, on
the one hand and the Company or any of the Subsidiaries
on the other, as listed in Exhibit 3.3 (e), has been
released and settled effective as of the Closing Date.
Any and all costs, charges or fees to obtain such
release and settlement shall be borne by the Sellers;
(f) deliver to the Purchaser a letter signed by Investor AB
regarding co-investment and non-competition; and
(g) deliver to the Purchaser all certificates and other
documents required to be delivered by the Sellers under
this Agreement and such further documents as the
Purchaser may reasonably require in connection with the
Closing, provided that EQT has been notified of such a
request not later than 10 days before the Closing Date.
3.4 The Purchaser shall procure that the retiring board members and
deputies as well as the managing directors of each of the Group
Members shall be discharged from liability at the respective
following Ordinary General Shareholders' Meeting, provided that
the statutory auditor(s) of the respective Group Member shall so
recommend.
No legal action shall be taken against any of the retiring board
members, deputies or managing directors on account of any act or
omission made or omitted by any of them during their term of
office, save for acts or omissions made by any of them wilfully or
through negligence, which acts or omissions have caused a Group
Member to suffer damage.
3.5 If Closing has not occurred by 30 September 1999, due to the non-fulfilment
of any of the conditions described in Section 9 below, this Agreement
shall, upon the expiry of said period, and provided that the parties do not
agree otherwise in writing, terminate and become null and void without any
party having any liability towards the other, provided, however, that if
the Closing has not duly occurred by reason of the Purchaser's breach of
any of its obligations hereunder or the Sellers' breach of any of their
obligations hereunder, the non-defaulting party may terminate the Agreement
and such termination shall be without prejudice to the rights of the
non-defaulting party in its discretion to obtain any other available
remedies, such as damages and specific performance.
3.6 If Closing does not occur according to the above, each party will:
(i) redeliver all documents, work papers, data files and
other materials of any other party relating to the
transactions contemplated hereby, whether so obtained
before or after the execution of this Agreement, to the
party furnishing the same; and
(ii) destroy all documents, work papers, data files and
other materials developed by its auditors, advisers,
agents and employees in connection with the
transactions contemplated hereby which embody
proprietary information or trade secrets furnished by
any party hereto or deliver such documents, work papers
and other materials to the party furnishing the
information.
All information provided to any party hereto with respect to the
business of the other party or any of its subsidiaries, has been
provided solely for the purpose of consummating the transaction
contemplated herein and, in the event Closing does not occur, such
information shall not at any time be used for any other purpose
whatsoever and shall not be disclosed by such party to any third
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person to the detriment of the party furnishing such information
or any of its subsidiaries or affiliates.
4. WARRANTIES AND REPRESENTATIONS OF THE SELLERS
Each of the Sellers hereby represents and warrants to the
Purchaser on the date hereof and on the Closing Date that:
4.1 Corporate
4.1.1 The Purchaser will acquire good and legal title to the Shares and
the Instruments subject to no liens, encumbrances or rights of
third parties of any kind.
4.1.2 EQT is a corporation duly organised and validly existing under the
laws of Guernsey. This Agreement has been duly authorised and
approved by all required corporate action of EQT. EQT has, and
will have, the corporate power and authority to make, execute,
deliver and perform all of the Sellers' obligations under this
Agreement on its own behalf and on behalf of each other Seller.
This Agreement constitutes and will constitute a legal, valid and
binding obligation of EQT and the other Sellers, enforceable
against them in accordance with its terms.
4.1.3 The execution of, and the performance by the Sellers of their
obligations under this Agreement (i) will comply with all
relevant laws and regulations, (ii) will not require, conflict
with or result in a breach of any registration, licence, consent
or approval of any governmental or regulatory authority or third
party, (iii) will not conflict with or result in a breach of any
provisions of any agreement, instrument, judgement or order to
which the Company or any of the Subsidiaries is a party, or by
which any Group Member is bound, or of their respective Articles
of Associations or equivalent constituent documents, and (iv)
except as set forth in Exhibit 4.1.3, will not entitle the other
party to any Material Contract, by which any Group Member is
bound, to terminate such agreement.
4.1.4 The Shares constitute the entire issued capital stock of the
Company. The Shares are legally and validly issued and fully paid
and not subject to any pre-emptive rights.
4.1.5 Except as set forth in Exhibit 4.1.5, the Company owns the entire
issued capital stock of each of the Subsidiaries, directly or
indirectly, free and clear of any lien, encumbrance or other
restriction whatsoever.
4.1.6 None of the Company and the Subsidiaries owns, directly or
indirectly, any share capital or other equity or ownership or
proprietary interest in any corporation, partnership, association,
joint venture or other entity, except in another Group Member.
4.1.7 Except for the Instruments and as set forth in Exhibit 4.1.7,
there are no outstanding subscriptions, options or similar rights
relating to the Shares in the Company or the shares in the
Subsidiaries and no securities giving a right to conversion into,
or any agreement or arrangement which accords to any person the
right to acquire, shares in any of the Group Members.
4.1.8 Each of the Group Members is duly incorporated and validly
existing under their respective laws of jurisdiction of domicile
and each has the corporate power and all necessary licences,
permits and authorisations to own its property and to carry on its
business as presently conducted.
4.1.9 The Registration Certificates and Articles of Association included
in Exhibit 4.1.9 hereto reflect the present status of the Group
Members.
4.1.10 The shareholder registers and all minutes from shareholders'
meetings and board meetings of each of the Group Members have been
properly kept and are in the possession of each respective company
and contain accurate records in all respects of the matters which
should by law be addressed in such shareholder registers and
minutes.
4.1.11 The Group Members are the only entities, which directly,
indirectly or through subcontractors conduct the business of the
Group as described in the Preliminary Offering Circular.
4.1.12 Since 1 January 1995, no Group Member has transferred shares,
other interests in or the entire or a substantial part of the
assets of any subsidiary previously or still owned by such company
under which transactions a Group Member as of the Closing Date is
bound by any representations or warranties with respect to such
shares, interests or assets against a third party.
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4.2 Financial
4.2.1 The Financial Statements have been made in conformity with
applicable law and GAAP for each Group Member. The Financial
Statements state all liabilities which are required to be stated
by applicable law and GAAP.
4.2.2 Except as set forth in the Management Presentation, in the
Preliminary Offering Circular and in Exhibit 4.2.2, the Group
Members' activities during the period from the Balance Sheet Date
to the Agreement Date have been conducted, and from the Agreement
Date to the Closing Date will be conducted, in accordance with the
ordinary course of business with a view to maintaining each of
their respective businesses as a going concern and there has not
occurred or arisen since the Balance Sheet Date, or will not occur
until the Closing Date, with respect to any of the Group Members:
(i) any material adverse change in the operation of its business;
(ii) any material obligations, commitments or liabilities, liquidated
or unliquidated, contingent or otherwise, whether for Tax or
otherwise, except obligations, commitments and liabilities
arising in the ordinary course of business;
(iii) any change of accounting methods, principles or practices;
(iv) any increase in the rates of compensation (including bonuses)
payable or to become payable to any officer, employee or
consultant other than increases in the ordinary course of
business, or acceleration in the rate at which any such
compensation accrues;
(v) any payment of management fees;
(vi) any declaration or payment of dividends or interim dividends or
any other payment or distribution of any property, including any
sales at an undervalue and any purchases at an overvalue in
relation to any of the respective Group Members' shareholders,
other than as reflected in the Financial Statements; or
(vii) any transactions other than in the ordinary course of business
and on arm's length conditions; and
(viii) no Group Member has agreed or arranged to do any of the foregoing.
For purposes of the foregoing, "material" shall mean a financial
effect of SEK five (5) million or more.
4.2.3 The accounting books and records of each of the Group Members have
been maintained in accordance with applicable laws and GAAP and
are up-to-date.
4.2.4 Except as set forth in Exhibit 4.2.4, no Group Member will have
any material contingent liabilities (Sw. villkorad forpliktelse)
of any kind as of the Closing date towards a party other than
another Group Member, including but not limited to any conditional
shareholders' contributions.
4.2.5 To the reasonable commercial knowledge of the Sellers there is no
fact or event relating to the potential loss of the benefit of any
relationship with any suppliers or customers which loss would have
a material adverse effect on the business of the Company or any
Subsidiary. For purposes hereof "material adverse effect" shall
mean a loss of no less than SEK 5 million.
4.2.6 As of 1 June 1999, the number of Connected Homes was not less than
240,000 and there has not as of the Agreement Date been, or will
not prior to the Closing Date be, any material adverse change in
that number. For purposes of the foregoing, "material adverse
change" shall mean that the actual number of Connected Homes is
inferior to 240,000 by more than two (2) per cent. As of 30 June
1999, the number of Subscribers was 137,000.
4.3
Tax and other charges
4.3.1 All necessary Tax and other returns and reports required to be
filed prior to the Closing Date by the Group Members are complete
and accurate and have been properly filed with appropriate
authorities.
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4.3.2 All Tax assessed or due by any of the Group Members on or before
the Closing Date has, where applicable, been fully paid or an
adequate reserve or provision therefore has been set up in the
books. There have not since 1 January 1993 been any circumstances,
and there will prior to Closing be no circumstances, which will
result in the imposition of any additional Tax on any Group
Member, including without limitation any liability for social
security charges resulting from the issuance of the Convertible
Debentures and the Warrants to employees.
4.3.3 Except as provided for in the Financial Statements and with the
reservation set forth in Exhibit 4.3.2, all amounts due and
payable by the Group Members as of the Closing for the purpose of
social security, insurance, pensions and the like have been duly
and punctually paid and all amounts required to be deducted from
monies paid to its employees for the purpose of social security,
insurance, pensions and the like have been deducted and have been
accounted for to the appropriate authority or person.
4.3.4 As of the Agreement Date, there are no Tax audits pending with respect to
any Group Member.
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4.4 Insurances
The assets of the Group Members are insured under the insurance
policies listed in Exhibit 4.4. The insurance coverage pursuant to
said policies will be maintained until the Closing Date.
4.5 Intellectual Property and Know-How
4.5.1 All Intellectual Property which is currently used in the business
of the Group Members, as listed in Exhibit 4.5.1, is owned by or
licensed to the Group Members and is not subject to any liens or
encumbrances.
4.5.2 No Group Member has as of the Agreement Date received any notice
of any infringement by any third party of any Intellectual
Property owned by or licensed to any Group Member.
4.5.3 The registrations of all registered Intellectual Property are in
force and the renewal fees for all such registrations have
heretofore been paid.
4.5.4 To the best of Sellers' knowledge, the use by the Group Members of
the Intellectual Property and Know-How and the conduct of their
business until Closing shall not have constituted an infringement
of the intellectual property rights of third parties.
4.5.5 No Group Member is in breach of any licence or other agreement
relating to Intellectual Property or Know-How.
4.6
Compliance
4.6.1 All necessary licences, consents, permits and authorisations have
been obtained by the Group Members to carry on their businesses in
the places and in the manner in which such businesses are now
conducted and all such licences, consents, permits and
authorisations are valid and subsisting and have been complied
with in all material respects.
4.6.2 No circumstances have as of the Agreement Date occurred which
result in or may result in any material limitation or restriction
in the conduct of the present activities of the Group, with
respect to licences, consents, permits or authorisations obtained.
4.6.3 Each Group Member has, with the reservations set forth in Exhibit
4.6.3, complied in all material respects with applicable laws in
the conduct of the business of such Group Member.
4.7 Litigation and investigations
4.7.1 Except as disclosed in Exhibit 4.7.1, the Group Members are not as
of the Agreement Date involved in, or to the best of Sellers'
knowledge, under the threat of any litigation, arbitration
proceedings in any court or tribunal, Tax proceedings or
administrative proceedings or any other actions, suits, claims,
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proceedings or investigations affecting their businesses or
assets, and Sellers are not aware of any claims or circumstances
likely to give rise to the same.
4.7.2 To the best of the Sellers' knowledge, no investigation or inquiry
is as of the Agreement Date being or has been conducted since and
including 1996 by any governmental, fiscal, regulatory or other
body in respect of the affairs of any Group Member, and no such
investigation is pending, threatened or expected.
4.8 Employees
4.8.1 Each Group Member employs, or has by other means contracted, all
persons necessary for it to carry on its business as conducted on
the Agreement Date.
4.8.2 There is as of the Agreement Date no dispute between any of the
Group Members and any employee or former employee, trade union,
local or national, pending or, to the best of Sellers' knowledge,
threatened.
4.8.3 The consummation of the transaction contemplated by this Agreement
will not (i) entitle any employee of any Group Member to severance
pay, unemployment compensation or any other payment or (ii)
accelerate the time of payment or vesting of, or increase the
amount of compensation due to any such employee, or (iii) entitle
any employee to terminate or shorten his or her employment.
4.8.4 All employment contracts of the Group Members in respect of their
ordinary employees contain terms and conditions normal for the
particular line of business.
4.8.5 All collective bargaining agreements in force on the Agreement
Date in respect of any of the Group Members are listed in Exhibit
4.8.5.
4.8.6 Except as set forth in Exhibit 4.8.6, no Group Member is liable to
pay any pension to any present or former employee, except the
payment of premiums for pension insurance under the ITP Plan.
4.8.7 Except as set forth in Exhibit 4.8.7, neither the Company nor any
of the Subsidiaries has any contractual or other obligation to pay
a pension, a payment in lieu of notice or any compensation or
damages, whether to any person or trade unions, as a consequence
of labour disputes or for loss of office to any President,
Director or employee or former President, Director or employee or
to any other person.
4.8.8 As of signing, no management member of any Group Member has given
notice of termination of his/her employment.
4.9 Assets and property
4.9.1 All assets, properties and rights, whether or not recorded in the
books of the Group Members, that are presently owned by the Group
Members and being used in the business of the Group Members, are
included in the transfer to the Purchaser under the terms of this
Agreement.
4.9.2 Except as set forth in Exhibit 4.9.2, each Group Member is the
owner of each of such assets referred to in Section 4.9.1,
including the assets that are reflected in the Financial
Statements, plus any assets acquired since the Balance Sheet Date
and less any assets disposed of since that date in the normal
course of business, and has good and marketable title to all of
such assets, free and clear of any lien or other encumbrance
(including retention of title clauses) in respect of assets
acquired in its ordinary course of business. All floating charges
on the assets of the Group Members are listed in Exhibit 4.9.2
and no such floating charge is currently pledged.
4.9.3 Each Group Member owns or leases all assets necessary for it to
carry on its business as presently conducted and such assets are
in good working order, fully maintained and serviced on a timely
basis, ordinary wear and tear excepted.
4.9.4 No Group Member is subject to any obligation to purchase any Euroboxes.
4.10 Agreements
4.10.1 The Group Members are not bound by any agreement or undertaking
which is not made in connection with its business or which has
been made on non-commercial terms. The Group Members have
fulfilled all material obligations under such agreements.
4.10.2 There are no other material contracts than those listed in Exhibit
1.E. The Material Contracts are in full force and effect and the
Group Members have, to the best of Sellers' knowledge, fulfilled
all material obligations under such agreements. No Group Member
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has entered into any agreement whereby such Group Member has
granted any third party a licence or other exclusive right to
provide portal or telephony services. For purposes hereof,
"material contract" shall mean all agreements with an expenditure
of more than SEK one (1) million during a period of twelve (12)
consecutive months.
4.11 Relationship with the Sellers
4.11.1 As of Closing, no Seller shall have any claim of any kind against
any Group Member except (as the case may be) for any agreed
remuneration in his or her capacity of employee or director in the
Group Member, and vice versa.
4.11.2 Except as set forth in Exhibit 4.11.2 and except for such ordinary
arrangements, liabilities and obligations, which have been made or
incurred by any of the Sellers in their capacity as employee or
director of any Group Member, there exist no agreements or
arrangements between any Group Member on the one hand and the
Sellers on the other hand, no liabilities and obligations
(contingent or otherwise) owed by any Group Member in respect of
the Sellers and no guarantees or similar commitments issued by any
Group Member for obligations owed by any of the Sellers.
4.11.3 No payments of any kind, including but not limited to dividends
and management charges, have been made by any Group Member to the
Sellers after the Balance Sheet Date, or will be made prior to the
Closing Date, save for payments under contracts or arrangements
made on normal commercial conditions in the ordinary course and
thus on arm's length basis.
4.12 Loans and other financial facilities
Except as set forth in Exhibit 4.12, as of the Closing there is no
event which will give, or after notice or lapse of time (or both)
would give, any third party the right to call for repayment from
any Group Member prior to normal maturity of any loan or other
financial instrument.
4.13 Year 2000 Compliance
The Group Members have, after due investigation and inquiry, used
all reasonable commercial efforts to ensure Year 2000 Compliance
(as defined below) of all internal computer systems, computer
software or technology that are material to the business, finances
or operations of the Company and the Subsidiaries (collectively,
"Material Systems"), except in the functional areas described in
Exhibit 4.13. Year 2000 Compliance shall mean that the Material
Systems are (i) able to receive, record, store, process,
calculate, manipulate and output dates from and after 4 September
1999, time periods which include the Relevant Dates and
information that is dependent on or relates to such dates or time
periods, in the same manner and with the same accuracy,
functionality, data integrity and performance as when dates and
time periods prior to 4 September 1999 are involved, and (ii) able
to store and output date information in a manner which is
unambiguous as to century. The "Relevant Dates" shall mean 4 and 9
September and 31 December 1999, 1 January, 28 and 29 February, 1
March, 31 December 2000 and 1 January 2001.
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5. COMPENSATION AND LIMITATION OF SELLERS' LIABILITY
5.1 Subject to the provisions of this Section 5, the Sellers shall
compensate the Purchaser on a USD for USD basis for any losses or
costs incurred or suffered as a consequence of misrepresentation
or breach of any of the Sellers' representations and warranties in
this Agreement, including without limitation reasonable attorney's
fees, costs of investigation and amounts paid in settlement of
third party claims. The Purchaser's sole remedy in the event of
any misrepresentation or breach of warranty or representation
shall be reduction of the Purchase Price.
5.2 Any warranty or representation qualified by the expression "to the
best of Sellers' knowledge", "Sellers are not aware" or any
similar expression shall mean that such warranty or representation
is made after due and careful enquiry with the Management and
shall be deemed to cover such knowledge as those officers of
Sellers who have the task to prepare the transaction regulated by
this Agreement had at the date of the execution of this Agreement.
5.3 Subject to the above overriding limitations the Purchaser shall in
no event be entitled to be compensated by an amount exceeding:
(i) 25 per cent of the Purchase Price for claims raised
during the twelve (12) month period immediately
following the Closing Date, provided that the market
value of EQT's LV Shares, where applicable, is not less
than 25 per cent of the Purchase Price (the "Initial
Cap");
(ii) an amount corresponding to the market value of EQT's LV
Shares, where applicable, for claims raised during the
twelve (12) month period immediately following the
Closing Date, if the market value of EQT's LV Shares is
less than 25 per cent but more than 18.75 per cent of
the Purchase Price (the "First Step-Down Cap");
(iii) 18.75 per cent of the Purchase Price for claims raised
during the twelve (12) month period immediately
following the Closing Date, if the market value of
EQT's LV Shares, where applicable, is less than 18.75
per cent of the Purchase Price (the "Second Step-Down
Cap");
(iv) 6.25 per cent of the Purchase Price for claims raised
after the expiry of the twelve (12) month period
immediately following the Closing Date, whether or not
raised during the Lock-up Period (the "Final Cap").
For purposes of this Section 5.3, the market value of EQT's LV
Shares shall be calculated as the average of the closing share
price of those shares as listed on the AEX or any other foreign
publicly regulated major stock exchange during a ten (10) Business
Day period commencing five (5) Business Days prior to the final
day of the Lock-up Period, multiplied by the number of LV Shares
corresponding to complete conversion of the initial amount of the
Note, according to its terms and conditions. For purposes of
determining the market value of the LV Shares in USD, the buying
rate of USD for EUR of a major, recognised commercial bank in
Amsterdam on the final day of the Lock-up Period shall be applied.
The limitations in this Section 5.3 shall not apply to breach of
the warranties and representations in Sections 4.1.1, 4.1.2,
4.1.4, 4.1.5 and 4.1.7, for which the limit shall be the Purchase
Price. For the avoidance of any doubt, it is explicitly agreed
that the Sellers maximum aggregate liability under this Agreement
is limited to an amount equal to the Purchase Price.
5.4 For the avoidance of any doubt, it is explicitly agreed that the
Sellers and the Purchaser shall bear their own respective costs,
expenses and other liabilities, including, without limitation, for
Tax, that may directly or indirectly be levied, in connection with
the transaction contemplated by this Agreement.
5.5 The Purchaser shall not be entitled to any compensation for any
misrepresentation or breach of warranties or representations under
this Agreement unless and until:
(i) the aggregate amount of all claims exceeds SEK
125,000,000, in which event the Sellers shall be liable
for the aggregate amount of all claims, subject to
Section 5.5 (ii) below; and
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(ii) the amount of any individual claim included in the
above aggregate amount of SEK 125,000,000 exceeds SEK
5,000,000, or if related to a claim from a Subscriber
or Property Owner SEK 900,000.
The thresholds in sub-clauses (i) and (ii) above shall not apply
to claims raised for breach of the Sellers' representations and
warranties with respect to liability for social security charges
resulting from the issuance of the Convertible Debentures and the
Warrants to employees, as set forth in Section 4.3.2. Such claims
shall not be included in the calculation of the aggregate amount
of claims under sub-clause (i) above.
5.6 Without prejudice to Section 5.8 (i) below the Purchaser shall not
be entitled to bring any claim against the Sellers for any
misrepresentation or breach of any warranties or representations
under this Agreement unless a notice in writing of any such claim
has been given by the Purchaser to the Sellers as soon as
reasonably practicable but in no event later than forty-five (45)
days after the date when the Purchaser becomes aware, or
reasonably ought to become aware, of any circumstance giving rise
to a claim. The written notice shall be accompanied by reasonable
particulars thereof specifying the nature of the misrepresentation
or breach giving rise to the claim and, so far as practicable, the
amount claimed in respect thereof.
The Purchaser's right to claim for misrepresentation or breach of
warranties and representations shall be exercised prior to the
expiry of the twelve (12) month period immediately following the
Closing Date, on which date the Sellers liability hereunder shall
expire, provided, however, that (i) the warranties in Sections
4.1.1, 4.1.2, 4.1.4, 4.1.5 and 4.1.7 shall be valid for a period
of five (5) years after the Closing Date and (ii) the warranty in
Article 4.3.2 shall be valid until three (3) months after the date
the Taxes in question have been finally and irrevocably
determined, however not longer than eighteen (18) months from the
Closing Date.
Prior to the expiry of the eighteen (18) month period immediately
following the Closing Date, the Purchaser shall have the right to
perform, at EQT's reasonable expense, by means of independent
experts an audit of the Tax matters relative to the Group Members
for such past and current period as is open for reassessment by
the tax authorities. If any potential Tax liability is identified,
the Purchaser shall notify EQT thereof. EQT shall have the option
of indemnifying the Purchaser in respect thereof in accordance
with the terms of this Agreement. To the extent that EQT declines
to do so, the Purchaser may report the issue to the tax
authorities prior to the expiry of the eighteen (18) month period.
EQT shall in accordance with the terms of this Agreement indemnify
the Purchaser against the ultimate Tax liability resulting from
such action.
5.7 The Purchaser shall not be entitled to make claims for
misrepresentation or breach of warranties or representations in
respect of facts and circumstances set forth in or derived from
this Agreement, any Exhibits hereto, the Management Presentation
and the Preliminary Offering Circular, as well as all written
disclosures, documents and other written information supplied to
the Purchaser or any of its advisers and all information
contained in the Data Room and as specifically referred to in the
Data Room Index, provided that such facts, circumstances,
disclosures and information are true and correct as of the
Closing Date. Facts and circumstances set forth in any Exhibit
hereto as a disclosure made with respect to any of the Sellers'
representations or warranties given herein shall be deemed to
have been disclosed also with respect to all other
representations and warranties given by the Sellers herein.
5.8 Upon the Purchaser becoming aware of any third party claim, action
or demand, or any matter likely to give rise to any of these, in
respect of the warranties or representations under this Agreement
for which the Sellers may be liable, the Purchaser shall, or shall
procure that the Group Members shall
(i) as soon as reasonably practicable, but in no event
later than forty-five (45) days after the date it
appeared to the Purchaser or any of the Group Members
that the Sellers are or may become liable under the
warranties or representations under this Agreement,
give written notice thereof to the Sellers;
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(ii) not make any admission of liability, agreement,
settlement or compromise with any third party in
relation to any such claim or adjudication, without
obtaining the prior written consent of the Sellers;
(iii) take such action as the Sellers may reasonably request
to avoid dispute, or resist, appeal, compromise or
defend a claim, with the provison, however, that the
Purchaser shall not, and shall procure that the Group
Members shall not, accept or pay or compromise or make
any submission in respect of such claim, without the
Sellers' prior consent thereto;
(iv) give the Sellers, or the Sellers' duly authorised
representatives, reasonable access to the personnel of
the Purchaser and the Group Members, and to any
relevant premises, accounts, documents and records
within their respective power, and allow the Sellers
and the Sellers' duly authorised representatives to
take copies and photocopies thereof, all to enable the
Sellers, or the Sellers' duly authorised
representatives, to examine the grounds for and merits
of such claim;
(v) at the request of the Sellers, allow the Sellers to handle
any negotiation, dispute or litigation relating thereto with
any third party and grant the Sellers all authorisations and
all assistance as the Sellers may reasonably require to
enable the Sellers to defend any claim and to properly
conduct any litigation resulting therefrom. Notwithstanding
the foregoing, the Sellers shall have no obligation to
satisfy a claim with respect to any taxation matter, before
the Purchaser or any of the Group Members, as the case may
be, is obliged to make payment to the relevant tax
authority; and
(vi) take all reasonable action to mitigate any loss
suffered by it or any of the Group Members in respect
of which a claim could be made under the warranties and
representations under this Agreement.
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When pursuant to the foregoing any of the Sellers' consent is
required or the Sellers may require certain action to be taken,
then the Sellers shall respond to the Purchaser's request therefor
within thirty (30) days or such shorter time as may reasonably be
required due to the time limits the Purchaser has to adhere to in
relation to third parties. If the Sellers fail to do so, the
Purchaser may proceed as the Purchaser reasonably deems fit, and
the Sellers shall be deemed to have accepted the Purchaser's
reasonable actions or omissions in such regard.
5.9 The Purchaser shall not be entitled to recover damages or
otherwise obtain reimbursement or restitution more than once in
respect of any individual breach of the warranties or
representations under this Agreement.
5.10 The Sellers shall not be liable for any misrepresentation or
breach of warranty or representation under this Agreement to the
extent that the subject of the claim has been or is made good or
is otherwise compensated.
5.11 If, in respect of any matter which would give rise to a
misrepresentation or breach of any warranty or representation
under this Agreement, the Purchaser or any of the Group Members
is entitled to claim under any policy of insurance, then no such
matter shall be the subject of a claim under the warranties or
representations under this Agreement, unless and until the
Purchaser or the Group Members shall have made a claim against
its insurers, and any amount recovered under any such insurance
policy, less the increase in the insurance premiums or loss of
insurance bonuses (if any) directly and exclusively caused by a
claim against the insurance company as a direct result of a
misrepresentation or a breach of any warranty or representation,
shall then reduce any claims for misrepresentation or breach of
any warranty or representation under this Agreement accordingly.
5.12 In addition to what is otherwise expressed in this Agreement, no
claim for any misrepresentation or breach of any warranty or
representation under this Agreement shall be brought by the
Purchaser against the Sellers, if and to the extent that any such
claim occurs as a result of any legislation not in force or any
practice of any authorities deviating from or not being an
established practice at the date hereof, or which takes effect
retrospectively, or occurs as a result of any increase in the
rate of tax in force at the date hereof or any change in the
practice of the relevant tax authorities. For the avoidance of
doubt, any practice relating to the period after the Closing,
merely confirming the contents of a statute in force before the
Closing, shall be deemed to be an established practice as of the
date hereof.
5.13 No matter shall be the subject of a claim for any
misrepresentation or breach of warranties and representations
under this Agreement to the extent that allowance, provision or
reserve has been made for such matter in the Financial Statements,
or has been otherwise taken account of or reflected in the
Financial Statements.
5.14 The Sellers make no warranties or representations other than
those expressly set forth in this Agreement and shall not be
liable in respect of any warranty, representation, liability
under any statute (including but not limited to the Swedish Sale
of Goods Act (Sw: koplagen 1990:931) as amended) or legal
principle or otherwise arising out of, or in connection with, the
transactions hereunder, except where the same is expressly
contained in this Agreement and the Purchaser confirms that it
has not relied on any warranty, representation or liability under
any statute (including but not limited to the Swedish Sale of
Goods Act as amended) or legal principle which is not expressly
contained in this Agreement.
5.15 The remedies provided to the Purchaser in this Agreement shall be
exclusive and hence it is specifically agreed that no remedy
whatsoever under the Swedish Sale of Goods Act (as amended) or
under any other statute or legal principle, including (but not
limited to) rescission of this Agreement, except for the right to
interest under the Interest Act (Sw. Rantelag), shall be
available to the Purchaser. The foregoing shall not apply in
respect of a breach of the warranties and representations in
Sections 4.1.1, 4.1.2, 4.1.4, 4.1.5 and 4.1.7.
5.16 In case of a breach of the warranty in Section 4.2.6 a specific
remedy shall apply in the form of a reduction of the Purchase
Price calculated as follows:
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(i) if the number of Connected Homes is inferior to 240,000
by more than two (2) percent, [the total Purchase Price
reduction] shall be equal to [the difference between
the actual number of Connected Homes and 240,000]
multiplied by [the Purchase Price divided by 240,000].
(ii) if the actual number of Subscribers as of 30 June 1999
was inferior to 137,000 by more than two (2) per cent,
[the total Purchase Price reduction] shall be equal to
[the difference between the actual number of
Subscribers and 137,000] multiplied by [the Purchase
Price divided by 137,000].
Sections 5.3 and 5.5 shall not apply to the remedy under this
Section 5.16.
6.
settlement of claims and escrow arrangement
6.1 As from the Closing Date, the Note in the amount of USD 100
million shall be deposited in the Escrow Account in accordance
with Section 2.4 (ii). When the Note is converted into cash,
listed common shares of the Issuer with a nominal value of EUR
0.30 and/or LV Shares, or when any shares or LV Shares have been
converted into cash, then such cash or shares (as the case may
be) shall in lieu of the converted Note or the sold shares,
subject to the provisions of this Section 6, be delivered to the
Escrow Account to be held by the Escrow Agent on the Escrow
Account in accordance with the terms and conditions of the Escrow
Agreement.
6.2 Without prejudice to any of the provisions of Section 5, any
settlement made by the Sellers in respect of any claim shall be in
the form of a reduction of the Purchase Price, paid from the
Escrow Account. The Sellers shall be entitled to settle a claim
with LV Shares in case settlement shall occur during the Lock-up
Period or with a set-off against the Note, in case the conversion
of the Note has not been completed on the date of settlement.
Otherwise, settlement shall be made in cash and/or in common
shares, if any.
In case of settlement with LV Shares, the value of the LV Shares
transferred by EQT to the Purchaser shall for purposes of this
section be the average of the closing share price of the LV Shares
as listed on the AEX or any other foreign publicly regulated major
stock exchange during ten (10) days of trading immediately prior
to the date of settlement. The foregoing shall apply equally,
mutatis mutandis, in case of settlement with common shares, if
any, in the Escrow Account.
6.3 If the Purchaser has asserted a claim in accordance with Section
5.6 for a misrepresentation or breach of warranties or
representations by delivering a written notice to the Sellers and
the Sellers do not dispute such claim, the parties shall jointly
instruct the Escrow Agent to pay, set-off or transfer the number
of LV Shares corresponding to the amount of such claim to the
Purchaser. Insofar as the amount in the Escrow Account shall not
suffice for such purpose due to a claim for a breach of the
warranties and representations in Sections 4.1.1, 4.1.2, 4.1.4,
4.1.5 and 4.1.7, EQT shall promptly pay the difference.
In case settlement due to a claim raised within the twelve (12)
month period immediately following the Closing Date occurs prior
to the final day of the Lock-up Period, the Sellers shall not be
obliged to settle an amount exceeding the Second Step-Down Cap
reduced by any amounts previously settled (excluding settlement of
breach of the warranties and representations in Sections 4.1.1,
4.1.2, 4.1.4, 4.1.5 and 4.1.7). The remaining settlement amount,
if any, shall be paid immediately after the relevant cap has been
calculated in accordance with the terms of Section 5.3.
6.4 If there shall arise any dispute regarding a misrepresentation or
breach of warranties or representations, or the amount by which
the Purchase Price shall be reduced, such dispute shall be
resolved and finally determined by arbitration pursuant to
Section 20 below or by other agreed means. Upon the final
resolution and determination of such dispute the Escrow Agent
shall pay, set-off or transfer the number of LV Shares
corresponding to the amount to which the Purchaser is entitled
pursuant to such final resolution, to the Purchaser from the
Escrow Account. Insofar as the amount in the Escrow Account shall
not suffice for such purpose due to a claim for a breach of the
warranties and representations in Sections 4.1.1, 4.1.2, 4.1.4,
4.1.5 and 4.1.7, EQT shall promptly pay the difference.
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In case settlement due to a claim raised within the twelve (12)
month period immediately following the Closing Date occurs prior
to the final day of the Lock-up Period, the Sellers shall not be
obliged to settle an amount exceeding the Second Step-Down Cap
reduced by any amounts previously settled (excluding settlement of
breach of the warranties and representations in Sections 4.1.1,
4.1.2, 4.1.4, 4.1.5 and 4.1.7). The remaining settlement amount,
if any, shall be paid immediately after the relevant cap has been
calculated in accordance with the terms of Section 5.3.
6.5 Provided that it occurs during the twelve (12) month period
immediately following the Closing Date, the Purchaser and the
Sellers shall on the first Business Day following the final day
of the Lock-up Period jointly instruct the Escrow Agent to
release, where applicable, any amounts or shares in the Escrow
Account exceeding the amount of the First Step-Down Cap or the
Second Step-Down Cap, as the case may be, reduced by any amounts
previously settled from the Escrow Account, subject to the
provisions of Section 6.6.
On the anniversary of the Closing Date, the Purchaser and the
Sellers shall jointly instruct the Escrow Agent to release any
amounts or shares in the Escrow Account exceeding the amount of
the Final Cap reduced by any amounts previously settled from the
Escrow Account, subject to the provisions of Section 6.6.
If, on the date of expiry of the eighteen (18) month period
immediately following the Closing, there shall be any amounts or
shares remaining in the Escrow Account after payment by the Escrow
Agent to the Purchaser of the amounts to which the Purchaser is
entitled pursuant to Section 6.3 and 6.4 above, the parties shall
jointly instruct the Escrow Agent to immediately pay all such
remaining amounts or shares, together with accrued interest
thereon, to the Sellers, subject to the provisions of Section 6.6.
6.6 If, on the date of expiry of the twelve (12) month period
immediately following the Closing Date or on the date of expiry
of the eighteen (18) month period immediately following the
Closing Date as set forth in Section 6.5 above, there are any
outstanding claims (whether arbitration proceedings are pending
pursuant to Section 20 below or not) with respect to any actual
or alleged misrepresentation or breach of warranties or
representations or the amount of reduction in the Purchase Price
to which the Purchaser is entitled under Section 6.3 and 6.4
above, the Purchaser and the Sellers shall promptly and jointly
instruct the Escrow Agent to immediately pay to the Sellers the
positive difference, if any, between the amounts or shares on
deposit in the Escrow Account releasable under Section 6.5 above
and the amount reasonably deemed by the Sellers and the
Purchaser, acting in good faith, as sufficient to satisfy its
claim(s). Upon the final resolution of such claim(s), the Escrow
Agent shall pay (A) to the Purchaser from the Escrow Account the
amount or the shares, if any, that the Purchaser is entitled to
pursuant to such final resolution, and (B) to the Sellers such
redundant amounts or shares remaining on deposit in the Escrow
Account (after payment to the Purchaser of the amount referred to
in clause (A) above), together with interest accrued thereon.
7. WARRANTIES and representations of the purchaser
The Purchaser hereby represents and warrants to the Sellers on the
date hereof and on the Closing Date that:
7.1 Power and Authority of the Purchaser
The Purchaser is a corporation duly organised and validly existing
under the laws of the Netherlands. The Purchaser has and will have
the corporate power and authority to make, execute, deliver and
perform all of its obligations under this Agreement, and this
Agreement has been duly authorized and approved by all required
corporate action of the Purchaser. This Agreement constitutes and
will constitute a legal, valid and binding obligation of the
Purchaser enforceable against the Purchaser in accordance with its
terms.
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7.2 No Violation of Laws and Regulations
Assuming that the Purchaser's conditions precedent set forth in
Section 9.1 are fulfilled, the execution and delivery of this
Agreement by the Purchaser and the consummation by the Purchaser
of the transactions contemplated hereby will not:
(i) violate any provisions of the Articles of Associations
or other similar organizational document of the
Purchaser;
(ii) violate any statute, rule, regulation, order or decree
of any public body or authority by which the Purchaser
or any of its properties or assets is bound; and
(iii) result in a violation or breach of, constitute a
default under, or give rise to a right of termination
or acceleration of the performance required by any
license, permit, agreement or other instrument to which
the Purchaser is a party, or by which the Purchaser or
any of its properties or assets is bound,
excluding from the foregoing clauses (i) through (iii) violations,
breaches or defaults which, either individually or in the
aggregate, would not prevent the Purchaser from performing its
obligations under this Agreement or consummation of the
transactions contemplated by this Agreement.
7.3 The Note and shares in the Issuer
7.3.1 The Note is legally and validly issued, fully paid and enforceable
in accordance with its terms. EQT will acquire good and legal
title to the Note subject to no liens, encumbrances or rights of
third parties of any kind other than under the terms of this
Agreement.
7.3.2 The shares into which the Note may be converted are, at the time
of each conversion, legally and validly issued, fully paid and
free and clear of any lien, encumbrance, pre-emptive right or
other restriction whatsoever and are listed on the AEX or any
other foreign publicly regulated major stock exchange. The Issuer
will adhere to all rules and regulations of the stock exchange
where the shares are listed. The Issuer has good and transferable
title to such shares and has the absolute right, power and
capacity to issue, sell, assign and deliver such shares to EQT in
accordance with the terms of this Agreement.
7.4 Financing
The Purchaser will on the Closing Date have sufficient cash,
available lines of credit or other sources of immediately
available funds to enable the Purchaser to make all payments it
may be required to make hereunder.
8.
Indemnity
In case of a breach of any of the Purchaser's warranties and
representations, the Sellers shall have the remedies available
under Swedish law. Notwithstanding the Purchaser's obligation to
pay the Purchase Price, the Purchaser's aggregate liability for
breach of this Agreement shall not exceed an amount equalling the
Purchase Price.
If Closing occurs, the Purchaser undertakes to indemnify and hold
harmless EQT against any and all loss, damage or costs suffered or
incurred by EQT as a result of its undertaking against Nordbanken
AB (publ.) to inject capital in the amount of SEK 50 million into
the Company under certain circumstances, as set forth in a letter
from Nordbanken AB (publ.) to EQT, dated 30 June 1999.
9. CLOSING CONDITIONS
9.1 Conditions precedent to the Purchaser's obligation to purchase the
Shares and the Instruments
The obligation of the Purchaser to purchase the Shares and the
Instruments is subject to the fulfilment or waiver by the
Purchaser prior to or on the Closing of the following conditions:
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9.1.1 The Sellers and the Purchaser, respectively, shall have obtained
all regulatory approvals and authorisations required to be
obtained by the Sellers or the Purchaser, as the case may be, in
connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby, including all approvals of antitrust or merger control
authorities in all relevant jurisdictions (or, to the extent such
antitrust approval is not required, all required antitrust filings
or notices shall have been duly made).
9.1.2 The Purchaser shall have received a written confirmation from
Nordbanken AB (publ.), whereby Nordbanken AB (publ.) waives its
right to claim breach of the financial covenants and/or change of
control provisions in a loan agreement between the Company and
Nordbanken AB (publ.), dated December 1998, for a period of sixty
(60) days following the Closing Date.
9.1.3 The Purchaser shall have received a letter from Investor AB
regarding co-investment and non-competition, reasonably
satisfactory to the Purchaser.
9.1.4 All of the representations, warranties and covenants of the
Sellers contained in this Agreement are true and accurate in all
material respects, not only as of the Agreement Date but also as
of the Closing Date with the same force and effect as if made at
and as of the Closing Date, or Sellers shall have remedied any
material deviations.
9.2 Conditions precedent to the Sellers' obligation to sell the Shares and
the Instruments
The obligation of the Sellers to sell the Shares and the
Instruments is subject to the fulfilment or waiver by the Sellers
prior to or on the Closing of the following conditions:
9.2.1 The Sellers and the Purchaser, respectively, shall have obtained
all regulatory approvals and authorisations required to be
obtained by the Sellers or the Purchaser, as the case may be, in
connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby, including all approvals of antitrust or merger control
authorities in all relevant jurisdictions (or, to the extent such
antitrust approval is not required, all required antitrust filings
or notices shall have been duly made).
9.2.2 The Purchaser has released all the guarantees granted by EQT for
the benefit of the Company or any of the Subsidiaries, as listed
in Exhibit 3.2 (b) effective as of the Closing Date.
9.2.3 The Sellers shall have obtained a legal opinion on the Note,
reasonably satisfactory to the Sellers, from a well-reputed legal
counsel engaged by the Purchaser, substantially in the form
attached hereto as Exhibit 9.2.3.
9.2.4 The Sellers shall have obtained a legal opinion on the due
authorisation of the Purchaser to execute this Agreement,
reasonably satisfactory to the Sellers, from a well-reputed legal
counsel engaged by the Purchaser.
9.2.5 All of the representations, warranties and covenants of the
Purchaser contained in this Agreement are true and accurate in all
material respects, not only as of the Agreement Date but also as
of the Closing Date with the same force and effect as if made at
and as of the Closing Date, or the Purchaser shall have remedied
any material deviations.
9.3 Each party agrees to use its best efforts to cause the conditions
precedent to its own obligations to be fulfilled.
10. co-investment right and non-competition
The Purchaser is planning to make an investment in the cable-TV
assets of the merged company between Telia AB and Telenor A/S. EQT
and the Purchaser have agreed that, provided that such investment
shall in fact be realised before the second anniversary of the
Closing Date, EQT shall have a right, but not an obligation, to
acquire 20 % of such investment in the form of shares or other
securities in the merged company between Telia AB and Telenor A/S,
as the case may be, from the Purchaser, for a consideration
corresponding to 20 % of the purchase price paid by the Purchaser
for the total investment and otherwise on the same terms and
conditions as the Purchaser made the total investment. EQT is
entitled to assign its rights hereunder (in whole or in part) to
Investor AB or the other Sellers.
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EQT, but not the other Sellers, hereby agrees that, for a period
of two (2) years from the Closing Date, it will not be involved or
invest in any cable TV business in Sweden which is competitive
with the cable TV business currently conducted by any of the Group
Members, and will not be involved or invest in any cable TV
business or assets, directly or indirectly conducted or owned by
Telia AB or the merged company between Telia AB and Telenor A/S,
except as provided for in this Agreement.
11. CONFIDENTIALITY
The Sellers and EQT for themselves and any affiliated entities
undertake up to and including the second anniversary of the
Closing Date to maintain in strict confidence and not to disclose
any confidential information which is a business or trade secret
in any of the Group Member's business as of the Closing Date. The
non-disclosure obligation shall not, however, apply to any
information which:
(i) was generally available to the public;
(ii) has become - through no act or failure of the Sellers -
public information or generally available to the
public; or which
(iii) is disclosed pursuant to applicable law or called for
by the requirements of any Stock Exchange.
12.
non-solicitation
EQT, but not the other Sellers, hereby unconditionally and
irrevocably agrees that, for a period of two (2) years from the
Closing Date, it will refrain from, directly or indirectly,
soliciting to employ any members of the Management on its own
behalf or on behalf of other parties.
13. MISCELLANEOUS
This Agreement supersedes any prior oral or written agreement
between the parties and any undertaking or warranty of any kind
with respect to all matters referred to herein.
14. NOTICES
All notices, requests and other communications hereunder shall be
in writing and shall be deemed to have been duly given if
delivered or sent by certified mail (postage prepaid) or by
facsimile with confirmation by certified mail (postage prepaid),
addressed as follows:
7
If to the Sellers:
EQT Scandinavia Limited
PO Box 626
National Westminster House
Le Truchot
St Peter Port
Guernsey GY1 4PW
Channel Islands
Attention: David Jeffreys
Facsimile: +44-1481-728 493
With copies to:
(i) Mannheimer Swartling Advokatbyra AB
Norrmalmstorg 4
Box 1711
111 87 Stockholm, Sweden
Attention: Martin Ericsson, Esq.
Facsimile: +46-8-613 55 01
If to the Purchaser:
United Pan-Europe Communications N.V.
PO Box 747 63
1070 BT Amsterdam
The Netherlands
Attention: the Managing Director
Facsimile: +31-20-778 98 81
or to such other address as may have been furnished in writing to
the party giving the notice by the party to whom notice is to be
given. Any notice, request or other communication hereunder shall
be deemed to be received (i) if made by registered mail, postage
prepaid and return receipt requested, on the date of receipt
thereof; and (ii) if made by facsimile, on the date of receipt of
such facsimile as evidenced by the receipt issued by the sender's
21
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fax machine, unless the sender failed to send a confirmation and
copy of such notice, request or other communication by registered
mail, postage prepaid and return receipt requested no later than
the Business Day next succeeding the date on which such facsimile
has been sent, in which case such notice, request or other
communication shall be deemed to be received on the date of the
receipt thereof by registered mail, postage prepaid and return
receipt requested. The provision of copies is for convenience only
and shall not be deemed to be a condition for the effectiveness of
any notices.
15.
ASSIGNMENT
This Agreement and the rights and obligations specified herein
shall be binding upon and inure to the benefit of the parties and
may not be assigned by any party without the prior written consent
of the other party, except for a right for the Purchaser to assign
this Agreement to any of its wholly-owned subsidiaries. In the
event the Purchaser assigns this Agreement to such a wholly-owned
subsidiary, the Purchaser shall remain as guarantor for the
fulfilment of all the Purchaser's obligations under this
Agreement. For the avoidance of doubt, the Purchaser shall not
have the right to assign its rights and obligations under this
Agreement in its capacity as the Issuer.
16. Expenses
Whether or not the Closing is consummated, except as otherwise
provided in this Agreement, each of the parties will pay all of
its own legal and accounting fees and other expenses, including
broker's or finder's fees, incurred in the preparation of this
Agreement and the performance of the terms and provisions of this
Agreement.
17. Waiver
The parties hereto may by written agreement (i) extend the time
for or waive or modify the performance of any of the obligations
or other acts of the parties hereto or (ii) waive any inaccuracies
in the representations and warranties contained in this Agreement
or in any document delivered pursuant to this Agreement.
18.
publicity
The parties shall jointly inform the employees of the Group and
discuss the release of Stock Exchange information and any other
disclosure concerning the transaction regulated herein as well as
public relations actions to be taken subsequent to the Agreement
Date. The parties are not allowed to disclose information
regarding this Agreement to third parties, unless explicitly
agreed between the parties.
19. sellers' primary and secondary liability, attorney in fact and
process agent
19.1 Any claim for misrepresentation, breach of warranties or
representations contained herein or any other breach of the
provisions in this Agreement made by the Purchaser, shall be
brought, and any proceedings initiated by the Purchaser shall be
held against EQT exclusively. EQT has the primary liability for
breach of this Agreement and no claims may be raised or
proceedings initiated for breach of this Agreement against any
other Sellers unless and until EQT has been found insolvent,
bankrupt, under liquidation, otherwise financially unable to
fulfil its obligations or has failed to comply with its
obligations under a final arbitration award, not subject to
appeal, or other final determination as agreed between the
parties, within thirty (30) days from the date of that award or
determination. For purposes hereof, all other Sellers also hereby
agree to be bound by such final award or determination.
19.2 In the event that the Purchaser notifies or makes a claim under
this Agreement the Sellers agree and the Purchaser acknowledges
that such claim shall be dealt with by EQT on behalf of the
Sellers as their appointed attorney in fact and that EQT shall be
entitled to bind the Sellers for the purposes of pursuing,
agreeing or disputing a claim and that EQT is irrevocably
authorised to represent Sellers for purposes of any legal
proceedings, including any proceedings pursuant to Section 20.
The amount of any claim which is agreed or determined by the
tribunal under Section 20 to be paid by EQT or the Sellers, as
the case may be, shall be paid by EQT or the Sellers to the
Purchaser within 10 Business Days of the date of agreement or
determination of the claim and in the event it is not so paid the
Purchaser shall be entitled to demand the amount of the claim so
agreed or determined from all or any of the Sellers.
19.3 The Sellers hereby irrevocably appoint as their agent for purposes
of service of process in all matters under this Agreement
Mannheimer Swartling Advokatbyra, attention of Martin Ericsson, at
the address set forth in Section 14.
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20. DISPUTES AND GOVERNING LAW
20.1 Any dispute, controversy or claim arising out of or in connection
with this Agreement, or the breach, termination or invalidity
hereof, shall be finally settled by arbitration in accordance with
the Rules of the Arbitration Institute of the Stockholm Chamber of
Commerce. The arbitral tribunal shall be composed of three
arbitrators. The place of arbitration including the making of the
award shall be Stockholm, Sweden. The language to be used in the
arbitral proceedings shall be English.
20.2 The arbitration proceedings shall be confidential and the
arbitral tribunal shall issue appropriate protective orders to
safeguard each party's confidential information. Except as
required by law, no party shall make (or instruct the arbitral
tribunal to make) any public announcement with respect to the
proceedings or decision of the arbitral tribunal without the
prior written consent of the other party. The existence of any
dispute submitted to arbitration, and the award of the arbitral
tribunal, shall be kept in confidence by the parties and the
arbitral tribunal, except as required in connection with the
enforcement of such award or as otherwise required by applicable
law.
20.3 This Agreement, including the above arbitration agreement, shall
be governed by and construed in accordance with the substantive
laws of Sweden.
<PAGE>
23
-----------------
IN WITNESS WHEREOF, the Sellers and the Purchaser have executed this Agreement
on the day and year first above written to be effective as and from that day:
EQT SCANDINAVIA LIMITED UNITED PAN-EUROPE
For itself and on behalf of COMMUNICATIONS N.V.
the Shareholders, the Warrant Holders
and the Convertible Debenture Holders
/s/ Eva Hagg /s/
By: Eva Hagg By:
as of Power of Attorney
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Issuer
CITIBANK, N.A. (London Branch)
Trustee
--------------------
Indenture
Dated as of July 30, 1999
---------------------
$800,000,000 10 7/8% Senior Notes Due 2009
(U)300,000,000 10 7/8% Senior Notes Due 2009
1
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TABLE OF CONTENTS
Page
ARTICLE I - DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION.......................................................1
SECTION 1.1 Definitions. ................................1
SECTION 1.2 Compliance Certificates and Opinions.........39
SECTION 1.3 Form of Documents Delivered to
Trustee. ...................................40
SECTION 1.4 Acts of Holders..............................41
SECTION 1.5 Notices. ....................................42
SECTION 1.6 Notice to Holders; Waiver. .................44
SECTION 1.7 Effect of Headings and Table of
Contents. ..................................45
SECTION 1.8 Successors and Assigns. ....................45
SECTION 1.9 Separability Clause. .......................45
SECTION 1.10 Benefits of Indenture. ......................45
SECTION 1.11 Governing Law. .............................45
SECTION 1.12 Conflict with Trust Indenture Act. .........46
SECTION 1.13 Legal Holidays. ............................46
SECTION 1.14 No Personal Liability of Board
Members, Officers, Employees and
Shareholders.................................46
SECTION 1.15 Independence of Covenants. .................47
SECTION 1.16 Exhibits. ..................................47
SECTION 1.17 Counterparts.................................47
SECTION 1.18 Duplicate Originals..........................47
SECTION 1.19 Agent for Service; Submission to
Jurisdiction; Waiver of Immunities..........47
SECTION 1.20 Judgment Currency............................48
ARTICLE II - SECURITY FORMS.................................................49
SECTION 2.1 Forms Generally. ...........................49
ARTICLE III - THE SECURITIES................................................49
SECTION 3.1 Title and Terms..............................49
SECTION 3.2 Denominations. ..............................50
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SECTION 3.3 Execution, Authentication, Delivery
and Dating. ................................51
SECTION 3.4 Temporary Securities. ......................55
SECTION 3.5 Registration, Registration of Transfer
and Exchange.................................55
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen
Securities...................................57
SECTION 3.7 Payment of Interest; Interest Rights
Preserved....................................57
SECTION 3.8 Persons Deemed Owners........................59
SECTION 3.9 Cancellation.................................59
SECTION 3.10 Computation of Interest......................60
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers................60
SECTION 3.12 Book-Entry Provisions for Global
Securities, Certificated Securities..........60
SECTION 3.13 Transfer and Exchange of Securities..........62
SECTION 3.14 Special Transfer Provisions..................73
ARTICLE IV - SATISFACTION AND DISCHARGE.....................................74
SECTION 4.1 Satisfaction and Discharge of Indenture......74
SECTION 4.2 Application of Trust Money...................75
ARTICLE V - REMEDIES........................................................76
SECTION 5.1 Events of Default............................76
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment................................77
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee...................78
SECTION 5.4 Trustee May File Proofs of Claim.............79
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities.....................80
SECTION 5.6 Application of Money Collected...............80
SECTION 5.7 Limitation on Suits..........................81
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest..............82
SECTION 5.9 Restoration of Rights and Remedies...........82
SECTION 5.10 Rights and Remedies Cumulative...............82
SECTION 5.11 Delay or Omission Not Waiver.................82
SECTION 5.12 Control by Holders...........................83
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<PAGE>
SECTION 5.13 Waiver of Past Defaults......................83
SECTION 5.14 Waiver of Stay or Extension Laws.............83
ARTICLE VI - THE TRUSTEE....................................................84
SECTION 6.1 Certain Duties and Responsibilities..........84
SECTION 6.2 Notice of Default............................85
SECTION 6.3 Certain Rights of Trustee....................85
SECTION 6.4 Trustee Not Responsible for Issuance
of Securities................................87
SECTION 6.5 May Hold Securities..........................87
SECTION 6.6 Money Held in Trust..........................87
SECTION 6.7 Compensation and Reimbursement...............87
SECTION 6.8 Corporate Trustee Required; Eligibility;
Conflicting Interests........................89
SECTION 6.9 Resignation and Removal; Appointment of
Successor....................................89
SECTION 6.10 Acceptance of Appointment by Successor.......91
SECTION 6.11 Merger, Conversion, Consolidation or
Succession to Business.......................91
ARTICLE VII - HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY ............92
SECTION 7.1 Disclosure of Names and Addresses of
Holders......................................92
SECTION 7.2 Reports by Trustee...........................92
SECTION 7.3 Reports by Company...........................92
ARTICLE VIII - CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER
OR LEASE....................................................................93
SECTION 8.1 Company May Consolidate, Etc., Only
on Certain Terms.............................93
SECTION 8.2 Successor Substituted........................94
---------------------
ARTICLE IX - SUPPLEMENTAL INDENTURES........................................94
SECTION 9.1 Indentures Without Consent of Holders........94
SECTION 9.2 Indentures with Consent of Holders...........95
SECTION 9.3 Execution of Indenture.......................96
SECTION 9.4 Effect of Indentures.........................97
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SECTION 9.5 Conformity with Trust Indenture Act..........97
SECTION 9.6 Reference in Securities to Indentures........97
SECTION 9.7 Notice of Indentures.........................97
ARTICLE X - COVENANTS.......................................................97
SECTION 10.1 Payment of Principal, Premium, if Any,
and Interest.................................97
SECTION 10.2 Maintenance of Office or Agency..............98
SECTION 10.3 Money for Security Payments to Be
Held in Trust................................99
SECTION 10.4 Corporate Existence.........................100
SECTION 10.5 Payment of Taxes and Other Claims...........101
SECTION 10.6 Maintenance of Properties...................101
SECTION 10.7 Insurance...................................101
SECTION 10.8 Provision of Financial Statements...........102
SECTION 10.9 Statement by Officers as to Default.........102
SECTION 10.10 Purchase of Securities upon Change of
Control.....................................103
SECTION 10.11 Limitation on Incurrence of Additional
Indebtedness and Disqualified Capital
Stock.......................................107
SECTION 10.12 Limitation on Restricted Payments...........109
SECTION 10.13 Limitation on Dividend and Other
Payment Restrictions Affecting
Subsidiaries................................112
SECTION 10.14 Limitation on Liens Securing
Indebtedness................................114
SECTION 10.15 Limitation on Issuances of Guarantees
by Subsidiaries.............................114
SECTION 10.16 Limitation on Sale of Assets and Subsidiary
Stock.......................................114
SECTION 10.17 Limitation on Transactions with Affili
ates........................................119
SECTION 10.18 Additional Amounts..........................120
SECTION 10.19 Waiver of Stay, Extension or Usury Laws.....122
ARTICLE XI - REDEMPTION OF SECURITIES......................................123
SECTION 11.1 Right of Redemption.........................123
SECTION 11.2 Applicability of Article....................125
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SECTION 11.3 Election to Redeem; Notice to Trustee.......125
SECTION 11.4 Selection by Trustee of Securities to Be
Redeemed....................................125
SECTION 11.5 Notice of Redemption........................125
SECTION 11.6 Deposit of Redemption Price.................126
SECTION 11.7 Securities Payable on Redemption Date.......126
SECTION 11.8 Securities Redeemed in Part.................127
ARTICLE XII - DEFEASANCE AND COVENANT DEFEASANCE...........................127
SECTION 12.1 Company's Option to Effect Defeasance
or Covenant Defeasance......................127
SECTION 12.2 Defeasance and Discharge....................127
SECTION 12.3 Covenant Defeasance.........................128
SECTION 12.4 Conditions to Defeasance or Covenant
Defeasance..................................128
SECTION 12.5 Deposited Money and U.S. Government
Securities to Be Held in Trust; Other
Miscellaneous Provisions....................130
SECTION 12.6 Reinstatement...............................131
EXHIBIT A..................................................................A-1
EXHIBIT B..................................................................B-1
EXHIBIT C..................................................................C-1
EXHIBIT D..................................................................D-1
EXHIBIT E..................................................................E-1
EXHIBIT F..................................................................F-1
EXHIBIT G..................................................................G-1
EXHIBIT H..................................................................H-1
EXHIBIT I..................................................................I-1
v
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INDENTURE, dated as of July 30, 1999 by and between United
Pan- Europe Communications N.V., a public limited liability company organized
and existing under the laws of The Netherlands (herein called the "Company"),
having its principal office at Fred. Roeskestraat 123, 1076 EE Amsterdam, The
Netherlands, and Citibank, N.A. (London Branch), as Trustee (herein called the
"Trustee"). Each party agreed as follows for the benefit of the other party and
for the equal and rateable benefit of the Holders (as defined below) of the
Company's 107/8 % Senior Notes due 2009 denominated in U.S. Dollars and 107/8%
Senior Notes due 2009 denominated in Euros:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the SEC adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with "GAAP" as defined in this section
1.1;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, paragraph or other subdivision; and
(e) unless otherwise indicated, references to Articles,
Sections, paragraphs or other subdivisions are references to such Articles,
Sections, paragraphs or other subdivisions of this Indenture.
1
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"Acceleration Notice" has the meaning set forth in Section
5.2.
"Acquired Indebtedness" means Indebtedness (including
Disqualified Capital Stock) of any Person existing at the time such Person
becomes a Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any
Person or all or substantially all the assets of any Person by any other Person,
whether by purchase, merger, consolidation, or other transfer, and whether or
not for consider ation.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Amounts" has the meaning specified in Section
10.18.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. For purposes of this definition, the term "control" means the power to
direct the manage ment and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to constitute
control.
"Agent Member" means, with respect to any Depositary, any
member of, or participant in, such Depositary.
"Applicable Procedures" has the meaning set forth in Section
3.13(b)(ii).
"Annualized Consolidated EBITDA" means Consolidated EBITDA for
the Reference Period multiplied by four.
"Asset Acquisition" means (i) an Investment or capital
contribution (by means of transfers of cash or other property to others or
payments for property or
2
3
<PAGE>
services of the account or use of others, or otherwise) by the Company or any
Subsidiary in any other Person, or any acquisition or purchase of Capital Stock
of another Person by the Company or any Subsidiary, or (ii) an acquisition by
the Company or any Subsidiary of the property and assets (other than Capital
Stock) of any Person other than the Company or any Subsidiary which constitute
substantially all of a division, operating unit or line of business of such
Person or which is otherwise outside the ordinary course of business.
"Asset Sale" has the meaning set forth in Section 10.16.
"Average Life" means, as of the date of determination, with
respect to any security or instrument, the quotient obtained by dividing (1) the
sum of the products (a) of the number of years from the date of determination to
the date or dates of each successive scheduled principal (or redemption) payment
of such security or instrument and (b) the amount of each such respective
principal (or redemption) payment by (2) the sum of all such principal (or
redemption) payments.
"Beneficial Owner" or "beneficial owner" for purposes of the
defini tion of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Board Resolution" means a copy of a resolution certified by a
managing director or other authorized officer, assistant officer or
representative of the Company to have been duly adopted by the Supervisory Board
of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York and Amsterdam, The Netherlands are authorized or obligated by law or
executive order to close.
"Capital Contribution" means any contribution to the equity of
the Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of Qualified Capital Stock is paid.
4
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"Capitalized Lease Obligation" means, as to any Person, the
obliga tions of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Corporation, any
and all shares, interests, rights to purchase (other than convertible or
exchangeable Indebted ness that is not itself otherwise capital stock),
warrants, options, participations or other equivalents of or interests (however
designated) in stock issued by that Corpo ration.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by
(i) the United States of America or any agency or instrumentality
thereof or (ii) any member of the European Economic Area or
Switzerland, or any, agency or instrumentality thereof provided that
such country, agency or instrumentality has a credit rating at least
equal to that of the United States of America (provided that, in each
case, the full faith and credit of such respective nation is pledged in
support thereof), or
(2) time deposits and certificates of deposit and commercial paper
issued by the parent Corporation of any domestic (United States)
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 (or the foreign currency equivalent thereof), or
(3) commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or
the equivalent thereof by Moody's Investors Service, Inc.
and in the case of each of (1), (2), and (3) maturing within one year
after the date of acquisition, or
(4) Euro or Dollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceed ing six months, and overnight bank deposits, in each case with
any domestic (United States) commercial bank (including the Trustee)
having capital and surplus in excess of $500,000,000 (or the foreign
currency equivalent thereof)
5
<PAGE>
and a Keefe Bank Watch Rating of "B" or better; provided, in the case
of (1) through (4), that with respect to any non-domestic Person, Cash
Equivalents shall also mean those investments that are comparable to
clauses (ii) and (iv) above in such Person's country of organization or
country where it conducts business operations.
"Cedelbank" means Cedelbank.
"Certificated Security" means any certificated Security in
fully registered definitive form.
"Change of Control" means any merger or consolidation of the
Company with or into any Person or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the Company's assets,
on a Consoli dated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction(s), either
(A) any "person" or "group" (other than the Parent or any of the
Principals) is or becomes the "beneficial owner", directly or
indirectly, of more than 35% of the total voting power of all classes
of the Company's securities in the aggregate normally entitled to vote
in the election of directors, managers, or trustees, as applicable, of
the transferee(s) or surviving entity or entities and such "person" or
"group" beneficially owns (after giving effect to such transaction) a
greater percent age of the total voting power than is at that time
beneficially owned by Parent and the Principals (in the aggregate) and
none of the Parent nor any of the Principals has the right or ability
by voting power, contract or otherwise to elect or nominate for
elections a majority of the Company's Supervisory Board, or
(B) the Continuing Directors cease for any reason to constitute a majority
of the Supervisory Board of the Company then in office, or
(C) the Company adopts a plan of liquidation (other than a plan of
liquidation as a consequence of which (1) the Parent and the
Principals (in the aggregate) beneficially own at least the same
percentage of voting power after the consummation of such plan as
before or otherwise retain the right or ability, by voting power, to
control the Person that acquires the proceeds of such liquidation and
(2) the Person that acquires the substantial majority of the proceeds
of such liquida tion shall have assumed by supplemental indenture the
Company's obligations pursuant to this Indenture).
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"Common Depositary" means Citivic Nominees Limited, as common
depositary for Euroclear and Cedelbank and depositary for the Euro Denominated
Securities, together with its successors in such capacity.
"Common Stock" of any Person means Capital Stock of the Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of the Person, to shares of Capital Stock of any other
class of the Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursu ant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by a member of the Company's manage
ment board or its supervisory board, the Chief Executive Officer, the President
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee.
"Consolidated Coverage Ratio" of any Person on any date of
determi nation (the "Transaction Date") means the ratio, on a pro forma basis,
of (a) the aggregate amount of Consolidated EBITDA of such Person attributable
to continuing operations and businesses (exclusive of amounts attributable to
operations and business permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consoli dated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date
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(and the application of the proceeds therefrom to the extent used to refinance
or retire other Indebtedness) shall be assumed to have occurred on the first day
of such Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attribut able to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of compu tation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Invested Equity Capital" means, with respect to
any Person as of any date, the sum of the Invested Equity Capital of such Person
as of such date and, without duplication, the Invested Equity Capital of each of
its Subsid iaries as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Subsidiary of such Person shall
not include any amounts that would be included in the Consolidated Invested
Equity Capital of any equity owner of such Subsidiary, to the extent that such
amounts were utilized by such equity owner prior to such date to permit the
incurrence of Indebtedness pursuant to clauses 2(iii) and (c)(3) of Section
10.11. For example, if a direct Subsidiary of the Com pany has Consolidated
Invested Equity Capital of $100 and incurs $225 of such Indebtedness, then a
direct or indirect Subsidiary of such Subsidiary will not be deemed to have any
Invested Equity Capital based on contributions or loans to it by such first
Subsidiary. In addition, the Invested Equity Capital of a Subsidiary of a Person
will never be considered to be greater than the Invested Equity Capital of such
Person, except as a result of contributions of Invested Equity Capital to such
Subsidiary by third parties.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of the Subsidiaries with those of such Person, all
in accordance with GAAP; provided that "Consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of such Person. The term "Consol idated" has a correlative meaning to the
foregoing.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Consolidated Net Income of such Person for such period adjusted
to add
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thereto (to the extent deducted from net revenues in determining Consolidated
Net Income), without duplication, the sum of
(1) Consolidated income tax expense,
(2) Consolidated depreciation and amortization expense,
(3) Consolidated Fixed Charges, and
(4) non-cash stock-based compensation,
less the amount of all cash payments made by such Person or
any of its Subsidiaries during such period to the extent such payments relate to
non-cash charges that were added back in determining Consolidated EBITDA for
such period or any prior period; provided that Consolidated income tax expense,
depreciation and amortization of a Subsidiary that is not a Wholly Owned
Subsidiary shall only be added to the extent of the equity interest of such
Person in such Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any
period, the aggregate amount (without duplication and determined in each case in
accor dance with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with
the following sentence, interest attributable to Capitalized
Lease Obligations) of such Person and its Consolidated
Subsidiaries during such period, including (1) original issue
discount and non-cash interest payments or accruals on any
Indebtedness, (2) the interest portion of all deferred payment
obligations, and (3) all commissions, discounts and other fees
and charges owed with respect to bankers' acceptances and
letters of credit financings and currency and Interest Swap
and Hedging Obligations, in each case to the extent
attributable to such period,
(b) the amount of dividends accrued or payable (or guaranteed)
by such Person or any of its Consolidated Subsidiaries in
respect of Preferred Stock (other than by Subsidiaries of such
Person to such Person or such Person's Wholly Owned
Subsidiaries).
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For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined in good faith by the Company to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP and (y) interest
expense attributable to any Indebtedness represented by the guaranty by such
Person or a Subsidiary of such Person of an obligation of another Person shall
be deemed to be the interest expense attributable to the Indebtedness
guaranteed.
"Consolidated Net Income" means, with respect to any Person
for any period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a Consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(a) all gains (but not losses) which are either extraordinary
(as determined in accordance with GAAP) or are nonrecurring
(including any gain from the sale or other disposition of
assets outside the ordi nary course of business or from the
issuance or sale of any capital stock),
(b) the net income, if positive, of any Person, other than a
Consol idated Subsidiary, in which such Person or any of its
Consolidated Subsidiaries has an interest, except to the
extent of the amount of any dividends or distributions
actually paid in cash to such Person or a Consolidated
Subsidiary of such Person during such period, but in any case
not in excess of such Person's pro rata equity interest share
of such Person's net income for such period,
(c) the net income or loss of any Person acquired in a pooling
of interests transaction for any period prior to the date of
such acquisi tion, and
(d) the net income, if positive, of any such Person's
Consolidated Subsidiaries to the extent that the declaration
or payment of dividends or similar distributions is not at the
time permitted by operation of the terms of its charter or
bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
such Consolidated Subsidiary other than this Indenture.
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<PAGE>
"Consolidated Subsidiary" means, for any Person, each
Subsidiary (excluding all Unrestricted Subsidiaries) of such Person (whether now
existing or hereafter created or acquired) the financial statements of which are
Consolidated for financial statement reporting purposes with the financial
statements of such Person in accordance with GAAP.
"Consolidated Tangible Assets" of any Person means the total
amount of assets less applicable reserves and other properly deductible items
which under GAAP would be calculated on a Consolidated balance sheet of the
Person and its Subsidiaries after deducting all goodwill, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which, in each
case under GAAP, would be included on such Consolidated balance sheet.
"Continuing Director" means during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Supervisory Board of the Company (together
with any new supervisory directors whose election by the shareholders was from a
list of candi dates drawn up by the holder or holders of the Company's priority
shares and new supervisory directors designated in or provided for in an
agreement regarding the merger, consolidation or sale, transfer or other
conveyance, of all or substantially all of the assets of the Company or the
Parent, if such agreement was approved by a vote of such majority of supervisory
directors).
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 5 Carmelite Street, London EC47 0PA, except that, with
respect to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corpo rate agency business shall be
conducted.
"Corporation" includes Corporations, associations, companies
and business trusts.
"Credit Agreement" means the loan and note issuance agreement
dated July 27, 1999 between certain Subsidiaries of the Company and Bank of
American International Limited, CIBC World Markets plc, Citibank, N.A.,
MeesPierson N.V., Paribas, The Royal Bank of Scotland plc, Toronto Dominion Bank
Europe Limited and The Toronto Dominion Bank, including any related notes,
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<PAGE>
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such agreement and/or related documents may be amended,
restated, supplemented, renewed, replaced or otherwise modified from time to
time whether or not with the same agent, trustee, representative lenders or
Holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof. Without
limiting the generality of the foregoing, the term "Credit Agreement" shall
include agreements in respect of Interest Swap and Hedging Obligations with
lenders party to the Credit Agreement and shall also include any amendment,
amendment and restatement, renewal, extension, restructuring, supple ment or
modification to any Credit Agreement and all refundings, refinancings and
replacements of any Credit Agreement, including any agreement:
(1) extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so
long as borrowers and guarantors may include one or more of
the Company and its Subsidiaries and their respective
successors and assigns,
(3) increasing the amount of Indebtedness incurred thereunder
or available to be borrowed thereunder; provided that on the
date such Indebtedness is incurred it would not be prohibited
by Section 10.11;or
(4) otherwise altering the terms and conditions thereof in a
man ner not prohibited by the other terms of this Indenture.
"CT Corporation System" has the meaning specified in Section
1.19.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the DTC or the Common Depositary, as the
case may be.
"Discount Notes" means the Company's $735,000,000 121/2%
Senior Discount Notes due 2009 issued pursuant to the Discount Notes Indenture.
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<PAGE>
"Discount Notes Indenture" means the Discount Notes Indenture,
dated as of July 30, 1999, between the Company and Citibank, N.A. as trustee.
"Disqualified Capital Stock" means (a) except as set forth in
clause (b), with respect to any Person, Equity Interests of such Person that, by
its terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time or both would be, required to be redeemed or repurchased
(including at the option of the holder thereof) by such Person or any of its
Subsidiaries, in whole or in part, on or prior to 91 days following the Stated
Maturity of the Securities and (b) with respect to any Subsidiary of the
Company, any Equity Interests of such Subsidiary other than (i) any common
equity with no economic preference, privileges, or redemption or repayment provi
sions or (ii) preferred stock convertible into such common equity of such
Subsidiary with no payment of dividends or liquidation preference due or payable
thereon on or prior to 91 days following the Stated Maturity of the Securities.
"Dollar Denominated Securities" means the $800,000,000 107/8%
Senior Notes, together with the Exchange Dollar Denominated Securities.
"Dollars" or "$" or "U.S. Dollars" means the lawful currency
of the United States of America and, in relation to any amount to be advanced or
paid under this Indenture or the Securities, funds having immediate value.
"Dollar Paying Agent" means an office or agency of the Company
where Dollar Denominated Securities may be presented for payment.
"Dollar Registrar" means an office or agency of the Company in
London, where Dollar Denominated Securities may be presented for registration of
transfer or exchange.
"DTC" means the Depository Trust Company, its nominees and
successors.
"EEA Government Obligation" means direct non-callable
obligations of, or non-callable obligations guaranteed by, any member nation of
the European Union for the payment of which obligation or guarantee the full
faith and credit of the respective nation is pledged; provided that such nation
has a credit rating at least equal to that of the highest rated member nation of
the European Economic Area.
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"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership, participation or membership interests in, such Person.
"Equity Offering" means (i) an underwritten public offering or
floatation of ordinary shares of the Company which has been registered under the
Securities Act, or admitted to listing on the Amsterdam Stock Exchange or its
equivalent in any other European Union jurisdiction, in any case resulting in
Net Cash Proceeds to the Company of at least $100,000,000 (or its foreign
currency equivalent), or (ii) a sale of Qualified Capital Stock of the Company
to any Person which is (or a controlled Affiliate of a Person which is), engaged
principally in a Related Business, resulting in Net Cash Proceeds to the Company
of at least $100,000,000 (or its foreign currency equivalent); provided,
however, that a sale of Qualified Capital Stock of the Company to any subsidiary
of the Company or any Person that is a controlled Affiliate of the Company shall
not be an Equity Offering.
"Euro" or "(U)" means the currency adopted by those countries
participating in the third stage of European monetary union.
"Euro Denominated Securities" means the (U)300,000,000 107/8%
Senior Notes, together with the Exchange Euro Denominated Securities.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"European Economic Area" means the member nations of the Euro
pean Economic Area pursuant to the Oporto Agreement on the European Economic
Area dated May 2, 1992 as amended.
"European Union" means the member nations to the third stage
of economic and monetary union pursuant to the treaty of Rome establishing the
European Community, as amended by the Treaty on European Union, signed at
Maastricht on February 7, 1992.
"Euro Paying Agent" means an office or agency of the Company
where Euro Denominated Securities may be presented for payment.
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<PAGE>
"Euro Registrar" means an office or agency of the Company
where Euro Denominated Securities may be presented for registration of transfer
or exchange.
"Event of Default" has the meaning set forth under Section
5.1.
"Event of Loss" means, with respect to any property or asset,
any (1) loss, destruction or damage of such property or asset or (2) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended (or any successor act), and the rules and regulations
thereunder (or respective successors thereto).
"Exchange Dollar Denominated Securities" means the Dollar
Denom inated Securities to be issued pursuant to this Indenture in connection
with the offer to exchange Securities for Initial Securities that may be made by
the Company pursuant to the Registration Rights Agreement.
"Exchange Euro Denominated Securities" means the Euro Denomi
nated Securities to be issued pursuant to this Indenture in connection with the
offer to exchange Securities for Initial Securities that may be made by the
Company pursuant to the Registration Rights Agreement.
"Exchange Offer" means the exchange registered with the SEC to
exchange Initial Securities for Exchange Securities pursuant to the terms of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Exchange Dollar Denominated
Securities and the Exchange Euro Denominated Securities.
"Exempted Affiliate Transaction" means (i) Restricted Payments
comprised of pro rata dividends paid in cash on any class of Equity Interests
and made in compliance with this Indenture, (ii) transactions, at arms-length
and as so set forth in a Board Resolution, between or among holders of any
Equity Interest of any
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<PAGE>
Subsidiary of the Company and such Subsidiary, so long as such holder is not
otherwise an Affiliate of the Company, (iii) transactions between or among the
Company, and its Subsidiaries, (iv) the Company or any of its Subsidiaries
entering into or performing any employment agreement, stock option agreement or
other agreement relating to the terms of employment, compensation or termination
of employment in the ordinary course of business of the Company or such
Subsidiary, (v) any contract, agreement, arrangement or transaction with any
Affiliate in effect as of the Issue Date and any amendment, waiver, variation or
other modification in respect of any such contract, agreement, arrangement or
transaction so long as such amendment, waiver, variation or other modification
is not disadvantageous to the Company and its Subsidiaries in any material
respect, (vi) Restricted Payments and Investments permitted under Section 10.12,
(vii) transactions with customers, clients, suppliers, or purchasers or sellers
of goods or services, in each case in the ordinary course of business and
otherwise in compliance with the terms of this Indenture which are fair to the
Company and its Subsidiaries, in the reasonable determination of the Company or
Subsidiary, as the case may be, or are on terms no less favorable to the Company
or the Subsidiary than those that could be obtained in a comparable arm's length
transaction with an entity that is not an Affiliate or Principal and is in the
best interests of the Company or the Subsidiary, and (viii) transactions with
respect to network capacity or dark or lit communications fiber capacity or
telecom munications conduit between the Company or any Subsidiary and any
Unrestricted Subsidiary or other Affiliate and joint sales and marketing
pursuant to an agreement or agreements between the Company or any Subsidiary and
any Unrestricted Subsidiary or other Affiliate, provided that in the case of
this clause (viii), such agreements are on terms that are no less favorable to
the Company or the Subsidiary than those that could be obtained in an
arm's-length transaction with an entity that is not an Affiliate or Principal
and are in the best interests of the Company and the Subsidiary entered into in
the ordinary course of business.
"Existing Agreements" means (i) any and all instruments, as in
effect on the Issue Date, between the Company or any of its Subsidiaries and a
commercial lending institution or institutions, which makes borrowing of funds
available to the Company or any such Subsidiary from such institution or
institutions and (ii) any replacements of the instruments in clause (i) entered
into by the respective Subsid iary that was party to the instrument so replaced
or their respective successors and a commercial lending institution or
institutions for an amount up to the maximum amount of the instrument so
replaced.
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<PAGE>
"Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date, reduced to the extent such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"GAAP" means United States generally accepted accounting
princi ples set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as approved by a significant segment
of the account ing profession in the United States as in effect on the Issue
Date.
"Global Security" means a Regulation S Global Security (or
Unrestricted Global Security) or a Restricted Global Security.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrange ments, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term "Guaran tee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as verb has a corresponding meaning.
"Guarantor" is defined to mean any Person obligated under a
Guarantee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" of any Person means, without duplication,
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<PAGE>
(a) all liabilities and obligations, contingent or otherwise,
of any Person, to the extent such liabilities and obligations
would appear as a liability upon the Consolidated balance
sheet of such Person in accor dance with GAAP, (1) in respect
of borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a
portion thereof), (2) evidenced by bonds, notes, deben tures
or similar instruments, (3) representing the balance deferred
and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to
trade creditors which have remained unpaid for greater than 90
days past their original due date) those incurred in the
ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors;
(b) all liabilities and obligations, contingent or otherwise,
of such Person (1) evidenced by bankers' acceptances or
similar instruments issued or accepted by banks, (2) relating
to any Capitalized Lease Obligation, or (3) evidenced by a
letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit (other than obligations
with respect to letters of credit securing obligations (other
than obligations described in (a)(1) through (3) above)
entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon);
(c) all net obligations of such Person under Interest
Swap and Hedging Obligations;
(d) all liabilities and obligations of others of the kinds
described in the preceding clauses (a), (b) or (c) that such
Person has guaranteed or provided credit support or that is
otherwise its legal liability or which are secured by any
assets or property of such Person;
(e) any and all deferrals, renewals, extensions, refinancing
and refundings (whether direct or indirect) of, or amendments,
modifica tions or supplements to, any liability of the kind
described in any of the preceding clauses (a), (b), (c) or
(d), or this clause (e), whether or not between or among the
same parties; and
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<PAGE>
(f) all Disqualified Capital Stock of such Person (measured at
the greater of its voluntary or involuntary maximum fixed
repurchase price, plus accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the
terms of such Disqual ified Capital Stock as if such
Disqualified Capital Stock were pur chased on any date on
which Indebtedness shall be required to be determined pursuant
to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good
faith by the Supervisory Board of the Company.
The amount of any Indebtedness outstanding as of any date
shall be (1) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount, but the
accretion of original issue dis count in accordance with the
original terms of Indebtedness issued with an original issue
discount will not be deemed to be an incurrence and (2) the
principal amount thereof, excluding any interest thereon, in
the case of any other Indebtedness.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional
"Accredited Investor", as defined in Regulation D of the Securities Act.
"Initial Purchasers" means, with respect to the Initial
Securities issued pursuant to this Indenture on the Issue Date, each of Goldman
Sachs International, Donaldson, Lufkin & Jenrette International, Morgan Stanley
& Co. International Limited, TD Securities (USA) Inc., Bank of America
International Limited, Chase Manhattan International Limited, CIBC World Markets
Corp., Credit Suisse First Boston (Europe) Limited, Merrill Lynch International
and Salomon Brothers International Limited.
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<PAGE>
"Initial Securities" means the $800,000,000 107/8% Senior
Notes due 2009 and the (U)300,000,000 107/8% Senior Notes due 2009, issued under
this Indenture on the Issue Date.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Invested Equity Capital" means, with respect to any Person as
of any date, without duplication, the sum of (i) the total dollar amount
contributed in cash plus the value of all property contributed (valued at fair
market value at the time of contribution, determined in good faith by the
Supervisory Board) to such Person since the date of its creation in the form of
common equity, plus, (ii) the total dollar amount contributed in cash plus the
value of all property contributed (valued at fair market value at the time of
contribution, determined in good faith by the Supervisory Board) to such Person
since the date of creation by the holders of its common equity (and their
Affiliates) in consideration of the issuance of preferred equity or Indebted
ness, on a basis that is substantially proportionate to their common equity
interests (with any disproportionately large equity interests received by the
Company or a Subsidiary relative to their respective contributions being ignored
for this purpose), plus, (iii) the total dollar amount contributed in cash plus
the value of all property contributed (valued at fair market value at the time
of contribution, determined in good faith by the Supervisory Board) to such
Person since the date of its creation by the Company or a Wholly Owned
Subsidiary of the Company in consideration of the issuance of preferred equity
or Indebtedness, and less (iv) the value of all interest, returns in respect of
Indebtedness, dividends and other distributions (in whatever form and however
designated, valued at fair market value as determined in good faith by the
Supervisory Board) made by such Person since the date of its creation to the
holders of its common equity (and their Affiliates); provided that in no event
shall
20
<PAGE>
the aggregate amount of interest, dividends and other distributions made to any
holder of common equity of a Person (or its Affiliates) operate to reduce the
Invested Equity Capital of such Person by more than the total contributions to
such Person (per clauses (i) through (iii) above) by such equity holder (and its
Affiliates).
"Investment" by any Person in any other Person means (without
duplication):
(a) the acquisition (whether by purchase, merger,
consolidation or otherwise) by such Person (whether for cash,
property, services, securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership
interests or other securities, including any options or
warrants, of such other Person or any agreement to make any
such acquisition;
(b) the making by such Person of any deposit with, or advance,
loan or other extension of credit to, such other Person
(including the purchase of property from another Person
subject to an understanding or agreement, contingent or
otherwise, to resell such property to such other Person) or
any commitment to make any such advance, loan or extension
(but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of
business);
(c) other than guarantees of Indebtedness of the Company or to
the extent permitted by Section 10.11, the entering into by
such Person of any guarantee of, or other credit support or
contingent obligation with respect to, Indebtedness or other
liability of such other Person;
(d) the making of any capital contribution by such Person
to such other Person; and
(e) the designation by the Supervisory Board of the Company of
any Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount
equal to the fair market value of the net assets of any
Subsidiary (or, if neither the Company nor any of its
Subsidiaries has theretofore made an Investment in such
subsidiary, in an amount equal to the Invest ments being
made), at the time that such Subsidiary is designated an
Unrestricted Subsidiary, and any property transferred to an
Unre stricted Subsidiary from the Company or a Subsidiary of
the Com pany shall be deemed an Investment valued at its fair
market value at the time of such transfer. Investments shall
be measured by the fair market value attributed to the
Investment at the time made or re turned, as applicable.
"Issue Date" means the date of first issuance of the Initial
Securities hereunder.
"Leverage Ratio" on any date of determination (the
"Transaction Date") for any Person means the ratio, on a pro forma basis, of (a)
the aggregate amount of Indebtedness of such Person and its Subsidiaries on a
Consolidated basis to (b) the aggregate amount of Annualized Consolidated EBITDA
of such Person attributable to continuing operations and business (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of); provided that for purposes of calculating Annualized Consolidated
EBITDA for this definition,
(1) acquisitions which occurred during the Reference
Period or subsequent to the Reference Period and on
or prior to the Transaction Date shall be assumed to
have occurred on the first day of the Reference
Period,
(2) transactions giving rise to the need to calculate the
Leverage Ratio shall be assumed to have occurred on
the first day of the Reference Period,
(3) the incurrence of any Indebtedness or issuance of any
Disqual ified Capital Stock during the Reference
Period or subsequent to the Reference Period and on
or prior to the Transaction Date (and the application
of the proceeds therefrom to the extent used to
refinance or retire other Indebtedness) shall be as
sumed to have occurred on the first day of the
Reference Period, and
(4) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or
dividends on any Disqualified Capital Stock bearing a
floating interest (or dividend) rate
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shall be computed on a pro forma basis as if the
average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the
applicable rate for the entire period, unless such
Person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall
remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect
of fixing the interest rate on the date of
computation, in which case such rate (whether higher
or lower) shall be used.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired. For purposes of this definition, the
sale, lease, conveyance, or other transfer by the Company or any Subsidiary of
the Company, in the ordinary course of its business and not constituting a
security interest in assets serving as collateral for any of their respective
obligations, including the granting of indefeasible rights of use or equivalent
arrangements with respect to, network capacity, communications fiber capacity or
conduit, shall not be a Lien.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declara tion of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Qualified Capital Stock and by the Company and its
Subsidiaries in respect of an Asset Sale, plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after the Issue Date, the amount of
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary) expenses (including, without limitation,
the fees and expenses of legal counsel and
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investment banking fees and expenses) incurred in connection with such Asset
Sale or sale of Qualified Capital Stock, and, in the case of an Asset Sale only,
less the amount (estimated reasonably and in good faith by the Company) of
income, franchise, sales and other applicable taxes required to be paid by the
Company or any of its respective Subsidiaries in connection with such Asset Sale
in the taxable year that such sale is consummated or in the immediately
succeeding taxable year, the computation of which shall take into account the
reduction in tax liability resulting from any available operating losses and net
operating loss carryovers, tax credits and tax credit carryforwards, and similar
tax attributes.
"New Acquisitions" means the acquisition by the Company or its
subsidiaries of @Entertainment, Inc., A2000 Holding N.V., Time Warner Cable
France S.A., Reseaux Cables de France S.A., Videopole S.A., Kabel Plus, a.s.,
SBS Broadcasting S.A., GelreVision N.V., SKT spol. s.r.o. and NBS Broadband
Services AB, all substantially as described in the Offering Circular (and each
such Person's respective subsidiaries).
"Non-Recourse Indebtedness" means Indebtedness of a Person to
the extent that under the terms thereof and pursuant to applicable law, no
personal recourse could be had against the Company or its Subsidiaries (giving
effect to the designations of such Person as an Unrestricted Subsidiary) for the
Payment of the principal of or interest or premium or other amounts with respect
to such Indebted ness or for any claim based on such Indebtedness and that
enforcement of obligations on such Indebtedness is limited solely to recourse
against interests in specified assets.
"Obligation" means any principal, premium or interest payment,
or monetary penalty, or damages, due by the Company under the terms of the
Securities or this Indenture, including any Liquidated Damages due pursuant to
the terms of the Registration Rights Agreement.
"Offering" means the offering of the Securities by the
Company.
"Offering Circular" means the offering memorandum dated July
27, 1999, pursuant to which the Securities were offered and sold.
"Officers' Certificate" means a certificate signed by a member
of the Company's management board or its Supervisory Board, the Chief Executive
Officer or a Vice President, and by the Chief Financial Officer, the Chief
Accounting
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Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee in the form substantially similar to Exhibit F attached hereto, which
shall comply with the Indenture, except in the case of an authentication order
pursuant to Section 3.3, which must only be signed by one of the above noted
persons.
"Opinion of Counsel" means an opinion of counsel in the form
substantially similar to Exhibit G attached hereto, who may be counsel to the
Company, including an employee of the Company.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture;
(iii) Securities, except to the extent provided in
Sections 12.2 and 12.3, with respect to which the Company has effected
Defeasance and/or Covenant Defeasance as provided in Article Twelve;
and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securi ties
are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
24
<PAGE>
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which any
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfac tion of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Parent" means UnitedGlobalCom, Inc. and its successor(s).
"Parent Stock Instrument" means either (a) Indebtedness
(including Disqualified Capital Stock) and Qualified Capital Stock of the
Company that is convertible or exchangeable into, at the option of the Company
or any holder thereof, or secured by, or whose value to the holder thereof is
dependent upon any shares of Parent's Capital Stock that are owned by the
Company or any of its Subsidiaries as of the Issue Date; provided that such
Indebtedness and Capital Stock of the Company shall have been issued in
consideration of cash, the net proceeds of which shall have been received by the
Company or (b) the Class A Common Stock of Parent owned by the Company or any of
its Subsidiaries as of the Issue Date or any like number of shares of Class B
Common Stock of Parent issued in exchange for the shares of the Class A Common
Stock of Parent held as of the Issue Date.
"Participants" means (i) with respect to the Dollar
Denominated Securities, institutions that have accounts with DTC or its nominee
and (ii) with respect to the Euro Denominated Securities, institutions that have
accounts with Euroclear or Cedelbank or their respective nominees.
"Paying Agent" means any Person (including the Company acting
as Paying Agent) authorized by the Company to pay the principal of (and premium,
if any) or interest on any Securities on behalf of the Company.
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<PAGE>
"Payment Date" means any date on which a payment of principal,
premium, if any, interest (or Liquidated Damages, if any) is due to be paid on
any of the Securities.
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Secu
rities and issued pursuant to this Indenture and Indebtedness
evi denced by the Discount Notes and issued pursuant to the
Discount Notes Indenture up to the amounts being issued on the
original Issue Date;
(b) the Company may incur Refinancing Indebtedness with
respect to any Indebtedness (including Disqualified Capital
Stock), described in clause (a) or this clause (b) of this
definition or incurred pursuant to clause (1)(ii) of Section
10.11, and any Subsidiary may incur Refinancing Indebtedness
(including Disqualified Capital Stock), described in this
clause (b) or clause (2)(c) of Section 10.11 and the Company
and its Subsidiary may incur Refinancing Indebted ness with
respect to Indebtedness which is outstanding on the Issue Date
(after giving effect to the New Acquisitions) (less the amount
of any such Existing Indebtedness repaid on or after the Issue
Date or which was refinanced pursuant to this clause (b));
(c) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit
and perfor mance and surety bonds and completion guarantees
(to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating
to borrowed money of others), all in the ordinary course of
business in accordance with customary industry practices, in
amounts and for the purposes customary in the Com pany's
industry;
(d) the Company may incur Indebtedness to any Subsidiary, and
any Subsidiary may incur Indebtedness to any other Subsidiary
or to the Company; provided that in the case of Indebtedness
of the Com pany, such obligations shall be unsecured and
subordinated in all respects to the Company's obligations
pursuant to the Securities and the Discount Notes and any
event that causes such Subsidiary no
26
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longer to be a Subsidiary (including by designation to be an
Unre stricted Subsidiary) shall be deemed to be a new
incurrence of such Indebtedness, if then outstanding, subject
to Section 10.11;
(e) the Company and its Subsidiaries may incur Interest Swap
and Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate or currency risk with respect
to any fixed or floating rate Indebtedness that is permitted
by this Indenture to be outstanding or any receivable or
liability the payment of which is determined by reference to a
foreign currency; provided that the notional amount of any
such Interest Swap and Hedging Obligation does not exceed the
principal amount of Indebtedness to which such Interest Swap
and Hedging Obligation relates;
(f) the Company and its Subsidiaries may guarantee
Indebtedness of any of the Company's Subsidiaries, provided
that the incurrence of such Indebtedness by such Subsidiary is
permitted under this Inden ture; and
(g) Subsidiaries of the Company may issue preferred stock or
Indebtedness to the holders (or their Affiliates) of the
common equity of such Subsidiary on a basis that is
substantially proportionate to their common equity interests
(with any disproportionately large equity interests received
by the Company or a Subsidiary of the Company relative to
their respective contributions being ignored for this
purpose).
"Permitted Investment" means:
(a) Cash Equivalents;
(b) intercompany Indebtedness to the extent permitted under
clause (d) of the definition of "Permitted Indebtedness";
(c) an Investment by the Company or a Subsidiary of the Com
pany in a Person engaged primarily in a Related Business if as
a result of such Investment such Person becomes a Subsidiary
of the Com pany or is merged with or into the Company or a
Subsidiary of the
27
<PAGE>
Company, so long as the surviving entity is the Company or a
Subsidiary of the Company;
(d) an Investment in any Subsidiary of the Company;
(e) other Investments in any Person or Persons engaged
primarily in a Related Business with respect to which the
Company maintains the power to influence or participate in the
management of such Person by virtue of representation on such
Person's board or directors or through a contractual
relationship with such Person or its holders of Capital Stock;
(f) other Investments in any Person or Persons engaged
primarily in a Related Business with respect to which the
Supervisory Board of the Company or of the relevant Subsidiary
determines in its good faith reasonable judgement that the
Company or any of its Subsidiaries will receive as a result of
such Investment commensurate network services benefits
(including by becoming a customer, client, supplier, pur
chaser or seller of goods or services of or to such Person or
Persons) from the arrangements entered into as a result of
such Investment;
(g) other Investments in any Person or Persons engaged
primarily in a Related Business; provided that, after giving
pro forma effect to each such Investment, the amount of all
such Investments made solely in reliance upon this clause (g)
on and after the Issue Date that are Outstanding at any time
does not exceed in the aggregate $100,000,000 (or the foreign
currency equivalent thereof measured on the date of the making
of such Investment), plus, unless such amounts shall have been
credited under clause (3) of Section 10.12 and utilized to
make a Restricted Payment, (w) the amount of the Net Cash Pro
ceeds to the Company from the sale of Qualified Capital Stock
(other than (i) to a Subsidiary of the Company, and (ii) to
the extent applied in a Qualified Exchange), (x) an amount
equal to 50% of the Net Cash Proceeds from Special Character
Asset Sales, (y) an amount equal to the Net Cash Proceeds to
the Company or any of its Subsidiaries of any sale of
securities constituting a Parent Stock Instrument (other than
(i) to a Subsidiary of the Company, and (ii) to the extent
applied in connection with a Qualified Exchange) and (z) the
amount of Investments made pursuant to this clause (g) after
the Issue Date that
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<PAGE>
are returned to the Company or any Subsidiary on or prior to
the date of any such calculation, which amount shall be the
lesser of (i) the amount of the cash invested plus the value
of all noncash investments (valued at the fair market value at
the time of the Investment, deter mined in the good faith
reasonable judgment of the Company or the relevant Subsidiary)
and (ii) the amount of the Net Cash Proceeds received plus the
value of noncash proceeds received (valued at the fair market
value at the time of the return of such Investment, deter
mined in the good faith reasonable judgment of the Company or
the relevant Subsidiary);
(h) Investments made in the ordinary course of business as
partial or full payment for constructing a network relating
principally to a Related Business of the Company or any
Subsidiary;
(i) Investments solely in the form and consisting of Capital
Stock of the Company (other than Disqualified Capital Stock);
(j) any Investment acquired by the Company or any of its re
stricted Subsidiaries (a) in exchange for any other Investment
or accounts receivable held by the Company or any such
restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the
issuer of such other invest ment or accounts receivable or (b)
as a result of a foreclosure by the Company or any of its
restricted Subsidiaries with respect to any secured Investment
or other transfer of title with respect to any se cured
Investment in default;
(k) an Investment in prepaid expenses and lease, utility and
workers' compensation, performance and other similar deposits
in the ordinary course of business;
(l) loans, advances, or extensions of credit to employees,
officers, directors made in the ordinary course of business;
and
(m) the net obligations of any counterparty under Interest
Swap and Hedging Obligations obtained in conformity with
industry prac tices.
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<PAGE>
(n) Investments in SBS Broadcasting S.A. not to exceed the
amounts required to be made by the Company pursuant to the
Invest ment Agreement by and between, SBS Broadcasting S.A.,
the Com pany and United International Holdings Inc., dated
June 29, 1999, relating to the acquisition by the Company of
Equity Interests in SBS Broadcasting S.A.; and
(o) Investments, directly or indirectly, in ARA Cable
Services Inc. or ARA Programming & Distribution Ltd. of Saudi
Arabia, not to exceed $75,000,000.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Liens securing the Securities or the Discount Notes;
(c) Liens securing Indebtedness, or any agreement (including
any Equity Interest) relating to any property, asset, or
business acquired, of a Person existing at the time such
Person becomes a Subsidiary (including by designation) or is
merged with or into the Company or a Subsidiary or Liens
securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior
to the date of such acquisition, merger or consolidation, were
not incurred in anticipation thereof, and do not extend to any
other assets than those of the Person (or its businesses)
being acquired (or so designated);
(d) leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with
the conduct of the business of the Company or any of its
Subsidiaries or materially detracting from the value of the
relative assets of the Company or any Subsidiary;
(e) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered
into by the Company or any of its Subsidiaries in the ordinary
course of business;
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<PAGE>
(f) Liens securing Refinancing Indebtedness incurred to refi
nance any Indebtedness that was previously so secured in a
manner no more adverse to the Holders of the Securities than
the terms of the Liens securing such refinanced Indebtedness,
provided that the In debtedness secured is not increased and
the Lien is not extended to any additional assets or property
that would not have been security for the Indebtedness
refinanced;
(g) Liens securing Indebtedness incurred under the Credit
Agree ment and other Indebtedness solely of Subsidiaries of
the Company incurred in accordance with the terms of this
Indenture; and
(h) Liens in favor of the Company or Liens on assets of
Subsidiar ies of the Company in favor of other such
Subsidiaries.
(i) Liens securing Refinancing Indebtedness that complies with
the definition of "Refinancing Indebtedness";
(j) Liens securing Acquired Indebtedness and Indebtedness
assumed in acquiring Related Assets, provided that such Liens
were not put in place in contemplation of the incurrence by
the Company or its Subsidiaries of such Indebtedness, such
Liens do not extend to any property or assets of the Company
or any of its Subsidiaries other than those acquired in
connection therewith, and the Investment that is the subject
of such acquisition is a Permitted Investment;
(k) statutory liens of carriers, warehousemen, mechanics,
material men, landlords, repairmen or other like Liens arising
by operation of law in the ordinary course of business,
provided that (1) the underly ing obligations are not overdue
for a period of more than 30 days, or (2) such Liens are being
contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the
books of the Company in accordance with GAAP; and
(l) Liens not otherwise permitted by this Indenture in an
amount not to exceed 5% of the Company's Consolidated Tangible
Assets.
"Person" means any Corporation, individual, limited liability
com pany, joint stock company, joint venture, partnership, limited liability
partnership,
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unincorporated association, governmental regulatory entity, country, state or
political subdivision thereof, trust, municipally or other entity.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.6 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" means any Equity Interest of any class or
classes of a Person (however designated) which is preferred as to payments of
dividends, or as to distributions upon any liquidation or dissolution, over
Equity Interests of any other class of such Person.
"Principals" means Albert M. Carollo, Lawrence F. DeGeorge,
Lawrence J. DeGeorge, Curtis Rochelle, Marian Rochelle, Rochelle Investments,
Ltd. (so long as it is controlled by Curtis or Marian Rochelle), Gene W.
Schneider, G. Schneider Holdings, Co. and The Gene W. Schneider Family Trust (so
long as each is controlled by Gene W. Schneider or trustees appointed by him),
Janet S. Schneider, Mark L. Schneider, Apollo Cable Partners, L.P., and with
respect to any such Person means: (A) any controlling stockholder or 80% (or
more) owned Subsidiary of such Person, or with respect to each individual
Person, (i) family partnerships, Corporations or other entities holding Equity
Interests in the Company, the transferee(s) or the surviving entities or
entities solely for the benefit of such Person or any of the Persons listed in
(ii), (iii), (iv) or (v) below, (ii) such Person's spouse, (iii) such Person's
children, grandchildren, stepchildren, step grandchildren and their spouses,
(iv) heirs, legatees and devisees, and (v) trusts solely for the benefit of any
of the foregoing; or (B) any trust Corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such Person and/or such
other Persons referred to in the immediately preceding clause (A).
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"Purchase Money Indebtedness" of any Person means any Indebted
ness of such Person to any seller or other Person incurred solely to finance the
acquisition (including in the case of a Capitalized Lease Obligation, the
lease),
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construction, installation or improvement of any after acquired real or personal
tangible property which, in the reasonable good faith judgment of the
Supervisory Board of the Company, is directly related to a Related Business.
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement, repurchase
or other acquisition of Capital Stock, or Indebtedness of the
Company issued on or after the Issue Date with the Net Cash
Proceeds received by the Company from the substantially
concurrent sale of its Qualified Capital Stock or, to the
extent used to retire Indebtedness (other than Disqualified
Capital Stock) of the Company issued on or after the Issue
Date, Subordinated Indebtedness of the Company,
(b) any exchange of Qualified Capital Stock of the Company for
any Capital Stock or Indebtedness of the Company issued on or
after the Issue Date, or
(c) any issuance of Subordinated Indebtedness of the Company
in exchange for Indebtedness (other than Disqualified Capital
Stock) of the Company issued on or after the Issue Date.
"Qualified Institutional Buyer" or "QIB" has the meaning
specified in Rule 144A.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the full
fiscal quarter ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Securities or this Indenture, for
which Consoli dated financial statements of the Company are available.
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<PAGE>
"Refinancing Indebtedness" means Indebtedness (including
Disquali fied Capital Stock) (a) issued in exchange for, or the proceeds from
the issuance and sale of which are used substantially concurrently to repay,
redeem, defease, refund, refinance, discharge or otherwise retire for value, in
whole or in part, or (b) constitut ing an amendment, modification or supplement
to, or a deferral or renewal of ((a) and (b) above are, collectively, a
"Refinancing"), any Indebtedness (including Disqualified Capital Stock and
Refinancing Indebtedness) in a principal amount (or, if issued with an original
issue discount, an original accreted value, determined in accordance with GAAP)
or, in the case of Disqualified Capital Stock, liquidation preference, not to
exceed (after deduction of reasonable and customary fees and expenses incurred
in connection with the Refinancing and the amount of any premium paid in
connection with such Refinancing in accordance with the terms of the documents
governing the Indebtedness (including Disqualified Capital Stock and Refinancing
Indebtedness) refinanced without giving effect to any modification thereof made
in connection with or in contemplation of such refinancing) the lesser of (1)
the principal amount or, in the case of Disqualified Capital Stock, liquidation
preference, of the Indebtedness (including Disqualified Capital Stock and
Refinanc ing Indebtedness) so Refinanced and (2) if such Indebtedness being
Refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such Refinancing;
provided that (A) such Refinancing Indebtedness shall only be used to refinance
Outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness (except that the Company may refinance
Outstanding Indebtedness of a Subsidiary), (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refi nanced at the time of such Refinancing
and (y) in all respects, be no less contractu ally subordinated or junior, if
applicable, to the rights of Holders of the Securities than was the Indebtedness
(including Disqualified Capital Stock) to be refinanced, (C) such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as
applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced, and (D) such Refinancing Indebtedness shall be secured (if secured)
in a manner no more adverse to the Holders of the Securities than the terms of
the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof, between the Initial Purchasers and the Company.
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"Registration Statement" means the Registration Statement as
defined in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in
Section 3.3.
"Related Assets" means all assets, rights, contractual or
otherwise, and properties, whether tangible or intangible, used or intended for
use in connection with a Related Business; provided that Related Assets shall
not include any Equity Interests or indebtedness of, or interests in, any
Person.
"Related Business" means the business of constructing,
creating, developing, marketing or operating one or more cable, telephone or
communications systems, including, without limitation, any system for
transmitting, or providing service or product for the transmission of, voice,
video or data through transmission facilities, Internet service providers or any
business reasonably related to any of the foregoing and any business conducted
by the Company or any Subsidiary of the Company on the Issue Date; provided that
the determination of what constitutes a Related Business shall be made in good
faith by the Supervisory Board of the Company.
"Related Business Acquisition" means an Asset Acquisition of
(i) properties or assets to be used in a Related Business, (ii) of the Capital
Stock of any Person that becomes a restricted Subsidiary as a result of such
Asset Acquisition or (iii) of the Capital Stock of any Person that becomes an
Unrestricted Subsidiary as a result of such Asset Acquisition, but only if such
Asset Acquisition would be permitted pursuant to Section 10.12 or as a Permitted
Investment; provided that, in the case of clauses (ii) and (iii), such Person's
assets and properties consist princi pally of properties or assets that will be
used in a Related Business.
"Replacement Assets" means property or assets that will be
used in a Related Business of the Company or any Subsidiary and Equity Interests
of a Person that becomes a Subsidiary of the Company.
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"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice-president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
mater is referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Dollar Denominated Global Security" means a
Restricted Global Security representing Dollar Denominated Securities.
"Restricted Euro Denominated Global Securities" means a
Restricted Global Security representing Euro Denominated Securities.
"Restricted Global Security" has the meaning specified in
Section 3.3.
"Restricted Investment" means, in one or a series of related
transac tions, any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other
distribu tion in respect of Equity Interests of such Person or
any parent or Subsidiary of such Person,
(b) any payment on account of the purchase, redemption or
other acquisition or retirement for value of Equity Interests
of such Person or any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially
concurrent sale of, or in exchange for, Refinancing
Indebtedness, any purchase, redemption, or other acquisition
or retirement for value of, any pay ment in respect of any
amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such
Person or a parent or Subsidiary of such Person prior to the
scheduled maturity, any scheduled repayment of principal, or
scheduled sinking fund payment, as the case may be, of such
Indebtedness and
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(d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of a Person or the parent of such Person to the extent payable solely in shares
of Qualified Capital Stock of such Person, or (2) any dividend, distribution or
other payment to the Company or any of its Subsidiaries by the Company or any of
its Subsidiaries, or (3) any payment on account of the exchange of shares of
Common Stock of Parent for a like number of substantially identical (except with
regard to voting rights) shares of Common Stock of Parent, or (4) payments to or
for the account of the Stichting Administratiekantor UPC (the "Foundation") or
its successors of amounts related to taxes payable upon the grant of options to
certain employees in shares of the Company held by the Foundation, provided
that, for purposes of this clause (4), neither the Company nor any of its
Subsidiaries shall be liable to any Person in respect of such amounts, other
than for the payment of such amounts actually received or to be received by it,
to the Foundation.
"Restricted Period" means the period through and including the
40th day after the later of the commencement of the Offering and the Issue Date
of the Initial Securities.
"Restricted Securities" means Restricted Global Securities and
Regulation S Global Securities.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the United States Securities and Exchange
Commission.
"Securities" means, collectively, the "Securities" issued
under this Indenture, including the Initial Securities and the Exchange
Securities.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement.
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"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Special Character Asset Sale" means any Asset Sale solely
consisting of assets and property or interests therein comprising its interests
in chello broad band, UPC tv or Priority Telecom determined by the Company in
its good faith reasonable judgment.
"Stated Maturity," when used with respect to any Security or
any installment of interest on such Securities, means the date specified in the
Security as the fixed date on which any principal amount of the Security or the
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
that is subordinated in right of payment by its terms or the terms of any
document or instrument relating thereto to the Securities, in any respect or
when used in the definitions of Restricted Payment or Qualified Exchange has a
final stated maturity on (except for the Securities) or after the Stated
Maturity.
"Subsidiary," with respect to any Person, means (1) a
Corporation a majority of whose Equity Interests with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (2) any other Person
(other than a Corporation) in which such Person, one or more Subsidiaries of
such Person, or such Person and one or more Subsidiaries of such Person,
directly or indirectly, at the date of determination thereof has majority
ownership interest, or (3) a partnership in which such Person or a Subsidiary of
such Person is, at the time, a general partner and in which such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest. Notwithstanding the foregoing, an Unrestricted Subsidiary
shall not be a Subsidiary of the Company or of any Subsidiary of the Company.
Unless the context requires otherwise, Subsidiary means each direct and indirect
Subsidiary of the Company.
"Supervisory Board" means, with respect to any Person, the
supervi sory board of directors of such Person or any committee of the
supervisory board of
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directors of such Person authorized, with respect to any particular matter, to
exercise the power of the supervisory board of directors of such Person.
"TARGET" means the Trans-European Automated Real-time Gross
Settlement Express Transfer (TARGET) system.
"Tax" or "Taxes" means any and all present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, and all
liabilities with respect thereto, together with any penalties, interest, or
additions thereto.
"Tax Event" means that as a result of any change in or
amendment to the laws, treaties or regulations of any Taxing Authority (or any
official or adminis trative pronouncement or action or judicial decision)
interpreting or applying such laws, treaties or regulations where such change or
amendment is proposed and becomes effective on or after the Issue Date, in
making any payment due or to become due under the Securities, the Company is or
would be required on the next succeeding payment date to pay Additional Amounts
and the payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Company.
"Taxing Authority" means any nation or government or any
political subdivision thereof or any agency or instrumentality therein and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 9.5.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Global Security" has the meaning set forth in
Section 3.3(d).
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"Unrestricted Securities" means an Unrestricted Global
Security and all other Securities that are not Restricted Securities, including
Exchange Dollar Denominated Securities and Exchange Euro Denominated Securities.
"Unrestricted Subsidiary" means any subsidiary of the Company
that does not own any Equity Interest of, or own or hold any Lien on any
property of, the Company or any other Subsidiary of the Company and that, at the
time of determina tion, shall be an Unrestricted Subsidiary (as designated by
the Supervisory Board of the Company); provided that such Subsidiary at the time
of such designation (a) has no Indebtedness other than Non-Recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Subsidiary of the Company, unless the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Subsid iary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity Interests
or (y) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebtedness of the Company or any of its Subsidiaries. The Supervisory
Board of the Company may designate any Unrestricted Subsidiary to be a
Subsidiary, pro vided that (1) no Default or Event of Default is existing or
will occur as a conse quence thereof and (2) immediately after giving effect to
such designation, on a pro forma basis, the Company could incur at least $1.00
(or its foreign currency equiva lent) of Indebtedness pursuant to the Debt
Incurrence Ratio of Section 10.11. Each such designation shall be evidenced by
filing with the Trustee a certified copy of the resolution giving effect to such
designation and an Officer's Certificate certifying that such designation
complied with the foregoing conditions.
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
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"Wholly Owned Subsidiary" means a Subsidiary all the Equity
Interests of which (other than directors' qualifying shares) are owned by the
Com pany or one or more Wholly Owned Subsidiaries of the Company.
SECTION 1.2 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.9(a)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individ ual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or
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covered by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an opinion
with respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representa tions by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instru ments under this Indenture, they may, but need not, be Consolidated
(with proper identification of each matter covered therein) and form one
instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instru ments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
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(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Securities held
by any Person, and the date of holding the same, shall be proved by the Security
Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done,
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omitted or suffered to be done by the Trustee or the Company in reliance
thereon, whether or not notation of such action is made upon such Security.
SECTION 1.5 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, by facsimile and
confirmed by overnight courier, or mailed by first-class mail addressed as
follows:
if to the Company:
United Pan-Europe Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel and Treasurer
Facsimile: 31 20 778 9841
Telephone: 31 20 778 9840
with a copy to:
Holme, Roberts & Owen LLP
Heathcoat House
20 Savile Row
London W1X 1AE
England
Attention: Paul G. Thompson
Facsimile: 44 171 287 9344
Telephone: 44 171 494 5600
if to the Trustee or Paying Agent:
Citibank, N.A.
5 Carmelite Street
London EC47 0PA
Attention: Global Agency and Trust Services
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Facsimile: 44 171 508 3879
Telephone: 44 171 508 3815
if to the Luxembourg Paying and Transfer Agent:
Banque International a Luxembourg
69 route d'Esch
Luxembourg L-2953
c/o the Trustee
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders by the Company or the Trustee, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. As long as the Securities are
listed on the Luxembourg Stock Exchange and notice is required by the rules of
the Luxembourg Stock Exchange, such notice shall be sufficiently given by
publication of such notice to Holders of the Securities in English will be in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourg Wort) or, if such publication is not
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practicable, in one other leading English language daily newspaper with general
circulation in Europe, such newspaper being published on each business day in
morning editions, whether or not it shall be published in Saturday, Sunday or
holiday editions. In any case where notice to Holders is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders. Any notice mailed to a Holder in the manner herein prescribed
shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice. Where this Indenture provides for
notice in any manner, such notice may be waived in writing by the Person
entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants and agree
ments in this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Security Registrar and their
successors hereunder and the Holders any legal or equitable right, remedy or
claim under this Indenture.
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SECTION 1.11 Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the law of the State of
New York including without limitation Section 5-1401 and 5-1402 of the New York
General Obligation Law and New York Civil Practice Laws and Rules 327(b), as
applied to contracts made and performed within the State of New York, without
regard to conflicts of law. The Company hereby irrevocably submits to the
jurisdic tion of any New York State court sitting in the borough of Manhattan in
the city of New York or any federal court sitting in the borough of Manhattan in
the city of New York in respect of any suit, action or proceeding arising out of
or relating to this Indenture and the Securities, and irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
jurisdiction of the aforesaid courts. The Company irrevocably waives, to the
fullest extent they may effectively do so under applicable law, trial by jury
and any objection which they may now or hereafter have to the laying of the
venue of any such suit, action or proceeding bought in any such court and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Trustee or any Holder to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the Company in any
other jurisdiction.
SECTION 1.12 Conflict with Trust Indenture Act. Prior to the
issuance of the Exchange Securities or the effectiveness of the Shelf
Registration Statement, the Trust Indenture Act shall apply as a matter of
contract to this Inden ture for purposes of interpretation, construction and
defining the rights and obliga tions hereunder. Upon the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration Statement,
this Indenture shall be subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. If any provision hereof limits,
qualifies or conflicts with any provision of the Trust Indenture Act or another
provision which is required or deemed to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such provision or requirement of the
Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
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SECTION 1.13 Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, or Stated Maturity or Maturity of any Security
shall not be a Business Day at a place of payment, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal of
(or premium, if any) or interest need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date or at the Stated Maturity or
Maturity; provided that no interest shall accrue solely by virtue of such delay
for the period from and after such Interest Payment Date, Redemption Date,
Stated Maturity or Maturity, as the case may be.
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders. No board member, director, officer, employee, agent,
authorized representative, incorporator or shareholder of the Company, as such,
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation, solely by reason of its status as a board
member, director, officer, employee, agent, authorized representative,
incorporator or shareholder of the Company. By accepting a Security, the Trustee
on behalf of each Holder waives and releases all such liability (but only such
liability). The waiver and release are part of the consideration for issuance of
the Securities.
SECTION 1.15 Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default if
such action is taken or condition exists.
SECTION 1.16 Exhibits. All exhibits attached hereto are by
this reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 1.17 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 1.18 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
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SECTION 1.19 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Indenture, the Com
pany (i) acknowledges that it has, by separate written instruments, designated
and appointed CT Corporation System, 1633 Broadway, New York, NY 10019 ("CT
Corporation System") (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Indenture that may be instituted in any federal or state court in the
Borough of Manhattan, City of New York, State of New York or brought under
federal or state securities laws, and represent and warrant that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation System and written notice of said service to the
Company, in accordance with Section 1.5 shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation System in full force
and effect for as long as any of the Securities remain Outstand ing (subject to
the limitation set forth in clause (i)); provided, however, that the Company
may, and to the extent CT Corporation System ceases to be able to be served on
the basis contemplated herein shall, by written notice to the Trustee, designate
such additional or alternative agent for service of process under this Section
1.19 that (i) maintains an office located in the Borough of Manhattan City of
New York, State of New York, and (ii) is either (x) United States counsel for
the Company or (y) a corporate service company which acts as agent for service
of process for other persons in the ordinary course of its business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court of (i) any jurisdiction in which the
Company owns or leases property or assets, (ii) the United States or the State
of New York or (iii) the Netherlands or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property and assets or
this Agreement or any of the Notes or actions to enforce judgments in respect of
any thereof, the Company hereby irrevoca bly waives such immunity in respect of
its obligations under the above-referenced documents, to the extent permitted by
law.
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SECTION 1.20 Judgment Currency. The Company hereby agrees to
indemnify the Trustee, its directors, its officers and each person, if any, who
controls the Trustee within the meaning of Section 15 of the Act or Section 20
of the Ex change Act against any loss incurred by such person as a result of any
judgment or order being given or made against the Company for any U.S. Dollar
amount due under this Agreement and such judgment or order being expressed and
paid in a currency (the "Judgment Currency") other than United States Dollars
and as a result of any variation as between (i) the rate of exchange at which
the United States Dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in The City
of New York at which such party on the date of payment of such judgment or order
is able to purchase United States Dollars with the amount of the Judgment
Currency actually received by such party. The foregoing indemnity shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into,
United States Dollars.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Securities and the Trustee's
certificate of authentication with respect thereto shall be in substantially the
form set forth in Exhibit A hereto with respect to the Dollar Denominated
Securities and Exhibit B hereto with respect to the Euro Denominated Securities,
with such appro priate insertions, omissions, substitutions and other variations
as are required or permitted by this Indenture, and may have such letters,
numbers or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities exchange
or system on which the Securities may be listed or eligible for trading or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities. Any portion of
the text of any Security may be set forth on the reverse thereof, with an
appropriate reference thereto on the face of the Security.
The Certificated Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange or system on which the
Securities may be listed or eligible for trading, all as determined by the
managing directors, officers and
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authorized representatives of the Company executing such Securities, as
evidenced by their execution of such Securities.
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms. The aggregate principal amount of
Dollar Denominated Securities and Euro Denominated Securities which may be
authenticated and delivered under this Indenture is initially limited to
$800,000,000 and (U)300,000,000, respectively, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6,
10.10, 10.16 or 11.8.
The Initial Securities shall be known and designated as the
"$800,000,000 107/8% Senior Notes Due 2009 and the (U)300,000,000 107/8% Senior
Notes due 2009" and the Exchange Securities shall be known as the "$800,000,000
107/8% Series B Senior Notes and the (U)300,000,000 107/8% Series B Senior
Notes". The final Stated Maturity of the Securities shall be August 1, 2009.
Interest on the Dollar Denominated Securities will accrue at a rate of 107/8%
per annum accruing from July 30, 1999 or from the most recent Interest Payment
Date to which cash interest has been paid or duly provided for, and will be
payable semiannually in arrears on February 1 and August 1 of each year,
commencing February 1, 2000, to the Holders of record on the immediately
preceding Regular Record Date. Interest on the Euro Denominated Securities will
accrue at a rate of 107/8% per annum accruing from July 30, 1999 or from the
most recent Interest Payment Date to which cash interest has been paid or duly
provided for, and will be payable semiannually in arrears on February 1 and
August 1 of each year, commencing February 1, 2000, to the Holders of record on
the immediately preceding Regular Record Date. Interest on the Securities will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
Principal of, premium, if any, and interest on the Securities
will be payable, and the Securities may be exchanged or transferred, at the
office or agency of the Company in The City of New York and in London, which,
unless otherwise provided by the Company, will be the offices of the Trustee. At
the option of the Company, interest may be paid by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register.
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The Securities shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Twelve.
The Securities will be general, senior, unsecured obligations
of the Company, ranking pari passu in right of payment with each other.
SECTION 3.2 Denominations. The Securities (including any
Global Security) shall be issuable only in registered form without coupons and
only in denominations of US$1,000 in the case of the Dollar Denominated
Securities or (U)1,000 in the case of Euro Denominated Securities or any
integral multiple of US$1,000 or (U)1,000, as the case may be, above such
amount. The Securities shall not be issuable in bearer form. No service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company
by its Chief Executive Officer, its President, a Vice President or a managing
director (being an executive officer of the Company with due authority granted
by the management board of the Company to execute Securities) of the Company.
The signature of any of these officers or directors on the Securities may be
manual or facsimile signatures of the present or any future such authorized
officer or director and may be imprinted or otherwise reproduced on the
Securities.
Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers or directors of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities. In
addition, any Security may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Security, shall be the proper
officers or directors of the Company, although at the date of such Security or
of the execution of this Indenture any such Person was not such officer or
director.
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At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
On the Issue Date the Trustee shall authenticate Initial
Securities for original issue in the aggregate principal amount not to exceed
$800,000,000 and (U)300,000,000, respectively, upon a written order of the
Company in the form of an Officer's Certificate. Such order shall specify the
amount of the Initial Securities to be authenticated and the date on which the
original issue of Initial Securities is to be authenticated. In addition, the
Trustee shall authenticate Exchange Securities for original issue in the
aggregate principal amount of up to $800,000,000 and (U)300,000,000, in each
case upon a written order of the Company in the form of an Officer's
Certificate, provided that such Exchange Securities shall be issuable only upon
the valid surrender for cancellation of Initial Securities of a like aggregate
principal amount in accordance with the Registration Rights Agreement. The
Officer's Certificate shall specify the amount of Exchange Securities to be
authenti cated and the date on which the Exchange Securities are to be
authenticated. Upon the written order of the Company in the form of an Officer's
Certificate, the Trustee shall authenticate Securities in substitution of
Securities originally issued to reflect any name change of the Company.
(b) The terms and provisions contained in the form of
Securities shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
(c) Restricted Global Securities. (i) The Initial Securities
offered and sold in reliance on Rule 144A shall be issued in the form of one or
more global securities (the "Restricted Global Security") in definitive, fully
registered form
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without interest coupons, with such applicable legends as are provided for in
Exhibit A hereto, except as otherwise permitted herein.
(ii) Each Restricted Dollar Denominated Global
Security shall be registered in the name of DTC or its nominee and
deposited with the Trustee, at its Corporate Trust Office, as custodian
for DTC, duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of a Restricted
Dollar Denominated Global Security may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as
custodian for DTC, in connection with a corresponding decrease or
increase in the aggregate principal amount of a Dollar Denominated
Security that is a Regulation S Global Security (a "Regulation S Dollar
Denominated Global Security") or a Dollar Denominated Security that is
an Unrestricted Global Security (an "Unrestricted Dollar Denominated
Global Security"), as hereinafter provided.
(iii) Each Restricted Euro Denominated Global
Security shall be registered in the name of the Common Depositary or
its nominee and deposited with the Common Depositary, on behalf of
Euroclear and Cedelbank, duly executed by the Company and authen
ticated by the Trustee as hereinafter provided for credit to the respec
tive accounts of Euroclear and Cedelbank. The aggregate principal
amount of a Restricted Euro Denominated Global Security may from time
to time be increased or decreased by adjustments made on the records of
the Common Depositary, in connection with a correspond ing decrease or
increase in the aggregate principal amount of a Euro Denominated
Security that is a Regulation S Global Security (a "Regulation S Euro
Denominated Global Security") or a Euro Denom inated Security that is
an Unrestricted Global Security (an "Unre stricted Euro Denominated
Global Security"), as hereinafter provided.
(d) Regulation S Global Securities. (i) Initial Securities
offered and sold in reliance on Regulation S shall be initially issued in the
form of one or more Global Securities in definitive, fully registered form
without interest coupons, with such applicable legends as are provided for in
Exhibit A hereto, except as otherwise permitted herein. Until such time as the
Restricted Period shall have terminated, such Global Securities shall be
referred to herein as the "Regulation S
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Global Security." After such time as the Restricted Period shall have
terminated, such Regulation S Global Securities shall be referred to herein, as
the "Unrestricted Global Securities."
(ii) Each Regulation S Dollar Denominated Global
Security and Unrestricted Dollar Denominated Global Security shall be
registered in the name of DTC or its nominee and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC, duly
executed by the Company and authenticated by the Trustee as herein
after provided, for credit to the respective accounts at DTC of the
depositaries for Euroclear or Cedelbank. The aggregate principal amount
of each Regulation S Dollar Denominated Global Security (or
Unrestricted Dollar Denominated Global Security) may from time to time
be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC, in connection with a corresponding
decrease or increase in the aggregate principal amount of a Restricted
Dollar Denominated Global Security, as hereinafter provided.
(iii) The Regulation S Euro Denominated Global
Security and Unrestricted Euro Denominated Global Security shall be
registered in the name of the Common Depositary or its nominee and
deposited with the Common Depositary, as custodian for Euroclear and
Cedelbank, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, for credit to the respective ac counts
of Euroclear and Cedelbank. The aggregate principal amount of a
Regulation S Euro Denominated Global Security or an Unre stricted
Global Security may from time to time be increased or de creased by
adjustments made on the records of the Common Deposi tary, as custodian
for Euroclear and Cedelbank, in connection with a corresponding
decrease or increase in the aggregate principal amount of a Restricted
Euro Denominated Global Security, as hereinafter provided.
(e) The Exchange Dollar Denominated Securities and the Ex
change Euro Denominated Securities which are issued in exchange for initial
Dollar Denominated Securities and initial Euro Denominated Securities
respectively shall be issued initially in the form of one or more permanent
Global Securities in defini tive, fully registered form without interest
coupons, substantially in the form set forth in Exhibit A and Exhibit B
respectively, deposited with the Trustee, as custodian for
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DTC in the case of the Exchange Dollar Denominated Securities, and deposited
with the Common Depositary, on behalf of Euroclear and Cedelbank in the case of
the Exchange Euro Denominated Securities, and shall bear the applicable legends
relating to Global Securities set forth in Exhibit A and Exhibit B that are
required to appear on such Securities. Exchange Dollar Denominated Securities
and Exchange Euro Denominated Securities shall constitute Unrestricted
Securities.
(f) In case the Company, pursuant to Article Eight, shall be
Consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount; and the Trustee,
upon Company Request of the successor Person, shall authenticate and deliver
Securities as specified in such request for the purpose of such exchange. If
Securities shall at any time be authenticated and delivered in any new name of a
successor Person pursuant to this Section in exchange or substitution for or
upon registration of transfer of any Securities, such successor Person, at the
option of the Holders but without expense to them, shall provide for the
exchange of all Securities at the time Outstanding for Securities authenticated
and delivered in such new name.
SECTION 3.4 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclu sively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
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definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securi ties, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged, the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.2 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchange of Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as security registrar (the "Security Registrar") for the
purpose of registering Securities and transfers and exchanges of Securities as
herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 10.2, the
Company shall execute, the Trustee shall authenticate and deliver, and the
Security Registrar shall register, if the requirements, of such transfer are
met, in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations of a like aggregate
principal amount.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination and of a like currency and
aggregate principal amount (including an exchange of Initial Securities for
Exchange Securi ties), upon surrender of the Securities to be exchanged at such
office or agency provided that Dollar Denominated Securities may not be
exchanged for Euro Denominated Securities, and vice versa. Whenever any
Securities are so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and deliver, and the Security Registrar shall
register, the Securities which the Holder making the exchange is entitled to
receive, provided that no exchange of Initial Securities for Exchange Securities
shall occur until an Exchange Offer Registration Statement shall
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have been declared effective by the SEC (confirmed in an Officer's Certificate)
and that the Initial Securities to be exchanged for the Exchange Securities
shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6, 10.10, 10.16 or
11.8 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the selection of Securities to be redeemed under Section
11.4 and ending at the close of business on the day of such mailing of the
relevant notice of redemp tion or (ii) to register the transfer of or exchange
any Security so selected for redemp tion in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or (ii) the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and there is delivered to the Company and the Trustee
such security or indemnity as may be required by them to save each of them
harmless, then, in the absence of notice to the Company or the Trustee that such
Security has been acquired by a bona fide purchaser, the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver, in exchange
for any such mutilated Security or
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in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and principal amount, bearing a number not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2;
provided, however, that each installment of interest may at the Company's option
be paid (i) by mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.8, to the address of
such Person as it appears in the Security Register, or (ii) by wire transfer of
such interest in immediately available funds to an account, in the case of the
Dollar Denominated Securities, located in the United States maintained by the
DTC, and, in the case of the Euro Denominated Securities, to an account located
in Europe.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be
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payable to the Holder on the Regular Record Date by virtue of having been such
Holder, and such defaulted interest and (to the extent lawful) interest on such
defaulted interest at the rate borne by the Securities (such defaulted interest
and interest thereon herein collectively called "Defaulted Interest") must be
paid by the Company, at its election in each case, as provided in paragraph (1)
or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner provided for in
Section 1.6, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following paragraph(2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or system on which the Securities may be listed or eligible for
trading, and upon such notice as may be required by such exchange or system, if,
after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Trustee.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners. Prior to the due present
ment of a Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of (and premium, if any) and (subject to Sections
3.5 and 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and none of the Company, the Trustee or
any agent of the Company or the Trustee shall be affected by notice to the
contrary.
SECTION 3.9 Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securi ties previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authen ticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 3.10 Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers. The Company in
issuing the Securities may use a "CUSIP" and/or "ISIN" number (if then generally
in
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use), and if so, the Trustee and the Common Depositary shall use "CUSIP" and/or
"ISIN" numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness or accuracy of such numbers either as printed in the
notice or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee and the Common Depositary in writing of any change in the
"CUSIP" or "ISIN" numbers of the Securities.
SECTION 3.12 Book-Entry Provisions for Global Securities,
Certificated Securities.
Except as indicated below in this Section 3.12, the Securities
shall be represented only by Global Securities. The Global Securities shall be
deposited with a Depositary for such Securities (and shall be registered in the
name of such Deposi tary or its nominee). The Depositary for the Dollar
Denominated Securities shall be DTC unless the Company appoints a successor
Depositary by delivery of a Company Order to the Trustee specifying such
successor Depositary. The Depositary for the Euro Denominated Securities shall
be Citibank, N.A. unless Euroclear and Cedelbank appoint a successor Depositary
(which shall be a Common Depositary of Euroclear and Cedelbank).
All payments on a Dollar Denominated Global Security will be
made to DTC or its nominee, as the case may be, as the registered owner and
Holder of such Dollar Denominated Global Security. All payments on a Euro
Denominated Global Security will be made to the order of the Common Depositary
or its nominee, as the case may be, as the registered holder of such Euro
Denominated Global Security. In each case, the Company will be fully discharged
by payment to or to the order of such Depositary from any responsibility or
liability in respect of each amount so paid. Upon receipt of any such payment in
respect of a Dollar Denomi nated Global Security, DTC will credit Participants'
accounts with payments in amounts proportionate to their respective beneficial
interests in the principal amount of such Dollar Denominated Global Security as
shown on the records of DTC. The Common Depositary will instruct the Euro Paying
Agent to make payments in respect of the Euro Denominated Securities to
Euroclear and Cedelbank in amounts proportionate to their respective beneficial
interests in the principal amount of each Euro Denominated Global Security, and
Euroclear and Cedelbank will credit Participants' accounts with payments in
amounts proportionate to their respective
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beneficial interests in the principal amount of such Global Security as shown on
the records of Euroclear and Cedelbank.
Unless and until it is exchanged in whole or in part for
Certificated Securities, a Global Security may not be transferred except as a
whole by the relevant Depositary or nominee thereof to another nominee of the
Depositary or to a succes sor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be
entitled or required, as the case may be, but only under the circumstances
described in this Section 3.12, to receive physical delivery of Certificated
Securities.
Interests in a Global Security shall be exchangeable or
transferable, as the case may be, for Certificated Securities if (i) in the case
of a Dollar Denominated Global Security, DTC notifies the Company that it is
unwilling or unable to continue as Depositary for such Dollar Denominated Global
Security, or DTC ceases to be a "Clearing Agency" registered under the United
States Securities Exchange Act of 1934, and a successor depositary is not
appointed by the Company within one hundred and twenty (120) days, (ii) in the
case of a Euro Denominated Global Security, Euroclear and Cedelbank notify the
Company that they are unwilling or unable to continue as clearing agencies for
such Euro Denominated Global Security, (iii) in the case of a Euro Denominated
Global Security, the Common Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Euro Denominated Global Security,
and a successor Common Depositary is not appointed within one hundred and twenty
(120) days or (iv) in the case of any Global Security, an Event of Default has
occurred and is continuing with respect thereto and the owner of a beneficial
interest therein requests such exchange or transfer. Upon the occurrence of any
of the events described in the preceding sentence, the Com pany shall cause the
appropriate Certificated Securities to be delivered to the owners of beneficial
interests in the Global Securities or the Participants in DTC, Euroclear or
Cedelbank through which such owners hold their beneficial interest. Certificated
Securities shall be exchangeable or transferable for interests in other
Certificated Securities as described herein.
SECTION 3.13 Transfer and Exchange of Securities.
(a) Obligations with Respect to Transfers and Exchanges of
Securities. Upon surrender for registration of transfer of any Security of a
series to the appropriate Registrar, and subject to the other provisions of this
Section 3.13, the
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Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Securities of
such series of any authorized denominations and of a like aggregate principal
amount.
At the option of the Holder, and subject to the other
provisions of this Section 3.13, Securities of any series may be exchanged for
other Securities of such series of any authorized denominations and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
such office or agency. Whenever any Securities are so surrendered for exchange,
and subject to the other provisions of this Section 3.13, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and subject to the other provisions of this Section 3.13,
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registra tion of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Common Depositary) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the appropriate
Registrar and be duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection with
any registration of transfer or exchange of Securities.
(b) Transfer and Exchange of Dollar Denominated Global
Securities. Notwithstanding any provisions of this Indenture or the Securities,
transfers of a Dollar Denominated Global Security, in whole or in part,
transfers and exchanges of interests therein of the kinds described in clauses
(ii), (iii) and (iv) below and exchange of interests in Dollar Denominated
Global Securities or of other Dollar Denominated Securities as described in
clause (v) below, shall be made only in accordance with this Section 3.13(b).
Transfers and exchanges subject to this Section 3.13 shall also be subject to
the other provisions of this Indenture that are not inconsistent with this
Section 3.13.
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(i) General. A Dollar Denominated Global Secu rity
may not be transferred, in whole or in part, to any Person other than
DTC or a nominee thereof or a successor to DTC or its nominee, and no
such transfer to any such other Person may be registered; provided that
this clause (i) shall not prohibit any transfer of a Dollar Denominated
Security that is issued in exchange for a Dollar Denomi nated Global
Security but is not itself a Dollar Denominated Global Security. No
transfer of a Dollar Denominated Security of any series to any Person
shall be effective under this Indenture or the Dollar Denominated
Securities of such series unless and until such Dollar Denominated
Security has been registered in the name of such Person. Nothing in
this Section 3.13(b)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Dollar Denominated Global
Security effected in accordance with the other provisions of this
Section 3.13(b).
(ii) Restricted Global Security to Regulation S
Global Security. If the Holder of a beneficial interest in a Restricted
Dollar Denominated Global Security of any series wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Regulation S Dollar
Denominated Global Security of such series, such transfer may be
effected, subject to the rules and procedures of DTC, Euroclear and
Cedelbank, in each case to the extent applicable (the "Applicable
Procedures"), only in accordance with the provisions of this Section
3.13(b)(ii). Upon receipt by the Dollar Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Dollar Registrar, to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in
a Regulation S Dollar Denominated Global Security in a principal amount
equal to that of the beneficial interest in a Restricted Dollar
Denominated Global Security to be so transferred; (B) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member (and/or the
Euroclear or Cedelbank account, as the case may be) to be credited
with, and the account of the Agent Member to be debited for, such
beneficial interest; and (C) a certificate in substantially the form
set forth in Exhibit C given by the Holder of such beneficial interest,
the principal amount of a Restricted Dollar Denominated Global
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Security shall be reduced, and the principal amount of a Regulation S
Dollar Denominated Global Security shall be increased, by the princi
pal amount of the beneficial interest in a Restricted Dollar Denomi
nated Global Security to be so transferred, in each case by means of an
appropriate adjustment on the records of the Dollar Registrar, and the
Dollar Registrar shall instruct DTC or its authorized representative to
make a corresponding adjustment to its records and to credit or cause
to be credited to the account of the Person specified in such
instructions (which shall be the Agent Member for Euroclear or
Cedelbank or both, as the case may be) a beneficial interest in a
Regulation S Dollar Denominated Global Security having a principal
amount equal to the amount so transferred.
(iii) Restricted Dollar Denominated Global Security
to Unrestricted Dollar Denominated Global Security. If the Holder of a
beneficial interest in a Restricted Dollar Denominated Global Security
of any series wishes at any time to transfer such interest to a Person
who wishes to take delivery thereof in the form of a beneficial
interest in an Unrestricted Dollar Denominated Global Security of such
series, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.13(b)(iii). Upon
receipt by the Dollar Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Dollar Registrar to credit or cause to be credited to a
specified Agent Member's account a beneficial interest in an Unre
stricted Dollar Denominated Global Security in a principal amount equal
to that of the beneficial interest in a Restricted Dollar Denomi nated
Global Security to be so transferred, (B) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member (and, if applicable, the
Euroclear or Cedelbank account, as the case may be) to be credited
with, and the account of the Agent Member to be debited for, such
beneficial interest, and (C) a certificate in substantially the form
set forth in Exhibit D given by the Holder of such beneficial interest,
the principal amount of the Restricted Dollar Denominated Global Secu
rity shall be reduced, and the principal amount of an Unrestricted
Dollar Denominated Global Security shall be increased, by the princi
pal amount of the beneficial interest in a Restricted Global Dollar
Denominated Security to be so transferred, in each case by means of
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an appropriate adjustment on the records of the Dollar Registrar and
the Dollar Registrar shall instruct DTC or its authorized
representative to make a corresponding adjustment to its records and to
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in an Unrestricted Dollar
Denomi nated Global Security having a principal amount equal to the
amount so transferred.
(iv) Regulation S Dollar Denominated Global Security
or Unrestricted Dollar Denominated Global Security to Restricted Dollar
Denominated Global Security. If the Holder of a beneficial interest in
a Regulation S Dollar Denominated Global Security of any series or an
Unrestricted Dollar Denominated Global Security of any series wishes at
any time to transfer such interest to a Person who wishes to take
delivery thereof in the form of a beneficial interest in a Restricted
Dollar Denominated Global Security of such series, such transfer may be
effected, subject to the Applicable Proce dures, only in accordance
with this Section 3.13(b)(iv). Upon receipt by the Dollar Registrar of
(A) written instructions given in accordance with the Applicable
Procedures from an Agent Member directing the Dollar Registrar to
credit or cause to be credited to a specified Agent Member's account a
beneficial interest in a Restricted Dollar Denomi nated Global Security
in a principal amount equal to that of the beneficial interest in a
Regulation S Dollar Denominated Global Security or an Unrestricted
Dollar Denominated Global Security to be so transferred, (B) a written
order given in accordance with the Appli cable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member (and, if applicable, the
Euroclear or Cedelbank account, as the case may be) to be debited for,
such beneficial interest, and (C) with respect to a transfer of a
beneficial interest in a Regulation S Dollar Denominated Global
Security (but not an Unrestricted Dollar Denominated Global Security)
to a Person whom the transferor reasonably believes is a QIB, a
certificate in substantially the form set forth in Exhibit E given by
the Holder of such beneficial interest, the principal amount of a
Restricted Dollar Denominated Global Security shall be increased, and
the principal amount of a Regulation S Dollar Denominated Global
Security or an Unrestricted Dollar Denominated Global Security shall be
reduced, by the principal amount of the
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beneficial interest in a Restricted Dollar Denominated Global Security
to be so transferred, in each case by means of an appropriate adjust
ment on the records of the Dollar Registrar and the Dollar Registrar
shall instruct DTC or its authorized representative to make a corre
sponding adjustment to its records and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in the Restricted Dollar Denominated Global
Security having a principal amount equal to the amount so transferred.
(v) Exchanges of Dollar Denominated Global Security
for Dollar Denominated Non-Global Security. In the event that a Dollar
Denominated Global Security or any portion thereof is exchanged for
Dollar Denominated Securities other than Dollar Denominated Global
Securities, such other Dollar Denominated Securities may in turn be
exchanged (on transfer or otherwise) for Securities that are not Dollar
Denominated Global Securities or for beneficial interests in a Dollar
Denominated Global Security (if any is then Outstanding) only in
accordance with such procedures, which shall be substantially
consistent with the provisions of clauses (i) through (iv) above and
(vi) below (including the certification require ments intended to
insure that transfers and exchanges of beneficial interests in a Dollar
Denominated Global Security comply with Rule 144A, Rule 144 or
Regulation S, as the case may be) and any Appli cable Procedures, as
may be from time to time adopted by the Com pany and the Trustee.
(vi) Interest in Regulation S Dollar Denominated
Global Security to be Held Through Euroclear or Cedelbank. Until the
termination of the Restricted Period with respect thereto, interests in
a Regulation S Global Security may be held only through Agent Members
acting for and on behalf of Euroclear and Cedelbank, provided that this
clause (vi) shall not prohibit any transfer in accor dance with Section
3.13(b)(iv) hereof.
(c) Transfer and Exchange of Euro Denominated Global Securi
ties. Notwithstanding any provisions of this Indenture or the Euro Denominated
Securities, transfers of a Euro Denominated Global Security, in whole or in
part, transfers and exchanges of interests therein of the kinds described in
clauses (ii), (iii) and (iv) below and exchange of interests in Euro Denominated
Global Securities
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or of other Euro Denominated Securities as described in clause (v) below, shall
be made only in accordance with this Section 3.13(c). Transfers and exchanges
subject to this Section 3.13 shall also be subject to the other provisions of
this Indenture that are not inconsistent with this Section 3.13.
(i) General. A Euro Denominated Global Security may
not be transferred, in whole or in part, to any Person other than the
Common Depositary or a nominee thereof or a successor Common Depositary
or its nominee, and no such transfer to any such other Person may be
registered; provided that this clause (i) shall not pro hibit any
transfer of a Euro Denominated Security that is issued in exchange for
a Euro Denominated Global Security but is not itself a Euro Denominated
Global Security. No transfer of a Euro Denomi nated Security to any
Person shall be effective under this Indenture or the Euro Denominated
Securities unless and until such Euro Denomi nated Security has been
registered in the name of such Person. Noth ing in this Section
3.13(c)(i) shall prohibit or render ineffective any transfer of a
beneficial interest in a Euro Denominated Global Secu rity effected in
accordance with the other provisions of this Section 3.13(c).
(ii) Restricted Euro Denominated Global Security to
Regulation S Euro Denominated Global Security. If the Holder of a
beneficial interest in a Restricted Euro Denominated Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in a Regula
tion S Euro Denominated Global Security, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with the
provisions of this Section 3.13(c)(ii). Upon receipt by the Euro
Registrar of (A) written instructions given in accordance with the
Applicable Procedures from Euroclear or Cedelbank directing the Euro
Registrar to credit or cause to be credited to Euroclear's or
Cedelbank's account a beneficial interest in a Regulation S Euro
Denominated Global Security in a principal amount equal to that of the
beneficial interest in a Restricted Euro Denominated Global Security to
be so transferred; (B) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
Euroclear or Cedelbank to be credited with, and the ac count of
Euroclear or Cedelbank to be debited for, such beneficial
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interest and (C) a certificate in substantially the form set forth in
Exhibit C given by the Holder of such beneficial interest, the
principal amount of a Restricted Euro Denominated Global Security shall
be reduced, and the principal amount of a Regulation S Euro Denomi
nated Global Security shall be increased, by the principal amount of
the beneficial interest in a Restricted Euro Denominated Global
Security to be so transferred, in each case by means of an appropriate
adjustment on the records of the Euro Registrar and the Euro Registrar
shall instruct the Common Depositary or its authorized representative
to make a corresponding adjustment to its records and to credit or
cause to be credited to the account of Euroclear or Cedelbank a
beneficial interest in a Regulation S Euro Denominated Global Secu rity
having a principal amount equal to the amount so transferred.
(iii) Restricted Euro Denominated Global Security to
Unrestricted Euro Denominated Global Security. If the Holder of a
beneficial interest in a Restricted Euro Denominated Global Security
wishes at any time to transfer such interest to a Person who wishes to
take delivery thereof in the form of a beneficial interest in an Unre
stricted Euro Denominated Global Security, such transfer may be
effected, subject to the Applicable Procedures, only in accordance with
this Section 3.13(c)(iii). Upon receipt by the Euro Registrar of (A)
written instructions given in accordance with the Applicable Procedures
from Euroclear or Cedelbank directing the Euro Registrar to credit or
cause to be credited to Euroclear's or Cedelbank's account a beneficial
interest in an Unrestricted Euro Denominated Global Security in a
principal amount equal to that of the beneficial interest in a
Restricted Euro Denominated Global Security to be so trans ferred, (B)
a written order given in accordance with the Applicable Procedures
containing information regarding the account of Euroclear or Cedelbank
to be credited with, and the account of Euroclear or Cedelbank to be
debited for, such beneficial interest and (C) a certifi cate in
substantially the form set forth in Exhibit D given by the Holder of
such beneficial interest, the principal amount of the Re stricted Euro
Denominated Global Security shall be reduced, and the principal amount
of an Unrestricted Euro Denominated Global Secu rity shall be
increased, by the principal amount of the beneficial interest in a
Restricted Euro Denominated Global Security to be so transferred, in
each case by means of an appropriate adjustment on the
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records of the Euro Registrar and the Euro Registrar shall instruct the
Common Depositary or its authorized representative to make a corre
sponding adjustment to its records and to credit or cause to be
credited to the account of Euroclear or Cedelbank a beneficial interest
in a Regulation S Euro Denominated Global Security having a principal
amount equal to the amount so transferred.
(iv) Regulation S Euro Denominated Global Secu rity
or Unrestricted Euro Denominated Global Security to Restricted Euro
Denominated Global Security. If the Holder of a beneficial interest in
a Regulation S Euro Denominated Global Security or an Unrestricted Euro
Denominated Global Security wishes at any time to transfer such
interest to a Person who wishes to take delivery thereof in the form of
a beneficial interest in a Restricted Euro Denominated Global Security,
such transfer may be effected, subject to the Applica ble Procedures,
only in accordance with this Section 3.13(c)(iv). Upon receipt by the
Euro Registrar of (A) written instructions given in accordance with the
Applicable Procedures from Euroclear or Cedelbank directing the Euro
Registrar to credit or cause to be cred ited to Euroclear's or
Cedelbank's account a beneficial interest in a Restricted Euro
Denominated Global Security in a principal amount equal to that of the
beneficial interest in a Regulation S Euro Denom inated Global Security
or an Unrestricted Euro Denominated Global Security to be so
transferred, (B) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
Euroclear or Cedelbank to be credited with, and the ac count of
Euroclear or Cedelbank to be debited for, such beneficial interest and
(C) with respect to a transfer of a beneficial interest in a Regulation
S Euro Denominated Global Security (but not an Unre stricted Euro
Denominated Global Security) to a Person whom the transferor reasonably
believes is a QIB, a certificate in substantially the form set forth in
Exhibit E given by the Holder of such beneficial interest, the
principal amount of a Restricted Euro Denominated Global Security shall
be increased, and the principal amount of a Regulation S Euro
Denominated Global Security or an Unrestricted Euro Denominated Global
Security shall be reduced, by the principal amount of the beneficial
interest in a Restricted Euro Denominated Global Security to be so
transferred, in each case by means of an appropriate adjustment on the
records of the Euro Registrar and the
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Euro Registrar shall instruct the Common Depositary or its authorized
representative to make a corresponding adjustment to its records and to
credit or cause to be credited to the account of the Person specified
in such instructions a beneficial interest in a Restricted Euro Denomi
nated Global Security having a principal amount equal to the amount so
transferred.
(v) Exchanges of Euro Denominated Global Secu rity
for Euro Denominated Non-Global Security. In the event that a Euro
Denominated Global Security or any portion thereof is ex changed for
Securities other than Euro Denominated Global Securi ties, such other
Securities may in turn be exchanged (on transfer or otherwise) for
Securities that are not Euro Denominated Global Securities or for
beneficial interests in a Euro Denominated Global Security (if any is
then Outstanding) only in accordance with such procedures, which shall
be substantially consistent with the provisions of clauses (i) through
(iv) above and (vi) below (including the certifi cation requirements
intended to insure that transfers and exchanges of beneficial interests
in a Euro Denominated Global Security comply with Rule 144A, Rule 144
or Regulation S, as the case may be) and any Applicable Procedures, as
may be from time to time adopted by the Company and the Trustee.
(vi) Interest in Euro Denominated Global Security to
be Held Through Euroclear or Cedelbank. Interests in a Euro Denominated
Global Security may be held only through Agent Mem bers acting for and
on behalf of Euroclear and Cedelbank, provided that this clause (vi)
shall not prohibit any transfer in accordance with Section 3.13(c)(iv)
hereof.
(d) Legends. Each Restricted Security and Global Security
issued hereunder shall, upon issuance, bear the legends set forth in Exhibit A
hereto that are required to be applied to such a Security and such required
legends shall not be removed from such Security except as provided in the next
sentence or Section 3.13(e). The legend required for a Restricted Security may
be removed from a Security if there is delivered to the Company and the
appropriate Registrar such satisfactory evidence, which may include an opinion
of independent counsel licensed to practice law in the State of New York, as may
be reasonably required by the Company that neither such legend nor the
restrictions on transfer set forth therein are
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required to ensure that transfers of such Security will not violate the
registration requirements of the Securities Act. Upon provision of such
satisfactory evidence, the Trustee, at the direction of the Company, shall
authenticate and deliver in exchange for such Security another security or
securities having an equal aggregate principal amount that does not bear such
legend. If such a legend required for a Restricted Security has been removed
from a Security as provided above, it shall not be a Restricted Security and no
other Security issued in exchange for all or any part of such Security shall
bear such legend, unless the Company has reasonable cause to believe that such
other security is a "restricted security" within the meaning of Rule 144 and
instructs the Trustee in writing to cause a legend to appear thereon.
(e) Global Securities. The provisions of clauses (i),
(ii), (iii), and (iv) below shall apply only to Global Securities;
(i) General. Each Global Security authenticated under
this Indenture shall be registered in the name of the appropriate
Depositary or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor.
(ii) Transfer to Persons other than Depositary.
Notwithstanding any other provision in this Indenture or the Securi
ties, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or
in part may be registered, in the name of any person other than the
appropriate Depositary or a nominee thereof unless (A) in the case of a
Dollar Denominated Global Security, DTC notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security,
or DTC ceases to be a "Clearing Agency" registered under the United
States Securities Exchange Act of 1934, and a successor depositary is
not appointed by the Company within one hundred and twenty (120) days,
(B) in the case of a Euro Denominated Global Security, Euroclear and
Cedelbank notify the Company that they are unwilling or unable to
continue as clearing agencies for such Euro Denominated Global
Security, (C) in the case of a Euro Denominated Global Security, the
Common Depositary notifies the Company that it is unwilling or unable
to continue as Depositary for such Euro De nominated Global Security,
and a successor Common Depositary is not appointed within one hundred
and twenty (120) days or (D) in the case of any Global Security, an
Event of Default has occurred and is
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continuing with respect thereto and the owner of a beneficial interest
therein requests such exchange or transfer. Any Global Security
exchanged pursuant to clause (A), (B) or (C) above shall be so ex
changed in whole and not in part and any Global Security exchanged
pursuant to clause (D) above may be exchanged in whole or from time to
time in part as directed by DTC. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security,
provided that any such Security so issued that is registered in the
name of a Person other than the appropriate Depositary or a nominee
thereof shall not be a Global Security.
(iii) Global Security to Certificated Security.
Securities issued in exchange for a Global Security or any portion
thereof pursuant to clause (ii) above shall be issued in definitive,
fully registered form without interest coupons, shall have an aggregate
principal amount equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the appropriate Depositary shall
designate and shall bear any legends required hereunder. Any Global
Security to be exchanged in whole shall be surrendered by the appro
priate Depositary to the Security Registrar. With regard to any Global
Security to be exchanged in part, either such Global Security shall be
so surrendered for exchange or, in the case of a Dollar Denominated
Global Security, if the Trustee is acting as custodian for DTC or its
nominee with respect to such Global Security or, in the case of a Euro
Denominated Global Security, if the Common Depositary is acting as
Depositary for Euroclear and Cedelbank, the principal amount thereof
shall be reduced, by an amount equal to the portion thereof to be so
exchanged, by means of an appropriate adjustment made on the records of
the Trustee, as Authenticating Agent, or of the Common Depositary. Upon
any such surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the order of
the appropriate Depositary or an authorized repre sentative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will promptly make
available to the Trustee a supply of Certificated Securities in
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definitive, fully registered form, without interest coupons, sufficient
to meet the Trustee's requirements hereunder.
(v) No Rights of Agent Members in Global Secu rity.
No Agent Member of any Depositary nor any other Persons on whose behalf
Agent Members may act (including Euroclear and Cedelbank and account
Holders and Participants therein) shall have any rights under the
Indenture with respect to any Global Security, or under any Global
Security, and each Depositary or its nominee, as the case may be, may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and Holder of such Global Security
for all purposes whatsoever. Notwith standing the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the applicable Depositary or
such nominee, as the case may be, or impair, as between DTC, Euroclear
and Cedelbank, their respective Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary
practices of such Per sons governing the exercise of the rights of a
Holder of any Security.
SECTION 3.14 Special Transfer Provisions.
(a) Transfers to Institutional Accredited Investors. If
Securities are being transferred to an Institutional Accredited Investor, the
Securities shall be accompanied by delivery of a transferee certificate for
Institutional Accredited Investors substantially in the form of Exhibit H hereto
and an opinion of counsel reasonably satisfactory to the Company to the effect
that such transfer is in compli ance with the Securities Act.
(b) Other Transfers. If a Holder proposes to transfer a
Security pursuant to any exemption from the registration requirements of the
Securities Act other than as provided for above, the Security Registrar shall
only register such transfer or exchange if such transferor delivers to the
Security Registrar and the Trustee an Opinion of Counsel satisfactory to the
Company and the Security Regis trar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; provided that the Company may,
based upon the opinion of its counsel, instruct the Security Registrar by a
Company Order not to register such transfer in
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any case where the proposed transferee is not a QIB, an Institutional Accredited
Investor or a non-U.S. Person.
(c) General. By its acceptance of any Security bearing
Legends, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Legends and
agrees that it will transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 3.12 or
this Section 3.14 for a period of two years, after which time such letters,
notices and other written communications shall at the written request of the
Company be delivered to the Company. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable prior written notice to the
Security Registrar.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Inden ture shall upon Company Request cease to be of further effect (except as
to surviving rights of registration of transfer or exchange of Securities
expressly provided for herein or pursuant hereto) and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Inden ture when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
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(b) (i) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable, or (ii) the
Company has given irrevocable and unconditional notice of redemption
for all of the Outstanding Securities within 60 days of such notice
pursuant to the redemption provi sions of this Indenture,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such pur pose an amount sufficient to pay and discharge the
entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
accrued interest (and Liquidated Dam ages, if any,) to the date of such
deposit;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Securities at
Maturity or the Redemption Date, as the case may be, which must be within 60
days thereof;
(4) the Holders of the Securities have a valid, perfected,
exclusive security interest in such trust; and
(5) the Company has delivered to the Trustee an Officers'
Certifi cate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7 and,
if money shall have been deposited with the Trustee pursuant to clause(1)(b) of
this Section 4.1, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and
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applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default", wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (or Liquidated
Damages, if any) on any Security when it becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of (or premium, if
any, on) any Security as and when the same becomes payable at its Maturity, or
upon redemption, by acceleration or otherwise, including, without limitation,
payment of the Change of Control Purchase Price or the Asset Sale Offer Price,
or otherwise on Securities validly tendered and not properly withdrawn pursuant
to a Change of Control Offer or Asset Sale Offer, as applicable; or
(3) failure to perform any other covenant or agreement of the
Company under this Indenture or Securities and, except for the provisions under
Section 10.10, 10.16, Article Eight and Section 10.12, continued for 30 days
after written notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least 25% in aggregate principal amount of the
Outstanding Securities;
(4) a default in Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount Outstanding in excess of $50,000,000 (or
its foreign currency equivalent) (a) resulting from the failure to pay principal
at maturity or otherwise at end of any applicable grace period for such payment
pursuant to the
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original terms of such Indebtedness or (b) as a result of which the maturity of
such Indebtedness has been accelerated prior to its stated maturity; or
(5) the rendering of a final judgment or final judgments not
covered by insurance in an amount in excess of $50,000,000 (or its foreign
currency equivalent) at any one time against the Company or any of its
Subsidiaries by a court or courts of competent jurisdiction, which judgment or
judgments remain unbonded, undischarged or unstayed for a period of 60 days
after the date on which the right to appeal all such judgments has expired; or
(6) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrange ment, adjustment or composition of or in respect of the
Company or any Significant Subsidiary or any other applicable federal, state or
foreign law, or appointing a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(7) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the U.S. Federal Bankruptcy Code or any other
applicable federal, state or foreign law, or the consent by it to the filing of
any such petition or to the appointment of a receiver, liquidator, assignee,
trustee or sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the making
by it of an assignment for the benefit of creditors, or the admission by it in
writing of its inability to pay its Indebtedness generally as they become due.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
Section 5.1(6) or 5.1 (7) relating to the Company) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities may declare the principal and
accrued interest (and Liqui dated Damages, if any) of all the Securities to be
due and payable immediately by a notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), and upon any such
declaration such principal, accrued
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interest (and Liquidated Damages, if any) shall become immediately due and
payable. If an Event of Default specified in Section 5.1(6) or 5.1(7) relating
to the Company occurs and is continuing, then the principal and accrued interest
(and Liquidated Damages, if any) of all the Securities shall ipso facto become
and be immediately due and payable without any declaration or other act on the
part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice to
the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid principal of (and premium, if any, on)
any Outstanding Securities which has become due otherwise than by such
declaration of acceleration, and interest on such unpaid principal at the rate
borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest on overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all existing Events of Default, other than the non-payment
of amounts of principal, (or premium, if any,) and interest on the Securities
which have become due solely by such declaration of acceleration, and except a
Default with respect to any provision requiring a supermajority approval to
amend, which Default may only be waived by such a supermajority, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the principal of (or pre
mium, if any, on) any Security at the Maturity thereof, the Company will, upon
demand of the Trustee, pay to the Trustee for the benefit of the Holders of such
Securities the whole amount then due and payable on such Securities for
principal (and premium, if any) and interest, and interest on any overdue
principal (and premium, if any) and, to the extent that payment of such interest
shall be legally enforceable, upon any overdue installment of interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, ex penses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as herein expressed or by
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declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of overdue principal, premium, if any,
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (and Liquidated Dam ages,
if any) owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee and
its agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of
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the Trustee and its agents and counsel, be for the ratable benefit of the
Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money
collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of principal (or premium, if any) or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of (and premium, if any) and interest (and Liquidated Damages, if any) on the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal (and premium, if any)
and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 Limitation on Suits. No Holder of any Securities
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) the Trustee is indemnified and/or secured (whether by pay
ment in advance or otherwise) to its reasonable satisfaction;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
or more in aggregate principal amount of the Outstanding Securities; it being
understood and intended that no one or more Holders shall have any right in any
manner whatsoever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other Holders, or to
obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and
for the equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment as provided herein (including, if
applicable, Article Twelve) and in such Security of the principal of (and
premium, if any) and (subject to Section 3.7) interest (and Liquidated Damages,
if any) on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemp tion Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated, de
stroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall
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not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of not less than
a majority in aggregate principal amount of the Outstanding Securities shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting unless it has received indemnity reasonably satisfactory to it.
SECTION 5.13 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default hereunder and
its consequences, except a Default
(1) in respect of the payment of the principal of (or
premium, if any) or interest (and Liquidated Damages, if any) on any Security,
or
(2) in respect of a covenant or provision hereof which cannot
be modified or amended without the approval of a supermajority, which Default
may only be waived by such a supermajority; or
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(3) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and con forming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they reasonably conform
to the requirements of this Indenture.
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(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of the requisite amount of the Outstanding Securities
relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon
the Trustee; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the perfor mance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
SECTION 6.2 Notice of Default. Within 60 days after being
notified or becoming aware of the occurrence of any Default hereunder, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to any Responsible Officer of the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case
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of a Default in the payment of the principal of (or premium, if any) or interest
on any Security, the Trustee shall be protected in withholding such notice if
and so long as the board of directors, the executive committee or a trust
committee of directors and/or Responsible Officers of the Trustee in good faith
determines that the with holding of such notice is in the interest of the
Holders.
SECTION 6.3 Certain Rights of Trustee. Subject to Section 6.1
and to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, deben ture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Supervisory Board of the Company may be sufficiently evidenced
by a Board Resolution;
(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffer ing or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, receive and conclusively rely upon an Officers' Certificate and/or an
Opinion of Counsel;
(4) the Trustee may consult with counsel and other
professional advisers and the written advice of such counsel or advisers or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless the Trustee
is indemnified and/or secured (whether by payment in advance or otherwise) to
its reasonable satisfaction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument,
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opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of Indebtedness or other paper or document, but the
Trustee, in its discre tion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians, delegates or attorneys and the Trustee shall not
be responsible for supervising the actions of such agent, nominee, custodian,
delegate or attorney, nor for any misconduct or negligence on the part of any
agent, nominee, custodian, delegate or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(9) the Trustee shall be entitled to assume that there has
been no Event of Default and that the Company has complied with all of its
obligations hereunder, unless a Responsible Officer of the Trustee has knowledge
to the contrary thereof.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereun der, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it.
SECTION 6.4 Trustee Not Responsible for Issuance of
Securities.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any
Paying Agent, any Security Registrar or any other agent of the Company or of the
Trustee, in its
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individual or any other capacity, may become the owner or pledgee of Securities
and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) as agreed in writing between the Company and the Trustee;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's gross negligence
or bad faith; and
(3) to indemnify the Trustee and its directors, officers,
employees and agents for, and to hold them harmless against, any loss, liability
or expense (including counsel's fees and expenses) without gross negligence or
bad faith on the part of any of them, arising out of or in connection with the
acceptance or adminis tration of this trust, including the costs and expenses of
defending itself or them selves against any claim or liability in connection
with the exercise or performance of any of its or their powers or duties
hereunder.
Upon the occurrence of an Event of Default or a potential
Event of Default or upon the Trustee being required, or considering it
necessary, to undertake duties outside the usual scope of a Trustee, the Trustee
will be entitled to charge additional fees as agreed upon in writing with the
Company.
The obligations of the Company under this Section 6.7 to
compensate
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the Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional Indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture or the earlier resignation or removal of the
Trustee. As security for the performance of such obligations of the Company, the
Trustee shall have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or (7), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 6.7 shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility;
Conflicting Interests.
(a) There shall be at all times a Trustee hereunder which
shall be subject to and comply with the provisions of Section 310(a)(1) of the
Trust Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such Corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of federal, state, territorial
or District of Columbia supervising or examining authority, then, for the
purposes of this Section 6.8, the combined capital and surplus of such
Corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section
6.8, it shall resign immediately in the manner and with the effect hereinafter
speci fied in this Article Six.
(b) The Trustee shall be subject to and comply with Section
310(b) of the Trust Indenture Act.
SECTION 6.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the
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acceptance of appointment by the successor Trustee in accordance with the
applica ble requirements of Section 6.10.
(b) The Trustee may resign at any time by giving 60 days'
written notice thereof to the Company and without assigning any reason thereto
or being responsible for any costs or expenses occasioned thereby. If the
instrument of acceptance by a successor Trustee required by Section 6.10 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may on behalf of the Company,
appoint in its place a reputable financial institution and the Company shall not
unreasonably object to such appoint ment or may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in aggregate principal amount of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months (in
the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), or
(2) the Trustee shall cease to be eligible under Section
6.8(a) and shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at least six
months (in the case of Global Securities, as evidenced in writing to the Trustee
by the relevant Depositary or Euroclear or Cedelbank), or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i)the Company, by a Board
Resolution, may remove the Trustee or (ii)subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Security for at least six months,
(in the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), may on
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behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Com pany, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate principal amount of
the Outstanding Securities delivered to the Com pany and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and super sede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner hereinafter
provided, any Holder who has been a bona fide Holder of a Security for at least
six months, ( in the case of Global Securities) as evidenced in writing to the
Trustee by the relevant Depositary or Euroclear or Cedelbank), may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 1.6. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
(g) The retiring Trustee shall not be liable for any of the
acts or omissions of any successor Trustee appointed hereunder.
SECTION 6.10 Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its fees, costs, expenses,
charges and any other amounts owed to it hereunder, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring
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Trustee hereunder. Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirm ing to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or converted
or with which it may be Consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article Six, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have been
authenti cated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee.
In all such cases such certificates shall have the full force and effect which
this Indenture provides that the certificate of authentication of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or to authenticate Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
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SECTION 6.12 Trustee Acting in Other Capacities. To the extent
that the Trustee, Banque Internationale a Luxembourg or any other Person
appointed hereunder as Trustee or Paying Agent is acting as Securities
Registrar, Common Depository, Depository or Paying Agent hereunder, the rights,
privileges, immunities and indemnities set forth in this Article Six shall apply
to the Trustee in the addi tional capacities listed above.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company or the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 3.12, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 7.2 Reports by Trustee. Within 60 days after May 30 of
each year commencing with the first May 30 after the first issuance of
Securities, the Trustee shall transmit to the Holders, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 30 if
required by TIA Section 313(a).
SECTION 7.3 Reports by Company. The Company shall file with
the Trustee and deliver to the Holders of Securities the reports and other
information required to be provided by it pursuant to Section 10.8.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not, in a single transaction or a series of related
transac tions, (i) consolidate with or merge into any other Person or Persons or
(ii) directly or indirectly, sell, lease, convey or transfer all or
substantially all of its assets (com puted on a Consolidated basis) to any other
Person or group of affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a Corporation organized under the
laws of The Netherlands or of the United States of America or any state or the
District of Columbia, any member of the European Economic Area or Switzerland
and ex pressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(3) unless such transaction is solely the merger of the
Company and one of its previously existing Wholly Owned Subsidiaries and which
transaction is not in connection with any other transaction, immediately after
giving effect to such transaction, on a pro forma basis, the Consolidated
resulting, surviving or transferee entity would immediately thereafter be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Debt Incurrence Ratio set forth in Section 10.11 or, if not, the Leverage Ratio
would immediately thereafter be no greater than the Leverage Ratio immediately
prior thereto;
(4) each Subsidiary Guarantor, unless such Subsidiary
Guarantor is the Person with which the Company has entered into a transaction
under this section, shall have by amendment to its Guarantee of the Securities
confirmed that its Guarantee of the Securities shall apply to the obligations of
the Company or the surviving entity in accordance with the Securities and this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certifi cate and an Opinion of Counsel, each in form attached hereto as Exhibits
F and G respectively, stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture, complies with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with, and, with respect to such Officers'
Certificate.
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For purposes of this Section 8.1, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 8.2 Successor Substituted. Upon any consolidation of
the Company with or merger of the Company with or into any other Corporation or
any conveyance, transfer or lease of the properties and assets of the Company
substan tially as an entirety to any Person or Persons in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and (except in the case of a lease) be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and, in the event of any such conveyance or transfer (except in the case of a
lease), the Company shall be dis charged of all obligations under this Indenture
and the Securities except with respect to any obligations that arise from, or
are related to, such transaction.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
con tained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default; or
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(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section 6.10;
or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture; provided that such action shall not adversely affect the
interests of the Holders in any material respect; or
(7) to provide for collateral securing the Company's
obligations under this Indenture and the Securities; or
(8) to provide for Guarantees by any other Person of the Com
pany's obligations pursuant to this Indenture and the Securities;
provided such actions shall not adversely affect the interests of Holders in any
material respect.
SECTION 9.2 Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
of the Outstanding Securities, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Indenture or of modifying in any manner the rights of
the Holders under this Indenture; provided, however, that:
(i) no such modification may, without the consent of Holders
of at least 66 2/3% in aggregate principal amount of
Outstanding Securi ties, modify the provisions of Section
10.10 (including the defined terms used therein) in a manner
adverse to the Holders; and
(ii) no such modification shall, without the consent of
the Holder of each Outstanding Security affected
thereby:
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(1) change the Stated Maturity of any Security, or reduce the
principal amount thereof or the rate of interest (or extend the time for payment
of interest, if any) thereon or any premium payable upon the redemption thereof
at the option of the Company, or change the place of payment where, or the coin
or currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of redemption
at the option of the Com pany, on or after the Redemption Date), or reduce the
Change of Control Purchase Price or the Asset Sale Offer Price after the
corresponding Change of Control or Asset Sale has occurred or alter the
provisions (including the defined terms used therein) regarding the right of the
Company to redeem the Securities in a manner adverse to the Holders, or
(2) reduce the percentage in principal amount of the
Outstanding Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this Indenture, or
(3) modify any of the waiver provisions, except to increase
any required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) cause the Securities to become subordinate in right of
payment to any other Indebtedness.
It shall not be necessary for any Act of Holders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 Execution of Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is permitted by this Indenture and an Officers' Certificate stating
that all conditions precedent to the execution of such supplemental indenture
have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
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SECTION 9.4 Effect of Indentures. Upon the execution of any
supplemental indenture under this Article Nine, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every supple
mental indenture executed pursuant to this Article Nine shall conform as a
matter of contract or law to the requirements of the Trust Indenture Act as then
in effect.
SECTION 9.6 Reference in Securities to Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine may bear a notation in form approved by the
Trustee and the Company as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 9.7 Notice of Indentures. Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the
provi sions of Section 9.2, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section
1.6, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and
Interest. (1) The Company covenants and agrees for the benefit of the Holders
that it shall duly and punctually pay the principal of (and premium, if any) and
interest on the Securities in accordance with the terms of the Securities and
this Indenture.
(2) For the purpose set forth in paragraph (1) above, the
Company shall, no later than 10:00 a.m., New York time, on the Business Day
first preceding each Payment Date, transfer to an account specified by the
Trustee such amount in immediately available and freely transferable U.S. Dollar
funds, in the case of Dollar Denominated Securities, or Euro funds in the case
of Euro Denominated Securities,
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as shall be sufficient for the purposes of the payment of principal of (and
premium, if any) and interest (and Liquidated Damages, if any) due to be paid on
the Securities on that date.
(3) The Company shall ensure that not later than the second
Business Day immediately preceding the date on which any payment is to be made
to the Trustee pursuant to this Section 10.1, the Company shall procure that a
copy of an irrevocable payment instruction to the bank through which the payment
is to be made shall be sent to the Trustee.
(4) Unless and until the full amount of any payment due on the
Securities has been made to the Trustee, or unless and until the Trustee is
satisfied that such payment will be made, neither it nor the other Paying Agents
shall be bound to make payments in respect of the Securities hereunder.
(5) If the Trustee or a Paying Agent pays any amounts to the
Holders or to any other Agent at a time when it has not received payment in full
from the Company in respect of such Securities, the Company shall, in addition
to paying amounts due under Section 10.1(2), pay to the Trustee on demand
interest thereon at such a rate as the Trustee shall certify as the aggregate of
1% per annum and the cost of funding any such payment made by it (as determined
by the Trustee) until the receipt in full by the Trustee of the funds due to it
pursuant to Section 10.1(2).
SECTION 10.2 Maintenance of Office or Agency. The Company
shall maintain in The City of New York and London, and for so long as the Securi
ties are listed on the Luxembourg Stock Exchange, in Luxembourg, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands (other than service of process) to or upon the Company in
respect of the Securities and this Indenture may be served. The Corporate Trust
Office of the Trustee shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company shall give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Com pany hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
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The Company hereby initially designates (1) the Trustee at its
address set forth in Section 1.5 hereof as its office or agency in London and
Citibank, N.A. (New York branch), 111 Wall Street, New York, New York as its
office or agency in New York, for such purposes, (ii) Banque Internationale a
Luxembourg, at its office or agency in Luxembourg for such purposes and (iii)
the Paying Agent at its address set forth in Section 1.5 hereof.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York and, for so
long as the Securities are listed on the Luxembourg Stock Exchange, in
Luxembourg, for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
SECTION 10.3 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it shall, on or
before each due date of the principal of (or premium, if any) or interest on any
of the Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal of (or premium, if any)
or interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Securities, it shall, on or before each due date of the principal of (or
premium, if any) or interest on any Securities, deposit with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of such action or
any failure so to act.
The Company shall cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section 10.3, that such Paying Agent shall:
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(1) hold all sums held by it for the payment of the principal,
premium, if any, or interest on Securities in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of
principal, premium, if any, or interest, of which it is aware;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith act under the direction of
the Trustee and pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) indemnify the Trustee and its officers, directors,
employees and agents against any loss, cost or liability caused by, or incurred
as a result of, such Paying Agent's acts or omissions.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal of, premium,
if any, or interest on any Security and remaining unclaimed for two years after
such principal, premium or interest has become due and payable shall be paid to
the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter, as
an unsecured general creditor, look only to the Company for payment thereof, and
all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York and in London, notice that such money remains
unclaimed and that, after a date specified
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therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
SECTION 10.4 Corporate Existence. Subject to Article Eight,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate existence, rights (charter and
statutory) and franchises of the Company and each Subsidiary; provided, however,
that the Com pany shall not be required to preserve, with respect to the
Company, any such right or franchise or, with respect to any Subsidiary (subject
to all the other covenants in this Indenture), any such corporate existence,
right or franchise, if the Supervisory Board of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.5 Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.6 Maintenance of Properties. The Company shall
cause all properties owned by the Company or any Subsidiary or used or held for
use in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 10.6 shall prevent the Company
from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
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SECTION 10.7 Insurance. The Company shall at all times keep
all of its and its Subsidiaries' properties which are of an insurable nature
insured with insurers, believed by the Company to be responsible, against loss
or damage to the extent that property of similar character is usually so insured
by Corporations similarly situated and owning like properties.
SECTION 10.8 Provision of Financial Statements. The Company
has agreed that, for so long as any Securities remain Outstanding, whether or
not the Company is subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will deliver to the Trustee and, to each Holder
and to prospective purchasers of Securities identified to the Company, within 15
days after the Company is or would have been (if the Company were subject to
such reporting obligations) required to file such with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that would have been included in reports filed with the SEC, if the Company were
subject to the require ments of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC, and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required and, unless the SEC will not accept such reports, file with
the SEC the annual, quarterly and other reports which it is or would have been
required to file with the SEC.
Following the effectiveness of the Registration Statement, the
Company will file with the Trustee, at the time it files them with the SEC,
copies of the annual and quarterly reports and the information, documents and
other reports that the Company is required to file with the SEC under Section
13(a) or 15(d) of the Exchange Act. If the Company ceases to be required to file
SEC reports under the Exchange Act, the Company will nevertheless continue to
file such reports with the Trustee. The Company will furnish copies of the SEC
reports to investors who request them in writing.
SECTION 10.9 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, on the date of
delivery of each quarterly report to be delivered pursuant to Section 10.8, and
within 14 days of a request by the Trustee, a brief certificate from the
principal executive officer, principal financial officer or principal accounting
officer as to his or her knowledge of the Company's compliance with all
conditions and covenants under
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this Indenture. For purposes of this Section 10.9(a), such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the Trustee for or the Holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than $50,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
SECTION 10.10 Purchase of Securities upon Change of Control.
(1) (a) Upon the occurrence of a Change of Control, the Com
pany will be required to make an offer to each Holder to purchase for cash all
or a portion of such Holder's Securities (provided that the principal amount of
such Securities must be $1,000 (or (U)1,000, as applicable) or an integral
multiple thereof) pursuant to the offer described below (the "Change of Control
Offer"), at a purchase price in cash equal to 101% of the principal amount
thereof plus accrued and unpaid interest (and Liquidated Damages, if any) to the
date of purchase (the "Change of Control Purchase Price").
(b) Within 10 Business Days following a Change of Control, the
Company must send a notice to each Holder which notice shall govern the terms of
the Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no later than 35 Business Days from the date of the
Change of Control, other than as may be required by law (the "Change of Control
Purchase Date"). The Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, by delivery of a form entitled
"Option of Holder to Elect Purchase", obtainable from the Trustee or any Paying
Agent substan tially in the form of Exhibit I, completed, to the Paying Agent at
the address speci fied in the notice prior to the close of business on the third
Business Day prior to the Change of Control Purchase Date. The Paying Agent
promptly will pay the Holders
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of Securities so accepted an amount equal to the Change of Control Purchase
Price (together with accrued and unpaid interest and Liquidated Damages, if any)
and the Trustee promptly will authenticate and deliver to such Holders a new
Security equal in principal amount to any unpurchased portion of the Security
surrendered. The Company will publicly announce the results of the Change of
Control Offer on or as soon as practicable after the Change of Control Purchase
Date.
The notice referred to above shall be a written offer (the
"Offer") sent by the Company by first class mail, postage prepaid, to each
Holder of Securities at its address appearing in the Security Register on the
date of the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the Change of Control Purchase Price. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Change of Control Offer which shall be, subject
to any contrary requirements of applicable law, 20 Business Days after the date
of the Offer and a settlement date (the "Change of Control Purchase Date") for
purchase of Securities within five Business Days after the Expiration Date. The
Company shall notify the Trustee in writing at least 15 Business Days, or a
shorter period that is acceptable to the Trustee, prior to the mailing of the
Offer of the Company's obligation to make a Change of Control Offer, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable the Holders to make an informed
decision with respect to the Change of Control Offer, which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Manage ment's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to Section 10.8 (which requirements may be satisfied by delivery of the
documents together with the Offer), (ii) a description of material developments
in the Company's business subsequent to the date of the latest of the financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Change of Control Offer), (iii) if applicable,
appropriate pro forma financial informa tion concerning the Change of Control
Offer and the events requiring the Company to make the Change of Control Offer
and (iv) any other information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable the Holders to tender Securities pursuant to the Change of Control Offer.
The Offer shall also state:
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(a) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(b) the Expiration Date and the Change of Control
Purchase Date;
(c) the aggregate principal amount of the Outstanding
Securities offered to be purchased by the Company in the Change of Control
Offer, including, if less than 100%, the manner by which the amount has been
determined pursuant to the Section hereof requiring the Change of Control Offer
(the "Purchase Amount");
(d) the Change of Control Purchase Price;
(e) that the Holder may tender all or any portion of the
Securities registered in the name of the Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000 or (U)1,000
principal amount;
(f) the place or places where the Securities are to be
surrendered for tender pursuant to the Change of Control Offer;
(g) that any of the Securities not tendered or tendered but
not purchased by the Company will continue to accrue interest;
(h) that on the Change of Control Purchase Date the Purchase
Price will become due and payable upon the Securities being accepted for payment
pursuant to the Change of Control Offer and that any interest shall cease to
accrue on and after the Change of Control Purchase Date;
(i) that each Holder electing to tender the securities in the
purchase will be required to surrender the Securities at the place or places
specified in the Offer prior to the close of business on the Expiration Date
with the Securities being, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
signed by, the Holder or his attorney duly authorized in writing;
(j) that Holders will be entitled to withdraw all or any
portion of the Securities tendered if the Company or its Paying Agent receives,
not later than the close of business on the Expiration Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Securities the Holder
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tendered, the certificate number of the Securities the Holder tendered and a
statement that such Holder is withdrawing all or a portion of his tender;
(k) that (i) if the Securities in an aggregate principal
amount less than or equal to the Purchase Amount are duly tendered and not
withdrawn in the Purchase, the Company shall purchase all the Securities and
(ii) if the Securities in an aggregate principal amount in excess of the
Purchase Amount are tendered and not withdrawn in the Change of Control Offer,
the Company shall purchase the Securi ties having an aggregate principal amount
equal to the Purchase Amount on a pro rata basis with adjustments that the
Company may deem appropriate so that only Securities in denominations of $1,000
or (U)1,000 or integral multiples thereof shall be purchased; and
(l) that in the case of any Holder whose Securities are
purchased only in part, the Company shall sign, and the Trustee shall
authenticate and deliver to the Holder of the Securities without service charge,
the new Security or Securities, of any authorized denomination as requested by
the Holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Securities so tendered.
Any Offer to Purchase shall be governed by and effected in
accor dance with the Offer for such Change of Control Offer.
The Company will not be required to make an offer to purchase
any series of Securities upon a Change of Control if, before the Change of
Control occurs, it has exercised its right to redeem all of the Securities of
such series as described under Section 11.1.
(2) On or before the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) cash sufficient to pay the purchase price (together
with accrued and unpaid interest and Liquidated Damages, if any) of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so tendered together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company.
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(3) In the event that the Company makes a Change of Control
Offer, the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
(4) If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any)
due on such Interest Payment Date will be paid to the Person in whose name a
Security is registered at the close of business on such Record Date, and such
interest (and Liquidated Damages, if applicable) will not be payable to Holders
who tender the Securities pursuant to the Change of Control Offer.
Notwithstanding anything contained in this Indenture to the
contrary, the Company will not, any will not permit any of its Subsidiaries to,
incur any Indebtedness that is contractually subordinate to any other
Indebtedness of the Company unless such Indebtedness is at least as subordinate
to the Securities.
SECTION 10.11 Limitation on Incurrence of Additional Indebted
ness and Disqualified Capital Stock. (1) The Company may not, and may not permit
any Subsidiary to, directly or indirectly, issue, assume, guaranty, incur,
become directly or indirectly liable with respect to (including as a result of
an Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness), other than Permitted Indebtedness. Notwithstanding the foregoing
if:
(i) no Default or Event of Default shall have occurred and be
continu ing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness; and
(ii) on the date of such incurrence (the "Incurrence Date"),
either (i) the Leverage Ratio of the Company for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a pro forma
basis to such incurrence of such Indebtedness and, to the extent set forth in
the definition of Leverage Ratio, the use of proceeds thereof, would not exceed
7.0 to 1.0 (the "Debt Incurrence Ratio"), (ii) the Consolidated Coverage Ratio
of the Company for the Reference Period immediately preceding the Incurrence
Date, after giving effect on a pro forma basis to such incurrence of such
Indebtedness and, to the extent set forth in the definition
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of Consolidated Coverage Ratio, the use of proceeds thereof, would not be less
than 1.75 to 1.0, or (iii) after giving effect on a pro forma basis to such
incurrence of Indebtedness, and, to the extent used to retire other
Indebtedness, the use of proceeds therefrom, the amount of Indebtedness
Outstanding of the Company would not exceed 225% of the Consolidated Invested
Equity Capital of the Company,
then the Company may incur such Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness).
(2) The foregoing limitations of paragraph (1) of this Section 10.11
will not prohibit:
(a) if no Event of Default shall have occurred and be
continuing, the incurrence by the Company or its Subsidiaries of Indebtedness in
an aggregate amount incurred and Outstanding at any time pursuant to this
subparagraph (a) (plus any refinancing indebtedness incurred to retire, defease,
refinance, replace or refund such Indebtedness) of up to $400,000,000 (or the
equivalent thereof, at the time of incurrence, in the applicable foreign
currencies);
(b) the incurrence by the Company and its Subsidiaries of
Indebtedness pursuant to the Credit Agreement in an aggregate amount incurred
and Outstanding at any time pursuant to this paragraph (b) (plus any refinancing
indebt edness incurred to retire, defease, refinance, replace or refund such
Indebtedness) of up to (U)1 billion, minus the amount of any such Indebtedness
(i) retired with the Net Cash Proceeds from any Asset Sale applied to reduce
permanently the Outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 10.16 or (ii) assumed by a transferee in an
Asset Sale;
(c) the incurrence by any Subsidiary of Indebtedness, if on
the Incurrence Date either (1) the Leverage Ratio of such Subsidiary of the
Company for the Reference Period immediately preceding the Incurrence Date,
after giving effect on a pro forma basis to such incurrence of such Indebtedness
and to the extent set forth in the definition of Leverage Ratio, the use of
proceeds thereof, would be no more than 7.0 to 1.0, or (2) the Consolidated
Coverage Ratio of such Subsidiary for the Reference Period immediately preceding
the Incurrence Date, after giving effect on a pro forma basis to such incurrence
of such Indebtedness and, to the extent set forth in the definition of
Consolidated Coverage Ratio, the use of proceeds thereof, would be no less than
1.75 to 1.00, or (3) after giving effect on a pro forma basis to such incurrence
of such Indebtedness, and, to the extent used to retire other Indebted ness, the
use of proceeds therefrom, the amount of Indebtedness Outstanding of such
Subsidiary would not exceed 225% of the Consolidated Invested Equity Capital of
such Subsidiary, provided in the case of each of clauses (c)(1), (2) and (3),
the net proceeds therefrom are used in a Related Business of the Company or any
affiliated company of the Company, and provided, further, that for the purposes
of this clause (c) a Subsidiary may be a co-obligor or guarantor on such
Indebtedness of another Subsidiary of the Company (A) if such co-obligor or
guarantor Subsidiary owns (either directly or indirectly through one or more
Subsidiaries of the Company) all or a portion of the Equity Interests of the
Subsidiary of the Company that incurred such Indebtedness, (B) if all or a
portion of the Equity Interests of such co-obligor or guarantor Subsidiary is
owned (either directly or indirectly through one or more Subsidiaries of the
Company) by the Subsidiary that incurred such Indebtedness or (C) if such
co-obligor or guarantor Subsidiary owns (either directly or indirectly through
one or more Subsidiaries of the Company) all or a portion of the business that
will use the proceeds of such Indebtedness; and
(d) if no Event of Default shall have occurred and be
continuing, the incurrence by Subsidiaries of the Company of Indebtedness
pursuant to the Existing Agreements up to, but not in excess of the maximum
applicable amounts of Indebtedness available for borrowing pursuant to the terms
of each such Existing Agreement as in effect on the date of the Indenture;
provided that, in determining the maximum applicable amounts available, it shall
be assumed that the Company satisfies any applicable conditions to borrowing.
Indebtedness (including Disqualified Capital Stock) of any Person which
is Outstanding at the time such Person becomes a Subsidiary of the Company
(includ ing upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or Consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
Consolidated with the Company or a Subsidiary of the Company, as applicable.
Upon each incurrence, the Company may designate pursuant to which
provision of this Section 10.11 such Indebtedness is being incurred and such
Indebt edness shall not be deemed to have been incurred or Outstanding under any
other provision of this Section 10.11, except as stated otherwise in the
foregoing provi sions.
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SECTION 10.12 Limitation on Restricted Payments. (1) The
Company may not, and may not permit any of its Subsidiaries to, directly or indi
rectly, make any Restricted Payment if, after giving effect to such Restricted
Pay ment on a pro forma basis:
(A) a Default or an Event of Default shall have occurred and be
continuing,
(B) the Company is not permitted to incur at least $1.00 (or its
foreign currency equivalent) of additional Indebtedness pursuant to the Debt
Incurrence Ratio in Section 10.11, or
(C) the aggregate amount of all Restricted Payments made by the Com
pany and its Subsidiaries, including after giving effect to such proposed
Restricted Payment, on and after the Issue Date, would exceed, without
duplication (and except to the extent otherwise credited pursuant to clause (g)
of the definition of "Permitted Investment"), the sum of:
(a) (i) the amount of the cumulative Consolidated EBITDA of
the Company, if positive, less 150% of the cumulative Consolidated Fixed Charges
of the Company, for the period (taken as one accounting period), commencing on
the first day of the first full fiscal quarter commencing after the Issue Date,
to and including the last day of the fiscal quarter ended immediately prior to
the date of each such calculation for which Consolidated financial statements of
the Company are available, provided that such sum shall not be deemed to result
in an amount less than zero for purposes of any calculation pursuant to this
clause (C)(a)(i); or (ii) if such cumulative Consolidated EBITDA of the Company
is zero or less, then the amount of such cumulative Consolidated EBITDA for such
period; plus
(b) the aggregate Net Cash Proceeds received by the Company
from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of
the Company and (ii) to the extent applied in connection with a Qualified
Exchange), after the Issue Date; plus
(c) to the extent that any Investment (other than a Permitted
Investment) that was made after the Issue Date is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the
amount of cash or Cash Equivalents received by the Company, but only to the
extent of the lesser of (i) the cash or Cash Equivalents transferred as a return
of capital with respect to such
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Investment and (ii) the initial amount of such Investment (in either case, less
the cost of disposition, if any); plus
(d) in the event an Unrestricted Subsidiary is designated as a
Subsidiary, an amount equal to fair market value, at such time, of the
Investment of the Company and its Subsidiaries made after the Issue Date;
provided, however, that such amount shall not exceed the amount of Investments
previously made in such Subsidiary that were counted as Restricted Payments
pursuant to this covenant.
(2) (a) The foregoing clauses (B) and (C) of Section 10.12(1),
however, will not prohibit: (i) any dividend, distribution or payment of
dividends on Disqualified Capital Stock permitted by Section 10.11; and (ii) any
repurchase by the Company of any shares of any class or options to acquire such
shares from any current, future or former directors, officers or employees of
the Company or any of its Subsidiaries or Affiliates, provided that the
aggregate amount of all the repur chases made under this clause shall not exceed
$10,000,000 in any twelve-month period (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $14,000,000 in any calendar year);
provided, further, that such amount in any calendar year may be increased by an
amount not to exceed (1) the cash proceeds from the sale of Capital Stock of the
Company to its Supervisory Board members, management board members or officers
of the Company and its Subsidiaries that occurs after the Issue Date, plus (2)
the cash proceeds of key man life insurance policies received by the Company and
its Subsidiaries after the Issue Date;
and (b) the foregoing clauses (A), (B) and (C) of Section 10.12(1) will not
prohibit:
(i) any dividend, distribution or other payments by any Subsid
iary of the Company on its Equity Interests that is paid pro rata to all holders
of such Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend could have
been made on the date of such declaration in compliance with the foregoing
provisions; or
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(iv) the payment of dividends by the Company in cash or
Qualified Capital Stock pursuant to the terms of any Parent Stock Instrument
that is incurred or issued (as applicable) in compliance with this Indenture.
The full amount of any Restricted Payment made pursuant to
para graphs 2(a)(i), (ii) and 2(b)(i), (iii) and (iv), but not pursuant to
paragraph 2(b)(ii), however, will be counted as Restricted Payments made for
purposes of the calcula tion of the aggregate amount of Restricted Payments
available to be made referred to in Section 10.12(1)(C).
For purposes of this section, the amount of any Restricted
Payment made or returned, if other than in cash, shall be the fair market value
thereof, as determined in the good faith reasonable judgment of the Company's
Supervisory Board, unless stated otherwise, at the time made or returned, as
applicable. Addition ally, on the date of each Restricted Payment, the Company
shall deliver an Officers' Certificate to the respective Trustee describing in
reasonable detail the nature of such Restricted Payment, stating the amount of
such Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
SECTION 10.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. (1) The Company may not, and may not permit
any Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any consensual restriction on the ability of any
Subsidiary:
(i) to pay dividends, in cash or otherwise, or make any
other distributions to or on behalf of or pay any obligation to or on behalf of
the Company or any Subsidiary of the Company;
(ii) to make or pay loans or advances to or on behalf of
the Company or any Subsidiary of the Company; or
(iii) to transfer property or assets to or on behalf of the
Company or any Subsidiary of the Company,
except:
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(a) restrictions imposed by the Securities or the Discount
Notes or the Indenture or the Discount Notes Indenture or by other Indebtedness
of the Company ranking pari passu with the Securities and the Discount Notes,
provided that such restrictions are no more restrictive than those imposed by
the Indenture and the Securities;
(b) restrictions imposed by applicable law;
(c) restrictions under Indebtedness Outstanding on the Issue
Date, including pursuant to the Credit Agreement;
(d) restrictions under any Acquired Indebtedness not incurred
in violation of the Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company or any of
its Subsidiar ies, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition, and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired;
(e) any such restriction or requirement imposed by
Indebtedness incurred under the Credit Agreement pursuant to Section 10.11,
provided that such restriction or requirement is no more restrictive than that
imposed by the Credit Agreement as of the Issue Date;
(f) with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement which has been entered into for the sale or
disposi tion of all or substantially all of the Equity Interests or assets of
such Subsidiary, provided that such restrictions apply solely to the Equity
Interests or assets of such Subsidiary which are being sold;
(g) restrictions under Purchase Money Indebtedness not
incurred in violation of the Indenture, provided that such restrictions relate
only to the property financed with such Indebtedness;
(h) with respect to any Subsidiary, restrictions contained in
the terms of any Indebtedness incurred in compliance with the Indenture, or any
agree ment pursuant to which such Indebtedness was issued, if (A) the
encumbrance or restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such Indebtedness or
agreement, (B) the Company
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shall have reasonably determined that the encumbrance or restriction is not
materi ally more disadvantageous to the Holders of the Securities than is
customary in comparable financings, and (C) the Company shall have reasonably
determined that any such encumbrance or restriction will not materially affect
the Company's ability to make principal or interest payments on the Securities;
and
(i) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d), or (g),
or this clause (i), of this paragraph that are not more restrictive than those
being replaced and do not apply to any other Person or assets than those that
would have been covered by the restrictions in the Indebtedness so refinanced.
(2) Notwithstanding the provisions of Section 10.13(1), (a)
custom ary provisions restricting subletting, assignment or transfer of any
lease, license, conveyance, or similar document or instrument entered into in
the ordinary course of business, consistent with industry practice and (b) any
asset or property subject to a Lien which is not prohibited to exist with
respect to such asset pursuant to the terms of this Indenture may be subject to
customary restrictions on the transfer or disposi tion thereof pursuant to such
Lien.
SECTION 10.14 Limitation on Liens Securing Indebtedness. The
Company may not, and may not permit any Subsidiary to, create, incur, assume or
suffer to exist any Lien of any kind, other than Permitted Liens, upon any of
their respective assets now owned or acquired on or after the date of this
Indenture or upon any income or profits therefrom securing any Indebtedness of
the Company, unless the Company provides, and causes its Subsidiaries to
provide, concurrently therewith, that the Securities are equally and ratably so
secured; provided that if such Indebtedness is Subordinated Indebtedness, the
Lien securing such Subordinated Indebtedness shall be subordinate and junior to
the Lien securing the Securities with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Securities.
SECTION 10.15 Limitation on Issuances of Guarantees by
Subsidiar ies. (1) Notwithstanding the other provisions of this Indenture, the
Company may not permit any Subsidiary to, directly or indirectly, Guarantee any
Indebtedness of the Company (other than Indebtedness incurred pursuant to the
Credit Agreement in accordance with the terms of this Indenture) ("Guaranteed
Indebtedness"), then such Subsidiary must become a Guarantor (a "Subsidiary
Guarantor") of the Securities on a basis such that the Subsidiary's Guarantee of
the Securities shall stand in substan tially the same relative ranking in right
of payment to the guarantee of such other Indebtedness as the Securities stand
in relative ranking to such other Indebtedness; provided that this paragraph
shall not be applicable to any guarantee by any Subsid iary that (a) existed at
the time such Person became a Subsidiary of the Company and (b) was not incurred
in connection with, or in contemplation of, such Person becom ing a Subsidiary
of the Company.
(2) Subsidiary Guarantees shall be automatically released upon
(i) the sale or other disposition of all or substantially all of the Company's
and its Subsid iaries' beneficial interest in the Equity Interests or assets of
such Subsidiary Guaran tor, provided that thereafter such Subsidiary Guarantor
shall cease to be a Subsidiary of the Company, (ii) the consolidation or merger
of any such Subsidiary Guarantor with any Person other than the Company or a
Subsidiary of the Company if, as a result of such consolidation or merger, such
Subsidiary Guarantor ceases to be a Subsidiary of the Company (and shall not be
a Subsidiary of the successor to the Company), (iii) a Legal Defeasance, or (iv)
the unconditional and complete release of such Subsidiary Guarantor from its
Guarantee of all Guaranteed Indebtedness.
SECTION 10.16 Limitation on Sale of Assets and Subsidiary
Stock.
(1) The Company may not, and may not permit any Subsidiary to,
in one or a series of related transactions, convey, sell, transfer, assign or
otherwise dispose of, directly or indirectly, any of the Company's or such
Subsidiary's property, business or assets (including by merger or consolidation
in the case of a Subsidiary of the Company), and including any sale or other
transfer or issuance of any Equity Interests of any Subsidiary of the Company,
whether by the Company or a Subsid iary or through the issuance, sale or
transfer of Equity Interests by a Subsidiary of the Company, and including any
sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(A) (1) the amount equal to the Net Cash Proceeds therefrom (the "Asset
Sale Offer Amount") is applied
(i) within 360 days (or 540 days in the case of a Special Character
Asset Sale) after the date of such Asset Sale to the optional
redemption of the Securities in accordance with the terms of the
Indenture and other Indebtedness of the Company ranking pari
passu in right of pay ment with the Securities and with similar
provisions requiring the Company to redeem such Indebtedness with
the proceeds from such Asset Sale, pro
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rata in proportion to the respective principal amounts (or accreted
values in the case of Indebtedness issued with original issue discount)
of the Securities and such other Indebtedness then Outstanding, or
(ii) within 360 days (or 540 days in the case of a Special Character
Asset Sale) after the date of such Asset Sale to the repur chase
of the Securities and such other Indebtedness ranking pro rata in
right of payment with the Securities and with similar provisions
requiring the Company to make an offer to purchase such
Indebtedness with the proceeds from such Asset Sale pursuant to a
cash offer (subject only to conditions required by applicable
law, if any) pro rata in proportion to the respective principal
amounts (or accreted values in the case of Indebtedness issued
with original issue discount) of the Securities and such other
Indebtedness then Outstanding (the "Asset Sale Offer") at a
purchase price of 100% of princi pal amount (or accreted value in
the case of Indebtedness issued with original issue discount)
(the "Asset Sale Offer Price") together with accrued and unpaid
interest and Liquidated Damages, if any, to the date of payment,
made within 360 days (or 540 days in the case of a Special
Character Asset Sale) of such Asset Sale, or
(iii)within 360 days (or 540 days in the case of a Special Character
Asset Sale), to the repayment of Indebtedness then Out standing
pursuant to the Credit Agreement or, if required by the terms of
such Indebtedness, of Indebtedness issued by a Subsidiary of the
Company (in respect of which Indebtedness the Company is not a
direct or contingent obligor except by virtue of the Company's
pledge of Equity Interests of, and other interests of or claim
on, such Subsidiary or the Company's guarantee of such
Subsidiary's Indebtedness to the extent, in either case, the
recourse against the Company is limited to such Equity Interests
or claim), or
(2) within 360 days (or 540 days in the case of a Special Character
Asset Sale) following such Asset Sale, the Asset Sale Offer
Amount is invested in assets and property which in the good faith
reasonable judgment of the Company will immediately constitute or
be a part of a Related Business of the Company or such Subsidiary
(if it continues to be a Subsidiary) immediately following such
transaction or is used to make Permitted Investments in the
Company or a Subsidiary of the Company (other than Cash
Equivalents or securities of the Company or any Person
controlling the Company except as permit ted by the Indenture),
provided that (i) 50% of the Net Cash Proceeds from Special
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Character Asset Sales and 100% of the net proceeds from any Asset
Sale of an Investment made in reliance on clause (g) of the
definition of "Permitted Invest ments" may be reinvested in any
Permitted Investment (other than, in either case, Cash
Equivalents or securities of the Company or any Person
controlling the Com pany except as permitted by the Indenture)
which in the good faith reasonable judgment of the Company will
immediately constitute or be a part of a Related Business and
(ii) 100% of the net proceeds from an Asset Sale constituting the
sale of an Investment in any Person (excluding a Person that
would be Consolidated with the Company under GAAP and excluding
Related Assets of the Company or any of its Subsidiaries) in
which the Company or any of its Subsidiaries has an Equity
Interest may be reinvested in Investments permitted by clause (e)
or (f) of the definition of "Permitted Investments,"
(B) at least 75% of the total consideration for such Asset Sale or series
of related Asset Sales consists of cash, Cash Equivalents, Replacement
Assets or the assumption of Indebtedness of a Subsidiary. For purposes
of this subparagraph (B), total consideration received means the total
consideration received for such Asset Sales, minus the amount of (a)
Purchase Money Indebtedness secured solely by the assets sold and
assumed by a transferee, provided that the Company and the
Subsidiaries are released from any obligation in connection therewith;
and (b) property that within 30 days of such Asset Sale is converted
into cash or Cash Equivalents, provided that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the
original Asset Sale for which such property was received.
(C) no Default or Event of Default shall have occurred and be continuing
at the time of, or would occur after giving effect to, on a pro forma
basis, such Asset Sale, and
(D) in the case of a transaction or series of related transac tions
exceeding $15,000,000 (or the foreign currency equivalent on the date
of the transaction) of consideration to any party thereto, the
Supervisory Board of the Company determines in its good faith
reasonable judgment that the Company or such Subsidiary, as
applicable, receives fair market value for such Asset Sale.
(2) An acquisition of Securities pursuant to an Asset Sale Offer may
be deferred until the accumulated Net Cash Proceeds from Asset
Sales not applied to the uses set forth in 1(a)(i), (iii), or
1(b) above (the "Excess Proceeds") exceeds $50,000,000 (or the
foreign currency equivalent thereof), provided that, in
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the case of an Asset Sale by a Subsidiary of the Company that is not a Wholly
Owned Subsidiary, only the Company's and its Subsidiaries' pro rata portion of
such Net Cash Proceeds shall constitute Net Cash Proceeds subject to the
provisions of this Section 10.16. Each Asset Sale Offer shall remain open for 20
Business Days following its commencement (the "Asset Sale Offer Period"). Upon
expiration of the Asset Sale Offer Period, the Company shall apply the Asset
Sale Offer Amount, plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together
with accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Securities and such other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Company may apply any remaining Net Cash Proceeds to any purpose consistent with
this Indenture, and following the consummation of each Asset Sale Offer the
Excess Proceeds amount shall be reset to zero.
Notwithstanding, and without complying with, the foregoing
provi sions of this Section 10.16:
(u) the Company and its Subsidiaries may, in the ordinary course of
business, (a) convey, sell, transfer, assign or otherwise dispose of
inventory and other assets acquired and held for resale in the
ordinary course of business and (b) liquidate and otherwise dispose of
Cash Equivalents;
(v) the Company and its Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of property, businesses, or assets pursuant to and
in accordance with Article Eight.
(w) the Company and its Subsidiaries may sell or dispose of damaged,
worn out or other obsolete personal property in the ordinary
course of business so long as such property is no longer
necessary for the proper conduct of the business of the Company
or such Subsidiary, as applicable, and the Company and its
Subsidiaries may replace personal property in the ordinary course
of business so long as the replacement property is necessary for
the proper conduct of the business of the Company or such
Subsidiary, as applicable, and sell or dispose of such replaced
prop erty in the ordinary course;
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(x) the Company and its Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of property, businesses, or assets to
the Company or any of its Subsidiaries;
(y) the Company and each of its Subsidiaries may surrender or waive
contract rights or settle, release or surrender contract, tort or
other claims of any kind in the ordinary course of business or
grant Liens not otherwise prohibited by the Indenture;
(z) the Company and its Subsidiaries may ex change assets for
property, businesses, or assets held by any Person (includ ing by
merger or consolidation in the case of a Subsidiary of the
Company); provided that (a) property, businesses and assets,
which in one or a series of related transactions exceeds
$15,000,000 in value, received by the Company or such
Subsidiaries in any such exchange in the good faith reasonable
judgment of the Supervisory Board of the Company will immediately
consti tute, be a part of, or be used in, a Related Business of
the Company or such Subsidiaries, (b) the Supervisory Board of
the Company has determined that the terms of any exchange, which
in one or a series of related transactions exceeds $15,000,000 in
fair market value, are fair and reasonable, and (c) any cash or
Cash Equivalents received by the Company or any Subsidiary in
such exchange shall be treated as having been received as a
result of an Asset Sale.
All Net Cash Proceeds from an Event of Loss shall be used all within
the period and as otherwise provided above in clause (1) of the first paragraph
of this Section 10.16.
(3) Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the provisions
of any applicable securities laws, rules, or regulations conflict with the
provisions of this section, compliance by the Company or any of its subsidiaries
with such laws, rules or regulations shall not in and of itself cause a breach
of its obligations under this section.
(4) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated
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Damages, if any, due on such Interest Payment Date) will be paid to the Person
in whose name a Security is registered at the close of business on such Record
Date, and such interest (or Liquidated Damages, if applicable) will not be
payable to Holders who tender Securities pursuant to such Asset Sale Offer.
SECTION 10.17 Limitation on Transactions with Affiliates. The
Company may not, and may not permit any Subsidiary on or after the Issue Date
to, enter into any contract, agreement, arrangement or transaction with any
Affiliate of the Company (an "Affiliate Transaction"), or any series of related
Affiliate Transac tions, other than Exempted Affiliate Transactions,
(1) unless it is determined by the Supervisory Board as
evidenced by a Board Resolution that the terms of such Affiliate Transaction are
fair and reasonable to the Company and no less favorable to the Company than
could have been obtained in an arm's length transaction with a non-Affiliate,
and
(2) if involving consideration to either party in excess of
$15,000,000 (or its foreign currency equivalent), unless such Affiliate
Transaction(s) is evidenced by an Officers' Certificate addressed and delivered
to the Trustee certifying that such Affiliate Transaction (or Affiliate
Transactions) has been approved by a majority of the members of the Supervisory
Board of the Company that are disinterested in such transaction, if there are
any directors who are so disinterested, and
(3) if involving consideration to either party in excess of
$15,000,000 or $30,000,000 if there are disinterested directors (or in each case
its foreign currency equivalent), unless in addition the Company, prior to the
consum mation thereof, obtains a written favorable opinion as to the fairness of
such transac tion to the Company from a financial point of view from an
independent investment banking firm of national reputation in the United States
or, if pertaining to a matter for which such investment banking firms do not
customarily render such opinions, an appraisal or valuation firm of national
reputation in the United States.
SECTION 10.18 Additional Amounts. All payments made by the
Company under or with respect to the Securities will be made free and clear of
and without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of any Taxing Authority within The
Netherlands, or within any other jurisdiction in which the Company is organized
or engaged in business, or any other jurisdiction if payments on the Securities
are made from
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within such jurisdiction (each of the above, a "Relevant Taxing Jurisdiction"),
unless the Company is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof.
If the Company is required to withhold or deduct any amount
for or on account of Taxes (other than any estate, inheritance, gift, sales,
excise, transfer, wealth or personal property tax, or any similar non-income
tax, assessment or governmental charge) imposed by a Taxing Authority within a
Relevant Taxing Jurisdiction, from any payment made under or with respect to the
Securities, the Company will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of such Additional Amounts) will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no such Additional Amounts shall be payable
with respect to a pay ment made to a Holder with respect to any Tax or portion
thereof that would not have been imposed, payable or due:
(1) but for the existence of any present or former connection
between the Holder (or the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities) and The Netherlands or other
jurisdiction in which the Company is organized or engaged in business other than
the holding of the Securities;
(2) but for the failure of the Holder to use its reasonable
best efforts to comply upon written notice by the Company delivered 60 days
prior to any payment date with a request by the Company to satisfy any
certification, identifica tion or other reporting requirements which shall
include any applicable forms or instructions whether imposed by statute, treaty,
regulation or administrative practice concerning the nationality or residence of
the Holder or the connection of the Holder with The Netherlands or other
jurisdiction in which the Company is organized or engaged in business:
(i) provided that Holder's failure to comply with the
60 day requirement described above shall not relieve the Company of the
Company's obligation to pay Additional Amounts if the Holder's
application for any requested certification, identification or other
reporting requirement remains Outstanding or is otherwise pending and
the Holder continues to use its reasonable best efforts to obtain such
information;
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(ii) provided, further that the Company shall pay any
Additional Amounts not paid on any payment date as a result of the
operation of this clause (2) upon the satisfaction of the relevant
certification, identification or other reporting requirements within 30
days after such payment date, provided that the Company shall not, as a
result of such satisfaction occurring after the payment date, have
already irrevocably paid to the relevant taxing authority the withheld
or deducted amount in respect of which such Additional Amounts would
have been payable;
(3) but for the failure of the Holder (or the beneficial
individual owner of, or individual ultimately entitled to obtain an interest in,
such Securities) who is an individual citizen or resident of a member state of
the European Union to comply with a written notice by the Company delivered 60
days prior to any pay ment date with a request by the Company to provide any
certification, identification or other reporting requirement, whether imposed by
statute, treaty, regulation or administrative practice, if such action would
otherwise eliminate the requirement for the withholding or deduction of Taxes;
or
(4) if the beneficial owner of, or person ultimately entitled
to obtain an interest in, such Securities had been the Holder of the Securities
and would not be entitled to the payment of Additional Amounts (excluding the
impact of book entry procedures by the Depository or Common Depository).
In addition, Additional Amounts will not be payable with
respect to any Tax which is payable and so paid otherwise than by withholding or
deduction from payments of, or in respect of principal of, or any interest or
Liquidated Dam ages on, the Securities. The Company will remit the full amount
of any withholdings or deductions for or on account of Taxes to the relevant
Taxing Authority in accor dance with applicable law. The Company will make
reasonable efforts to obtain certified copies of tax receipts evidencing the
payment of any Taxes so deducted or withheld from each Taxing Authority imposing
such Taxes. The Company will furnish to the Holders, within 60 days after the
date the payment of any Taxes so deducted or withheld are due pursuant to
applicable law, either certified copies of tax receipts evidencing such payment
by the Company or, if such receipts are not obtainable, other evidence of such
payments by the Company. At least 30 days prior to each date on which any
payment under or with respect to the Securities is due and
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payable, if the Company will be obligated to pay Additional Amounts with respect
to such payment, the Company will deliver to the respective Trustee an Officers'
Certificate stating (i) the fact that such Additional Amounts will be payable,
(ii) the amounts so payable and (iii) such other information necessary to enable
the Trustee to pay such Additional Amounts to the Holders of Securities on the
Interest Payment Date.
Wherever in this Indenture there is mentioned, in any context, the
payment of amounts based upon the principal amount of the Securities, or of
principal, premium, if any, interest or Liquidated Damages, if any, or of any
other amount payable under or with respect to any of the Securities, such
mention shall be deemed to include mention of the payment of Additional Amounts
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof.
SECTION 10.19 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law, which would prohibit or forgive the Company from paying all or any portion
of the principal of and/or interest, if any, on the Securities as contemplated
herein, wherever enacted, now or at any time hereafter in force, or which may
affect the covenants or the performance of this Indenture; and (to the extent
that it may lawfully do so) the Company hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not hinder, delay or
impede the execution of any power herein granted to the Trustee, but shall
suffer and permit the execution of every such power as though no such law had
been enacted.
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SECTION 10.20 Limitation on Lines of Business. Neither the
Company nor any of its Subsidiaries shall directly or indirectly engage to any
substantial extent in any line or lines of business activity other than that
which, in the reasonable good faith judgment of the Supervisory Board, is a
Related Business.
SECTION 10.21 Limitation on Status as an Investment Company.
The Company and its Subsidiaries shall not take any action or conduct their
business and operations in such a way as would cause them to be required to
register as an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or would otherwise cause them to become
subject to regulation under the Investment Company Act.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
(1) Optional Redemption of the Securities
The Securities will be redeemable at the option of the
Company, in whole or in part, at any time or from time to time on or after
August 1, 2004, upon not less than 30 nor more than 60 days' prior notice, at
the redemption prices (ex pressed as a percentage of principal amount) set forth
below, plus accrued and unpaid interest (and Liquidated Damages, if any,)
thereon, if any, to the date of redemption:
YEAR Dollar Denominated Euro Denominated
Security Redemption Security
Price Redemption Price
-------------------------- -------------------
2004 ................ 105.438% 105.458%
2005 ................ 103.625% 103.625%
2006 ................ 101.813% 101.813%
2007 and thereafter...... 100.000% 100.000%
The Company will publish a redemption notice in accordance
with the procedures described under Section 1.6.
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(2) Redemption Upon Equity Offering
Prior to August 1, 2002, upon an Equity Offering of Common
Stock for cash of the Company, up to 35% of the aggregate principal amount of
each of the Dollar Denominated Securities and the Euro Denominated Securities
(determined separately) may be redeemed at the Company's option within 90 days
of such Equity Offering, on not less than 30 days, but not more than 60 days',
notice to each Holder of the Securities to be redeemed, with cash in an amount
not in excess of the Net Cash Proceeds of such Equity Offering, at a redemption
price equal to 110.875% of the principal amount, in the case of the Dollar
Denominated Securities and 110.875% of the principal amount in the case of the
Euro Denominated Securities, in each case together with accrued and unpaid
interest and Liquidated Damages, if any, thereon to the Redemption Date;
provided, however, that immediately following such redemp tion not less than 65%
of the aggregate principal amount of the Dollar Denominated Securities and the
Euro Denominated Securities (determined separately) remain Outstanding and
provided, further, that such redemption shall occur within 90 days after the
date of the closing of such Equity Offering.
(3) Redemption For Changes In Withholding Taxes
The Company may, at its option, redeem all, but not less than
all, of the Securities then Outstanding, in each case at 100% of the principal
amount thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the Redemption Date, if a Tax Event has occurred and is continuing. Notice of
any such redemption must be given within not less than 30 days nor more than 60
days prior to the redemption date. No redemption pursuant to this paragraph (3)
may be made unless, prior to the publication of any notice of redemption as a
result of a Tax Event, the Company delivers to the Trustee (i) an Officer's
Certificate stating that a Tax Event has occurred (irrespective of whether the
amendment or change is then effective), describing the facts leading thereto and
stating that the Company cannot avoid the requirement to pay Additional Amounts
by taking reasonable measures available to it and (ii) an opinion of counsel
reasonably acceptable to the Trustee to the effect that the Company is or will
become obligated to pay Additional Amounts as a result of such change or
amendment.
(4) Mandatory Redemption
The Company is not required to make mandatory redemption pay
ments or sinking fund payments with respect to the Securities.
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SECTION 11.2 Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article Eleven.
SECTION 11.3 Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 11.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
of Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 11.4.
SECTION 11.4 Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption pro rata, by lot or by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount of Securities; provided, however, that no
such partial redemption shall reduce the portion of the principal amount of a
Security not redeemed to less than $1,000 or (U)1,000, as the case may be.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 11.5 Notice of Redemption. Notice of redemption shall
be given in the manner provided for in Section 1.6 not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
Each notice of redemption shall state:
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(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 11.7, if any,
(3) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amount) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that
on and after the Redemption Date, upon surrender of such Security, the Holder
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided in Section
11.7) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on and
after said date, and
(6) the place or places where such Securities are to be
presented and surrendered for payment of the Redemption Price and accrued
interest, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.6 Deposit of Redemption Price. Prior to any Redemp
tion Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Securities which are to be
redeemed on that date.
SECTION 11.7 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest and Liquidated Damages, if
any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall
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cease to bear interest. Upon surrender of any such Security for redemption in
accordance with said notice, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the interest rate
borne by the Securities.
SECTION 11.8 Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the Company maintained for such purpose pursuant to Section 10.2 (with, if the
Com pany or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Com pany shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal amount of the Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may, at its option by Board Resolution, at any time
prior to the Stated Maturity of the Securities, with respect to the Securities,
elect to have either Section 12.2 or Section 12.3 be applied to all Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Company's
exercise under Section 12.1 of the option applicable to this Section 12.2, the
Com pany shall be deemed to have been discharged from its obligations with
respect to all
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Outstanding Securities on the date the conditions set forth in Section 12.4 are
satisfied (hereinafter, "Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 12.5 and the
other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal of, premium, if
any, and interest (and Liquidated Damages, if any) on such Securities when such
payments are due and any rights of the Holders with respect to such amounts, (B)
the Company's obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2 and 10.3; (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article Twelve. Subject to compli ance
with this Article Twelve, the Company may exercise its option under this Section
12.2 notwithstanding the prior exercise of its option under Section 12.3 with
respect to the Securities.
SECTION 12.3 Covenant Defeasance. Upon the Company's exercise
under Section 12.1 of the option applicable to this Section 12.3, the Company
shall be released from its obligations under any covenant contained in Section
8.1 and in Sections 10.8 through 10.18 with respect to the Outstanding
Securities ("Covenant Defeasance") on and after the date the conditions set
forth below are satisfied, and the Securities shall thereafter be deemed not to
be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the conse quences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, Covenant Defeasance means
that, with respect to the Outstanding Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(3), 5.1(4) and 5.1(5), but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
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SECTION 12.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 12.2 or
Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another Trustee satisfying the requirements of
Section 6.8 who shall agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities: (A) U.S. legal tender (with
respect to the Dollar Denomi nated Securities), legal tender in the countries
constituting the European Monetary Union (with respect to the Euro Denominated
Securities), or (B) U.S. Government Obligations (with respect to the Dollar
Denominated Securities), EEA Government Obligations (with respect to Euro
Denominated Securities), or (C) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee (or other qualifying
Trustee) to pay and discharge, the principal of (and premium, if any) and
interest on the Outstanding Securities on the Stated Maturity (or Redemption
Date, if applicable) of such principal (and premium, if any) or installment of
interest; provided that the Holders of Securities must have a valid, perfected,
exclusive security interest in such trust.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of
Section 5.1 are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound.
(4) In the case of an election under Section 12.2, the Company
shall have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of
this Indenture, there has been a change in the applicable U.S.federal income tax
law, in either case to the
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effect that, and based thereon such opinion shall confirm that, the Holders of
the Outstanding Securities will not recognize income, gain or loss for U.S.
federal income tax purposes as a result of such Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Defeasance had not occurred.
(5) In the case of an election under Section 12.3, the Company
shall have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee to the effect that (i) the Holders of the Outstanding Securities
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of such Outstanding Securities over any
other of the Com pany's creditors or with the intent of defeating, hindering,
delaying or defrauding any other of the Company's creditors or others; and
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for
relating to either the Defeasance under Section 12.2 or the Covenant Defeasance
under Section 12.3 (as the case may be) have been complied with; and, in the
case of the opinion of counsel, that paragraphs (1) (with respect to the
validity and perfection of the security interest), (2), (3) and (5) of this
Section 12.4 have been complied with, and the Company shall have delivered to
the Trustee an Officers' Certificate, subject to such qualifications and
exceptions as the Trustee deems appropriate, to the effect that, assuming no
Holder of the Securities is an insider of the Company, the trust funds will not
be subject to the effect of any applicable Federal bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
SECTION 12.5 Deposited Money and U.S. Government Securities to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 10.3, all money and U.S. Government Obligations
and EEA Government Obligations (including the proceeds thereof) deposited with
the Trustee (or other qualifying Trustee, collectively for purposes of this
Section 12.5, the "Trustee") pursuant to Section 12.4 in respect of the
Outstanding Securities shall be held in trust and applied by the Trustee, in
accordance with the provisions of such
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Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Holders of such Securities of all sums due and to
become due thereon in respect of principal, premium, if any, and interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Company shall pay and indemnify the Trustee and (if
applicable) its officers, directors, employees and agents against any tax, fee
or other charge imposed on or assessed against the U.S. Government Securities
deposited pursuant to Section 12.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations or EEA
Government Obliga tions held by it as provided in Section 12.4 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certifica tion thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect an equivalent Defeasance or Cove nant Defeasance, as applicable, in
accordance with this Article Twelve.
SECTION 12.6 Reinstatement. If the Trustee or any Paying Agent
is unable to apply any money in accordance with Section 12.5 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 12.5; provided, however, that if the Company makes any
payment of principal of, pre mium, if any, or interest on any Security following
the reinstatement of its obliga tions, the Company shall be subrogated to the
rights of the Holders of such Securities to receive such payment from the money
held by the Trustee or Paying Agent.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed all as of the day and year first above
written.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/
Name:
Title:
Citibank, N.A. (London Branch), Trustee
By: /s/
Name:
Title:
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EXHIBIT A
[FORM OF DOLLAR DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURI TIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSI TARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSI TARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGIS TERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A
DEPOSITARY (AND ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRE SENTATIVE OF A DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, A NOMI NEE OF A DEPOSITARY,
HAS AN INTEREST HEREIN.
[If a Resricted Global Security, then insert:] THIS SECURITY
(OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHER WISE DISPOSED OF IN
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDE CESSOR OF THIS SECURITY) OR THE LAST
DAY ON WHICH THE COM PANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EF FECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMA TION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
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RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION", "UNITED STATES" AND "U.S. PERSON"
HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY REGULATION S.
[If a Regulation S Security, then insert: THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE
SECURITIES). NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED EXCEPT (A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 OF REGULATION S OR (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURI TIES LAWS OF THE STATES
OF THE UNITED STATES. BY ITS ACCEP TANCE HEREOF, THE HOLDER AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUB STANTIALLY
TO THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART
OF ITS INITIAL DISTRIBUTION, OTHER THAN TO INDI VIDUALS OR LEGAL ENTITIES,
SITUATED IN OR OUTSIDE THE NETHER LANDS, WHO OR WHICH TRADE OR INVEST IN
SECURITIES IN THE CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS,
BROKERS, DEALERS, INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL
INVESTORS AND OTHER PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL
ENTERPRISE AND FINANCE COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN
SECURITIES.
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United Pan-Europe Communications N.V.
$800,000,000 107/8% Senior Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] $[ ]
United Pan-Europe Communications N.V., a company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of [ ] DOLLARS
or such amount as may be increased or decreased in accordance with the terms of
the Indenture and as set forth on the Schedule of Interest but not to exceed
$800,000,000 on August 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________
Authorized Signatory
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the
within-mentioned Indenture.
CITIBANK, N.A.
as Trustee
By:
Authorized Signatory
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<PAGE>
[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000
107/8% SENIOR NOTE DUE 2009
1. Interest. United Pan-Europe Communications N.V., a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), promises to pay, until the principal hereof is paid
or made avail able for payment, interest on the principal amount set forth on
the face hereof at a rate of 107/8% per annum. Interest hereon will accrue from
and including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 30, 1999 to but excluding the
date on which interest is paid. Interest shall be payable in arrears
semi-annually on each February 1 and August 1, com mencing on February 1, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at the rate borne by the
Securities.
2. Method of Payment. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on January 15 or July 15 next preceding the Interest Payment
Date (whether or not a Business Day). Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private Indebtedness. Interest may be
paid by check mailed to the Holder entitled thereto at the address indicated on
the register maintained by the Registrar for the Securities.
3. Paying Agent and Registrar. Initially, Citibank, N.A.
(London Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as
Paying Agent and Registrar and Banque Internationale a Luxembourg will act as
Paying Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
4. Indenture. The Company issued $800,000,000 107/8% Senior
Notes due 2009 (the "Securities") under an Indenture dated as of [ ] (the
"Indenture")
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<PAGE>
between the Company and the Trustee. This is one of an issue of Securities of
the Company issued, or to be issued, under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by refer ence to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa-77bbbb), as amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. Capitalized and certain other terms used herein and not
otherwise defined have the meanings set forth in the Indenture. To the extent of
any conflict between the terms of the Securities and the Indenture, the
applicable terms of the Indenture shall govern.
5. Additional Amounts. The Company will pay to the Holders of
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
6. Optional Redemption of the Securities. The Securities will
be redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after August 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of principal amount) if redeemed during the
12- month period commenc ing on August 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
Dollar Denominated
Security
Redemption
YEAR Price
--------------------------- -
2004 ........................... 105.438%
2005 ........................... 103.625%
2006 ........................... 101.813%
2007 and thereafter................. 100.000%
7. Redemption Upon Equity Offering. Prior to August 1, 2002,
upon an Equity Offering of Common Stock for cash of the Company, up to 35% of
the aggregate principal amount of each of the Dollar Denominated Securities and
Euro Denominated Securities (determined separately) may be redeemed at the
Company's option within 90 days of such Equity Offering, on not less than 30
days', but not more than 60 days', notice to each Holder of the Securities to be
redeemed, with cash in an amount not in excess of the Net Cash Proceeds of such
Equity Offering, at a Redemption Price equal to 110.875% of the principal amount
of the Securities
A-7
<PAGE>
redeemed, together with accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that immediately
following such redemption not less than 65% of the aggregate principal amount of
the Dollar Denominated Securities and the Euro Denominated Securities
(determined sepa rately) remain Outstanding and provided, further, that such
redemption shall occur within 90 days after the date of the closing of such
Equity Securities.
8. Redemption for Changes in Withholding Taxes. The Company
may, at its option, redeem all, but not less than all, of the Securities then
Outstand ing, in each case at 100% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the Redemption
Date, if a Tax Event has occurred and is continuing.
9. Mandatory Redemption. The Company is not required to make
mandatory redemption payments or sinking fund payments with respect to the
Securities.
10. Notice of Redemption. Notice of redemption will be mailed
within not less than 30 days nor more than 60 days prior to the Redemption Date
to each Holder of Securities to be redeemed at his registered address. On and
after the Redemption Date, unless the Company defaults in making the redemption
payment, interest ceases to accrue on Securities or portions thereof called for
redemption.
11. Purchase of Securities upon Change of Control. The
Indenture provides that upon the occurrence of a Change of Control and subject
to further limitations contained therein, the Company shall make an offer to
purchase Out standing Securities in accordance with the procedures set forth in
the Indenture.
12. Registration Rights. Pursuant to a Registration Rights
Agreement, dated July 30, 1999, among the Company and the Initial Purchasers
named therein, the Company will be obligated to consummate an Exchange Offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for notes of a separate series issued under the Indenture which
have been registered under the Securities Act, in like principal amount and
having substantially identical terms as the Securities. The Holders shall be
entitled to receive certain payments in the event such Exchange Offer is not
consummated ("Liquidated Damages") and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
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<PAGE>
13. Denominations, Transfer, Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. Under certain
circumstances set forth in the Indenture, the Registrar need not register the
transfer of or exchange any Securities.
14. Persons Deemed Owners. The registered Holder of this
Security may be treated as the owner of this Security for all purposes.
15. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, all
liability of the Trustee and any such Paying Agent with respect to such money
shall cease.
16. Amendment, Supplement, Waiver, Etc. The Company and the
Trustee may, without the consent of the Holders of any Outstanding Securities,
amend, waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsisten cies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities and with other holders of notes of other series issued
under the Indenture, subject to certain exceptions requiring the consent of the
Holders of the particular Securities to be affected.
17. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make Restricted Payments, make certain
Investments, create or incur Liens, enter into transactions with Affiliates,
enter into agreements restrict ing the ability of Subsidiaries to pay dividends
and make distributions and on the ability of the Company to merge or consolidate
with any other person or transfer all or substantially all of the Company's
assets. Such limitations are subject to a number of important qualifications and
exceptions. Pursuant to the Indenture, the Company must annually report to the
Trustee on compliance with such limitations.
18. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default
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<PAGE>
(other than certain events of bankruptcy, insolvency or reorganization affecting
the Company) occurs and is continuing, the Trustee or the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities under the
Indenture may, by written notice to the Trustee and the Company, and the Trustee
upon the request of the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall, declare all principal of and accrued
interest on all Securities to be immediately due and payable and such amounts
shall become immediately due and payable.
19. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
20. No Recourse Against Others. No board member, director,
officer, employee, agent, authorized representative, incorporator or shareholder
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for a claim based on, in respect of, or by
reason of, such obligations or their creation by reason of his, her or its
status as such. Each Holder of Securities by accepting a Security waivers and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
21. Discharge. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
provisions thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of U.S.
Dollars or U.S. Government Securi ties denominated in U.S. Dollars sufficient to
pay when due principal of and interest on the Securities to maturity or
redemption.
22. Authentication. This Security shall not be valid until
the Trustee signs the certificate of authentication on the other side of this
Security.
23. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT
LIMITATION SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCA BLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT
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<PAGE>
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCA BLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Securities.
24. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
25. Currency of Account. U.S. Dollars are the sole currency
of account and payment for all sums payable by the Company under the Securities.
26. CUSIP, ISIN and Common Code Numbers. The Company has
caused CUSIP, ISIN and Common Code numbers, as applicable, to be printed on the
Securities and the Trustee may use CUSIP, ISIN or Common Code numbers, as
applicable, in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed hereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
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<PAGE>
Fred.Roeskestraat 123
1076 EE Amsterdam
The Netherlands
Attn: Treasurer
A-12
<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
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|_| (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferee certificate
substantially in the form attached hereto, are being furnished which
comply with the conditions of transfer set forth in this Security and
the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b)
above, if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the
other side of this Security)
By:
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
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<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an execu-
tive officer
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<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------ ------------ ---------- ------------- --------
Initial bal- $ [ ]
ance as of
07/30/99
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<PAGE>
EXHIBIT B
[FORM OF EURO DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A
DEPOSITARY (AND ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
INASMUCH AS THE REGISTERED OWNER HEREOF, A NOMINEE OF A DEPOSI TARY, HAS AN
INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY
(OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS.
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN
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<PAGE>
THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR
NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATE MENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR
ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO
WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTAN TIALLY TO THE EFFECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
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<PAGE>
[If a Regulation S Security, then insert: THIS SECURITY HAS
NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION
COMPLIANCE PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE
SECURITIES). NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED EXCEPT (A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR
RULE 904 OF REGULATION S OR (2) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES
IS A QUALI FIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART
OF ITS INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDU ALS OR LEGAL ENTITIES,
SITUATED IN OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN
SECURITIES IN THE CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS,
BROKERS, DEALERS, INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITU TIONAL
INVESTORS AND OTHER PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL
ENTERPRISE AND FINANCE COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN
SECURITIES.
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<PAGE>
United Pan-Europe Communications N.V.
$800,000,000 107/8% Senior Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] $[ ]
United Pan-Europe Communications N.V., a company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of FIFTEEN
MILLION ONE HUNDRED EIGHTY-FIVE THOUSAND DOLLARS or such amount as may be
increased or decreased in accordance with the terms of the Indenture and as set
forth on the Schedule of Interest but not to exceed $800,000,000 on August 1,
2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________
Authorized Signatory
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the
within-mentioned Indenture.
CITIBANK, N.A.
Not in its individual capacity, but solely as Trustee
By:
Authorized Signatory
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<PAGE>
REVERSE OF NOTE
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$800,000,000
107/8% SENIOR NOTE DUE 2009
1. Interest. United Pan-Europe Communications N.V., a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), promises to pay, until the principal hereof is paid
or made available for payment, interest on the principal amount set forth on the
face hereof at a rate of 107/8% per annum. Interest hereon will accrue from and
including the most recent date to which interest has been paid or, if no
interest has been paid, from and including July 30, 1999 to but excluding the
date on which interest is paid. Interest shall be payable in arrears
semi-annually on each February 1 and August 1, commencing on February 1, 2000.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months. The Company shall pay interest on overdue principal and on overdue
interest (to the full extent permitted by law) at the rate borne by the
Securities.
2. Method of Payment. The Company will pay interest hereon
(except defaulted interest) to the Persons who are registered Holders at the
close of business on January 15 or July 15 next preceding the Interest Payment
Date (whether or not a Business Day). Holders must surrender Securities to a
Paying Agent to collect principal payments. The Company will pay principal and
interest in money of the United States of America that at the time of payment is
legal tender for payment of public and private Indebtedness. Interest may be
paid by check mailed to the Holder entitled thereto at the address indicated on
the register maintained by the Registrar for the Securities.
3. Paying Agent and Registrar. Initially, Citibank, N.A.
(London Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as
Paying Agent and Registrar and Banque Internationale a Luxembourg will act as
Paying Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
4. Indenture. The Company issued $800,000,000 107/8% Senior
Notes due 2009 (the "Securities") under an Indenture dated as of July 30, 1999
(the "Indenture") between the Company and the Trustee. This is one of an issue
of Securities of the Company issued, or to be issued, under the Indenture. The
terms of the Securities
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<PAGE>
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss. 77aaa-77bbbb),
as amended from time to time. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of them.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. To the extent of any conflict between
the terms of the Securities and the Indenture, the applicable terms of the
Indenture shall govern.
5. Additional Amounts. The Company will pay to the Holders of
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
6. Optional Redemption of the Securities. The Securities will
be redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after August 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of principal amount) if redeemed during the
12- month period commencing on August 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
Dollar Denominated
Security
Redemption
YEAR Price
--------------------------- -
2004 ........................... 105.438%
2005 ........................... 103.625%
2006 ........................... 101.813%
2007 and thereafter................. 100.000%
7. Redemption Upon Equity Offering. Prior to August 1, 2002,
upon an Equity Offering of Common Stock for cash of the Company, up to 35% of
the aggregate principal amount of each of the Dollar Denominated Securities and
Euro Denominated Securities (determined separately) may be redeemed at the
Company's option within 90 days of such Equity Offering, on not less than 30
days', but not more than 60 days', notice to each Holder of the Securities to be
redeemed, with cash in an amount not in excess of the Net Cash Proceeds of such
Equity Offering, at a Redemption Price equal to 110.875% of the principal amount
of the Securities redeemed, together with accrued and unpaid interest and
Liquidated Damages, if any, thereon to the Redemption Date; provided, however,
that immediately following such redemption not less than 65% of
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<PAGE>
the aggregate principal amount of the Dollar Denominated Securities and the Euro
Denominated Securities (determined separately) remain Outstanding and provided,
further, that such redemption shall occur within 90 days after the date of the
closing of such Equity Securities.
8. Redemption for Changes in Withholding Taxes. The Company
may, at its option, redeem all, but not less than all, of the Securities then
Outstanding, in each case at 100% of the principal amount thereof, plus accrued
and unpaid interest and Liquidated Damages, if any, thereon to the Redemption
Date, if a Tax Event has occurred and is continuing.
9. Mandatory Redemption. The Company is not required to make
mandatory redemption payments or sinking fund payments with respect to the
Securities.
10. Notice of Redemption. Notice of redemption will be mailed
within not less than 30 days nor more than 60 days prior to the Redemption Date
to each Holder of Securities to be redeemed at his registered address. On and
after the Redemption Date, unless the Company defaults in making the redemption
payment, interest ceases to accrue on Securities or portions thereof called for
redemption.
11. Purchase of Securities upon Change of Control. The
Indenture provides that upon the occurrence of a Change of Control and subject
to further limitations contained therein, the Company shall make an offer to
purchase Outstanding Securities in accordance with the procedures set forth in
the Indenture.
12. Registration Rights. Pursuant to a Registration Rights
Agreement, dated July 30, 1999, among the Company and the Initial Purchasers
named therein, the Company will be obligated to consummate an Exchange Offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for notes of a separate series issued under the Indenture which
have been registered under the Securities Act, in like principal amount and
having substantially identical terms as the Securities. The Holders shall be
entitled to receive certain payments in the event such Exchange Offer is not
consummated ("Liquidated Damages") and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
13. Denominations, Transfer, Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The
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<PAGE>
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay to it any taxes and fees required
by law or permitted by the Indenture. Under certain circumstances set forth in
the Indenture, the Registrar need not register the transfer of or exchange any
Securities.
14. Persons Deemed Owners. The registered Holder of this
Security may be treated as the owner of this Security for all purposes.
15. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, all
liability of the Trustee and any such Paying Agent with respect to such money
shall cease.
16. Amendment, Supplement, Waiver, Etc. The Company and the
Trustee may, without the consent of the Holders of any Outstanding Securities,
amend, waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Outstanding Securities and with other holders of notes of other series issued
under the Indenture, subject to certain exceptions requiring the consent of the
Holders of the particular Securities to be affected.
17. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make Restricted Payments, make certain
Investments, create or incur Liens, enter into transactions with Affiliates,
enter into agreements restricting the ability of Subsidiaries to pay dividends
and make distributions and on the ability of the Company to merge or consolidate
with any other person or transfer all or substantially all of the Company's
assets. Such limitations are subject to a number of important qualifications and
exceptions. Pursuant to the Indenture, the Company must annually report to the
Trustee on compliance with such limitations.
18. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Company) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount of the Outstanding Securities
under the Indenture may, by written notice to the Trustee and the Company, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities shall,
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<PAGE>
declare all principal of and accrued interest on all Securities to be
immediately due and payable and such amounts shall become immediately due and
payable.
19. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
20. No Recourse Against Others. No board member, director,
officer, employee, agent, authorized representative, incorporator or shareholder
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for a claim based on, in respect of, or by
reason of, such obligations or their creation by reason of his, her or its
status as such. Each Holder of Securities by accepting a Security waivers and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
21. Discharge. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
provisions thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of U.S.
Dollars or U.S. Government Securities denominated in U.S. Dollars sufficient to
pay when due principal of and interest on the Securities to maturity or
redemption.
22. Authentication. This Security shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Security.
23. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT
LIMITATION SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
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<PAGE>
COURTS. THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH
THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BOUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION. The Trustee, the Company and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Securities.
24. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
25. Currency of Account. U.S. Dollars are the sole currency of
account and payment for all sums payable by the Company under the Securities.
26. CUSIP, ISIN and Common Code Numbers. The Company has
caused CUSIP, ISIN or Common Code numbers, as applicable, to be printed on the
Securities and the Trustee may use CUSIP, ISIN or Common Code numbers, as
applicable, in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed hereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
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<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
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<PAGE>
|_| (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferee certificate
substantially in the form attached hereto, are being furnished which
comply with the conditions of transfer set forth in this Security and
the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b)
above, if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the other
side of this Security)
By:
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable
to the Trustee)
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<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an execu-
tive officer
B-15
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------- ------------- ------------- -------------- --------------
Initial bal- $ [ ]
ance as of
07/30/99
B-16
<PAGE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Sections 3.13(b)(ii) and 3.13(c)(ii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 107/8% Senior Notes due
2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, (the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(U)]______ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP][CINS][ISIN] No(s). ________________________________
CERTIFICATE No(s). _________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
<PAGE>
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
1. the Owner is not a distributor of the Specified Securities, an
Affiliate of the Company or any such distributor or a person
acting on behalf of any of the foregoing;
2. the offer of the Specified Securities was not made to a person in
the United States;
3 either:
(a) at the time the buy order was originated, the Transferee
was outside the United States or the Owner and any person acting on its behalf
reasonably believed that the Transferee was outside the United States; or
(b) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities market and
neither the Owner nor any person acting on its behalf knows that the
transactions have been prearranged with a buyer in the United States;
4. no directed selling efforts have been made in the United States
by or on behalf of the Owner or any Affiliate thereof;
5. if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted
Period, then the requirements of Rule 904(c)(1) have been
satisfied;
6. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
7. upon completion of the transaction, the beneficial interest being
transferred will be held through an Agent Member acting for and
on behalf of Euroclear or Cedelbank.
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(Transfers Pursuant to Sections 3.13(b)(iii) and 3.13(c)(iii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 107/8% Senior Notes due
2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, ( the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(U)]_____ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Regulation
D-1
<PAGE>
S Global Security. In connection with such transfer, the Owner hereby certifies
that such transfer is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Specified
Securities, an Affiliate of the Company or any such
distributor or a person acting on behalf of any of the
foregoing;
(B) the offer of the Specified Securities was not made
to a person in the United States;
(C) either:
(i) at the time the buy order was originated,
the Transferee was outside the United States or the
Owner and any person acting on its behalf reasonably
believed that the Trans feree was outside the United
States; or
(i) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Association of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transactions has been prear
ranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any Affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in
respect of the Specified Securities, and the transfer is to
occur during the Restricted Period, then the requirements of
Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
D-2
<PAGE>
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after [date one year after
the latest date of issuance of any of the Specified
Securities] and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of
Rule 144; or
(B) the transfer is occurring after [date two years
after the latest date of issuance of any of the Specified
Securities] and the Owner is not, and during the preceding
three months has not been, an Affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a Corporation, partnership or
fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
D-3
<PAGE>
EXHIBIT E
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers to QIBs Pursuant to Sections 3.13(b)(iv) and 3.13(c)(iv) of the
Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V 107/8% Senior Notes due
2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee, (the "Indenture"). Terms used
but not defined herein and defined in Regulation S under the U.S. Securities Act
of 1933 (the "Securities Act") or in the Indenture shall have the meanings given
to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][(U)]______ principal amount of
Securities, which are evidenced by the following certificate(s) (the "Specified
Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
E-1
<PAGE>
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Restricted Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(2) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a Corporation, partnership or
fiduciary, the title of the person signing on behalf
of the Undersigned must be stated.)
E-2
<PAGE>
EXHIBIT F
UNITED PAN-EUROPE
COMMUNICATIONS N.V.
OFFICERS' CERTIFICATE
[Name], [title(s)] of United Pan-Europe Communications N.V. a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), and [name], [title(s)] of the Company, hereby
certify pursuant to Sections ____ and ____ of the Indenture, dated as of
___________, ____ (the "Indenture"), between the Company and Citibank, N.A., as
trustee (the "Trustee"), that:
(i) he or she has read and understands the provisions of the Indenture
and the definitions relating thereto, (ii) the statements made in this Officers'
Certificate are based upon an examination of the provisions of the Indenture and
upon the relevant books and records of the Company, (iii) in his or her opinion,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not the covenants and
conditions of the Indenture relating to the [authentication of the Securities]
[execution of the Indenture] [OTHER] have been complied with and (iv) in his or
her opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, each of the undersigned has executed this
Certificate on this ____ day of ____________, ____.
By:
Name:
Titles:
By:
Name:
Titles:
F-1
<PAGE>
EXHIBIT G
[Date]
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Ladies and Gentlemen:
We have acted as special counsel to United Pan-Europe Communications
N.V., a company with limited liability organized and existing under the laws of
The Netherlands (the "Company"), in connection with the [initial issuance and
sale by the Company of $800,000,000 aggregate principal amount of the Company's
107/8% Senior Notes due 2009 and its (U)300,000,000 aggregate principal amount
of the Company's 107/8% Senior Notes due 2009 (collectively, the "Securities"),
which will be issued under an Indenture, dated as of July 30, 1999 (the
"Indenture"), between the Company and Citibank, N.A. as trustee (the
"Trustee")].
This opinion is being furnished to your pursuant to Sections ____ and
____ of the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submit ted to us as originals, the conformity to original documents of all
documents submit ted to us as certified or photostatic copies and the
authenticity of the originals of such letter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements or
representations of officers and other representatives of the Company and others.
G-1
<PAGE>
Pursuant to Sections ____ and ____ of the Indenture, we advise you that
in our opinion:
1. We have reviewed Article __ of the Indenture setting forth certain
provisions of general application, and in particular, the pertinent provisions
of Section ___ of the Indenture setting forth the definitions of certain terms,
and Sections ___ and ___ of the Indenture providing that the Trustee is entitled
to receive an Officers' Certificate and an Opinion of Counsel in connection with
any request by the Company to take any action and setting forth certain
requirements with respect to the forms of such documents. We have also reviewed
Article ___ of the Indenture, pertaining to ____.
2. In our opinion, we have made such examination or investigation
(including an examination of the Officers' Certificate of the Company, dated as
of the date hereof, as to the matters addressed in Sections ___ and ___ of the
Indenture) as we deem necessary to enable us to express an informed opinion as
to whether or not the conditions precedent to [the authentication of the
Securities] [the execution of the Indenture] [OTHER] under Section ___ of the
Indenture have been complied with.
3. In our opinion, the conditions precedent to be satisfied with
respect to the [authentication of the Securities] [execution of the Indenture]
[OTHER] under Section __ of the Indenture have been complied with.
Members of our firm are admitted to the bar in the States of ______ and
New York, and we do not express any opinion as to the laws of any jurisdiction
other than the laws of such States and the General Corporation Law of the State
of Delaware and the laws of the United States of America.
This opinion is furnished to you solely for your benefit in connection
with the [authentication of the Securities] [execution of the Indenture] [OTHER]
and is not to be relied upon by any other person without our express written
permission.
Very truly yours,
G-2
<PAGE>
EXHIBIT H
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
(Transfers Pursuant to Section 3.14(a) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V 107/8% Senior Notes
due 2009 (the "Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July
30, 1999 between the Company and Citibank, N.A. as trustee (the "Indenture").
Terms used but not defined herein have the meanings given to them in the
Indenture.
This certificate relates to [U.S. $] [(U)]____ principal
amount of Securities, which are evidenced by the following certificate(s) (the
"Securities"):
1. We understand that the Securities have not been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold except as permitted in the following sentence. We understand
and agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, (x) that such Securities are
being offered only in a transaction not involving any public offering
within two years after the date of the original issuance of the
Securities or if within three months after we cease to be an affiliate
(within the meaning of Rule 144 under the Securities Act) of the
Company, such Securities may be resold, pledged or transferred only
(i) to the Company, (ii) so long as the Securi ties are eligible for
resale pursuant to Rule 144A under the Securities Act ("Rule 144A"),
to a person whom we reasonably believe is a "qualified institution
buyer" (as defined in Rule 144A) ("QIB") that purchases for its own
account or for the account of a QIB to whom notice is given that the
resale, pledge or transfer is being made in
H-1
<PAGE>
reliance on Rule 144A (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of the
certificate for the Securities), (iii) in an offshore transaction in
accordance with Regulation S under the Securities Act (as indicated by
the box checked by the transferor on the Certificate of Transfer on
the reverse of the Note if the Note is not in book-entry form), and,
if such transfer is being effected by certain transferors prior to the
expiration of the "40-day distribu tion compliance period" (within the
meaning of Rule 903(b)(2) of Regulation S under the Securities Act), a
certificate that may be obtained from the Trustee is delivered by the
transferee, (iv) to an institution that is an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the Securities Act
(as indicated by the box checked by the transferor on the Certificate
of Transfer on the reverse of the certificate for the Securities)
which has certified to the Company and the Trustee for the Securities
that it is such an accredited investor and is acquiring the Securities
for investment purposes and not for distribution (provided that no
Securities purchased from a foreign purchaser or from any person other
than a QIB or an institutional accredited investor pursuant to this
clause (iii) shall be permitted to transfer any Securities so
purchased to an institutional accredited investor pursuant to this
clause (iv) prior to the expiration of the "applicable restricted
period" (within the meaning of Regulation S under the Securities Act),
(v) pursuant to an exemption from registration under the Securities
Act provided by Rule 144 (if applicable) under the Securities Act, or
(vi) pursuant to an effective registration statement under the
Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States, and we will notify
any purchaser of the Securities from us of the above resale
restriction, if then applicable. We further understand that in
connection with any transfer of the Securities by us that the Company
and the Trustee for the Securities may request, and if so requested we
will furnish, such certificates, legal opinions and other information
as they may reasonably require to confirm that any such transfer
complies with the foregoing restrictions.
2. We are able to fend for ourselves in the transactions contem plated by
this Offering Circular, we have such knowledge and experience in
financial and business matters as to be capable of evaluating the
merits and risks of our investment in the Securities, and we and any
accounts for which we are acting are each able to bear the economic
risk of our or its investment and can afford the complete loss of such
investment.
3. We understand that the Company, Goldman Sachs Interna tional,
Donaldson, Lufkin & Jenrette Securities International, Morgan Stanley
& Co. International Limited, TD Securities (USA) Inc., Bank of America
International Limited, Chase Manhattan International Limited, CIBC
World Markets Corp., Credit
H-2
<PAGE>
Suisse First Boston (Europe) Limited, Merrill Lynch International and
Salomon Brothers International Limited as the initial purchasers of
the Securities ("Initial Purchasers"), and others will rely upon the
truth and accuracy of the foregoing acknowledgments, representations
and agreements and we agree that if any of the acknowledgments,
representations and warranties deemed to have been made by us by our
purchase of Securities, for our own account or of one or more accounts
as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company and the Initial
Purchasers.
4. We are acquiring the Securities purchased by us for invest ment
purposes and not for distribution of our own account or for one or
more accounts as to each of which we exercise sole investment
discretion and we are or such account is an institutional "accredited
investor" (as defined in rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act).
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry
with respect to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
Date:
H-3
<PAGE>
EXHIBIT I
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 of the Indenture, check the box:
|_| Section 10.10
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, state the amount:
[$ (multiple of $1000)]
[(U) (multiple of (U) 1000)]
Dated: Your Signature:
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor
program acceptable to the Trustee)
I-1
<PAGE>
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Issuer
CITIBANK, N.A. (London Branch)
Trustee
--------------------
Indenture
Dated as of July 30, 1999
---------------------
$735,000,000 12 1/2 % Senior Discount Notes Due 2009
1
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. ..........................................1
SECTION 1.2 Compliance Certificates and Opinions...................40
SECTION 1.3 Form of Documents Delivered to Trustee. ..............40
SECTION 1.4 Acts of Holders........................................41
SECTION 1.5 Notices. ..............................................43
SECTION 1.6 Notice to Holders; Waiver. ...........................44
SECTION 1.7 Effect of Headings and Table of Contents. ............45
SECTION 1.8 Successors and Assigns. ..............................45
SECTION 1.9 Separability Clause. .................................45
SECTION 1.10 Benefits of Indenture. ................................45
SECTION 1.11 Governing Law. .......................................45
SECTION 1.12 Conflict with Trust Indenture Act. ...................46
SECTION 1.13 Legal Holidays. ......................................46
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders.............................47
SECTION 1.15 Independence of Covenants. ...........................47
SECTION 1.16 Exhibits. ............................................47
SECTION 1.17 Counterparts...........................................47
SECTION 1.18 Duplicate Originals....................................47
SECTION 1.19 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities...................................47
SECTION 1.20 Judgment Currency......................................48
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. .....................................49
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms........................................50
SECTION 3.2 Denominations. ........................................50
SECTION 3.3 Execution, Authentication, Delivery and Dating. ......51
SECTION 3.4 Temporary Securities. ................................54
i
<PAGE>
SECTION 3.5 Registration, Registration of Transfer and Ex
change.................................................55
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.......56
SECTION 3.7 Payment of Interest; Interest Rights Preserved.........57
SECTION 3.8 Persons Deemed Owners..................................58
SECTION 3.9 Cancellation...........................................59
SECTION 3.10 Computation of Interest................................59
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers..........................59
SECTION 3.12 Book-Entry Provisions for Global Securities, Cer
tificated Securities...................................59
SECTION 3.13 Transfer and Exchange of Securities....................60
SECTION 3.14 Special Transfer Provisions............................67
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture................68
SECTION 4.2 Application of Trust Money.............................70
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default......................................70
SECTION 5.2 Acceleration of Maturity; Rescission and Annul
ment...................................................72
SECTION 5.3 Collection of Indebtedness and Suits for Enforce
ment by Trustee........................................73
SECTION 5.4 Trustee May File Proofs of Claim.......................74
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities..........................................75
SECTION 5.6 Application of Money Collected.........................75
SECTION 5.7 Limitation on Suits....................................75
SECTION 5.8 Unconditional Right of Holders to Receive Princi
pal, Premium and Interest..............................76
SECTION 5.9 Restoration of Rights and Remedies.....................76
SECTION 5.10 Rights and Remedies Cumulative.........................77
SECTION 5.11 Delay or Omission Not Waiver...........................77
SECTION 5.12 Control by Holders.....................................77
SECTION 5.13 Waiver of Past Defaults................................78
SECTION 5.14 Waiver of Stay or Extension Laws.......................78
ARTICLE VI
THE TRUSTEE
ii
<PAGE>
SECTION 6.1 Certain Duties and Responsibilities....................79
SECTION 6.2 Notice of Default......................................80
SECTION 6.3 Certain Rights of Trustee..............................80
SECTION 6.4 Trustee Not Responsible for Issuance of Securities....82
SECTION 6.5 May Hold Securities....................................82
SECTION 6.6 Money Held in Trust....................................82
SECTION 6.7 Compensation and Reimbursement.........................82
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflict
ing Interests..........................................83
SECTION 6.9 Resignation and Removal; Appointment of Succes
sor....................................................84
SECTION 6.10 Acceptance of Appointment by Successor.................86
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business............................................86
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders...........87
SECTION 7.2 Reports by Trustee.....................................87
SECTION 7.3 Reports by Company.....................................88
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms..................................................88
SECTION 8.2 Successor Substituted..................................89
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders..................89
SECTION 9.2 Indentures with Consent of Holders.....................90
SECTION 9.3 Execution of Indenture.................................91
SECTION 9.4 Effect of Indentures...................................92
SECTION 9.5 Conformity with Trust Indenture Act....................92
SECTION 9.6 Reference in Securities to Indentures..................92
SECTION 9.7 Notice of Indentures...................................92
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and Inter
est....................................................93
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SECTION 10.2 Maintenance of Office or Agency........................93
SECTION 10.3 Money for Security Payments to Be Held in Trust........94
SECTION 10.4 Corporate Existence....................................96
SECTION 10.5 Payment of Taxes and Other Claims......................96
SECTION 10.6 Maintenance of Properties..............................96
SECTION 10.7 Insurance..............................................97
SECTION 10.8 Provision of Financial Statements......................97
SECTION 10.9 Statement by Officers as to Default....................98
SECTION 10.10 Purchase of Securities upon Change of Control..........98
SECTION 10.11 Limitation on Incurrence of Additional Indebted
ness and Disqualified Capital Stock...................102
SECTION 10.12 Limitation on Restricted Payments.....................105
SECTION 10.13 Limitation on Dividend and Other Payment Re
strictions Affecting Subsidiaries.....................107
SECTION 10.14 Limitation on Liens Securing Indebtedness.............109
SECTION 10.15 Limitation on Issuances of Guarantees by Subsid
iaries................................................109
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock.....110
SECTION 10.17 Limitation on Transactions with Affiliates............115
SECTION 10.18 Additional Amounts....................................115
SECTION 10.19 Waiver of Stay, Extension or Usury Laws...............118
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption...................................119
SECTION 11.2 Applicability of Article..............................121
SECTION 11.3 Election to Redeem; Notice to Trustee.................121
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.....121
SECTION 11.5 Notice of Redemption..................................121
SECTION 11.6 Deposit of Redemption Price...........................122
SECTION 11.7 Securities Payable on Redemption Date.................122
SECTION 11.8 Securities Redeemed in Part...........................123
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Cove
nant Defeasance.......................................123
SECTION 12.2 Defeasance and Discharge..............................123
SECTION 12.3 Covenant Defeasance...................................124
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance.......125
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SECTION 12.5 Deposited Money and U.S. Government Securities
to Be Held in Trust; Other Miscellaneous Provi
sions.................................................126
SECTION 12.6 Reinstatement.........................................127
EXHIBIT A.................................................................A-1
EXHIBIT B.................................................................B-1
EXHIBIT C.................................................................C-1
EXHIBIT D.................................................................D-1
EXHIBIT E.................................................................E-1
EXHIBIT F.................................................................F-1
EXHIBIT G.................................................................G-1
EXHIBIT H.................................................................H-1
v
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INDENTURE, dated as of July 30, 1999 by and between United
Pan- Europe Communications N.V., a public limited liability company organized
and existing under the laws of The Netherlands (herein called the "Company"),
having its principal office at Fred. Roeskestraat 123, 1076 EE Amsterdam, The
Netherlands, and Citibank, N.A. (London Branch), as Trustee (herein called the
"Trustee"). Each party agreed as follows for the benefit of the other party and
for the equal and rateable benefit of the Holders (as defined below) of the
Company's 12 1/2% Senior Discount Notes due 2009 denominated in U.S. Dollars:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-liquidating
paper", as used in TIA Section 311, shall have the meanings assigned to them in
the rules of the SEC adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with "GAAP" as defined in this section
1.1;
(d) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section, paragraph or other subdivision; and
(e) unless otherwise indicated, references to Articles,
Sections, paragraphs or other subdivisions are references to such Articles,
Sections, paragraphs or other subdivisions of this Indenture.
"Acceleration Notice" has the meaning set forth in Section
5.2.
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"Accreted Value"means, as of any date of determination, (i)
prior to August 1, 2004, the sum (rounded to the nearest whole dollar) of (a)
the initial offering price ($545.21 per $1,000 in principal amount at maturity
of Senior Dis count Notes) of the Senior Discount Notes and (b) the portion of
the excess of the principal amount of Senior Discount Notes over such initial
offering price which shall have been accreted thereon through such date, such
amount to be so accreted on a daily basis at the rate of 12 1/2% per annum
compounded semi-annually on each February 1 and August 1 from the date of
issuance of the Senior Discount Notes through the date of determination, and
(ii) on and after August 1, 2004, the principal amount at maturity of Senior
Discount Notes.
"Acquired Indebtedness" means Indebtedness (including
Disqualified Capital Stock) of any Person existing at the time such Person
becomes a Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any
Person or all or substantially all the assets of any Person by any other Person,
whether by purchase, merger, consolidation, or other transfer, and whether or
not for consider ation.
"Act", when used with respect to any Holder, has the meaning
specified in Section 1.4.
"Additional Amounts" has the meaning specified in Section
10.18.
"Affiliate" means any Person directly or indirectly
controlling or controlled by or under direct or indirect common control with the
Company. For purposes of this definition, the term "control" means the power to
direct the manage ment and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to vote in the election of directors, managers or
trustees, as applicable, shall for such purposes be deemed to constitute
control.
"Agent Member" means, with respect to any Depositary, any
member of, or participant in, such Depositary.
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"Applicable Procedures" has the meaning set forth in Section
3.13(b)(ii).
"Annualized Consolidated EBITDA" means Consolidated EBITDA for
the Reference Period multiplied by four.
"Asset Acquisition" means (i) an Investment or capital
contribution (by means of transfers of cash or other property to others or
payments for property or services of the account or use of others, or otherwise)
by the Company or any Subsidiary in any other Person, or any acquisition or
purchase of Capital Stock of another Person by the Company or any Subsidiary, or
(ii) an acquisition by the Company or any Subsidiary of the property and assets
(other than Capital Stock) of any Person other than the Company or any
Subsidiary which constitute substantially all of a division, operating unit or
line of business of such Person or which is otherwise outside the ordinary
course of business.
"Asset Sale" has the meaning set forth in Section 10.16.
"Average Life" means, as of the date of determination, with
respect to any security or instrument, the quotient obtained by dividing (1) the
sum of the products (a) of the number of years from the date of determination to
the date or dates of each successive scheduled principal (or redemption) payment
of such security or instrument and (b) the amount of each such respective
principal (or redemption) payment by (2) the sum of all such principal (or
redemption) payments.
"Beneficial Owner" or "beneficial owner" for purposes of the
defini tion of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
"Board Resolution" means a copy of a resolution certified by a
managing director or other authorized officer, assistant officer or
representative of the Company to have been duly adopted by the Supervisory Board
of the Company and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in New York, New
York
3
<PAGE>
and Amsterdam, The Netherlands are authorized or obligated by law or executive
order to close.
"Capital Contribution" means any contribution to the equity of
the Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of Qualified Capital Stock is paid.
"Capitalized Lease Obligation" means, as to any Person, the
obliga tions of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Corporation, any
and all shares, interests, rights to purchase (other than convertible or
exchangeable Indebted ness that is not itself otherwise capital stock),
warrants, options, participations or other equivalents of or interests (however
designated) in stock issued by that Corpo ration.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by
(i) the United States of America or any agency or instrumentality
thereof or (ii) any member of the European Economic Area or
Switzerland, or any, agency or instrumentality thereof provided that
such country, agency or instrumentality has a credit rating at least
equal to that of the United States of America (provided that, in each
case, the full faith and credit of such respective nation is pledged in
support thereof), or
(2) time deposits and certificates of deposit and commercial paper
issued by the parent Corporation of any domestic (United States)
commercial bank of recognized standing having capital and surplus in
excess of $500,000,000 (or the foreign currency equivalent thereof), or
(3) commercial paper issued by others rated at least A-2 or the
equivalent thereof by Standard & Poor's Corporation or at least P-2 or
the equivalent thereof by Moody's Investors Service, Inc.
and in the case of each of (1), (2), and (3) maturing within one year after the
date of acquisition, or
4
<PAGE>
(4) Euro or Dollar time deposits with maturities of six months or less
from the date of acquisition, bankers' acceptances with maturities not
exceed ing six months, and overnight bank deposits, in each case with
any domestic (United States) commercial bank (including the Trustee)
having capital and surplus in excess of $500,000,000 (or the foreign
currency equivalent thereof) and a Keefe Bank Watch Rating of "B" or
better; provided, in the case of (1) through (4), that with respect to
any non-domestic Person, Cash Equivalents shall also mean those
investments that are comparable to clauses (ii) and (iv) above in such
Person's country of organization or country where it conducts business
operations.
"Cedelbank" means Cedelbank.
"Certificated Security" means any certificated Security in
fully registered definitive form.
"Change of Control" means any merger or consolidation of the
Company with or into any Person or any sale, transfer or other conveyance,
whether direct or indirect, of all or substantially all of the Company's assets,
on a Consoli dated basis, in one transaction or a series of related
transactions, if, immediately after giving effect to such transaction(s), either
(A) any "person" or "group" (other than the Parent or any of the
Principals) is or becomes the "beneficial owner", directly or
indirectly, of more than 35% of the total voting power of all classes
of the Company's securities in the aggregate normally entitled to vote
in the election of directors, managers, or trustees, as applicable, of
the transferee(s) or surviving entity or entities and such "person" or
"group" beneficially owns (after giving effect to such transaction) a
greater percent age of the total voting power than is at that time
beneficially owned by Parent and the Principals (in the aggregate) and
none of the Parent nor any of the Principals has the right or ability
by voting power, contract or otherwise to elect or nominate for
elections a majority of the Company's Supervisory Board, or
(B the Continuing Directors cease for any reason to constitute a majority
of the Supervisory Board of the Company then in office, or
(C) the Company adopts a plan of liquidation (other than a plan of
liquidation as a consequence of which (1) the Parent and the
Principals (in the aggregate) beneficially own at least the same
percentage of voting power after the consummation of such plan as
before or otherwise retain the right or ability, by
5
<PAGE>
voting power, to control the Person that acquires the proceeds of such
liquidation and (2) the Person that acquires the substantial majority
of the proceeds of such liquida tion shall have assumed by
supplemental indenture the Company's obligations pursuant to this
Indenture).
"Common Stock" of any Person means Capital Stock of the Person
that does not rank prior, as to the payment of dividends or as to the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding up of the Person, to shares of Capital Stock of any other
class of the Person.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursu ant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Order" or "Company Request" means a written request
or order signed in the name of the Company by a member of the Company's manage
ment board or its supervisory board, the Chief Executive Officer, the President
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee.
"Consolidated Coverage Ratio" of any Person on any date of
determi nation (the "Transaction Date") means the ratio, on a pro forma basis,
of (a) the aggregate amount of Consolidated EBITDA of such Person attributable
to continuing operations and businesses (exclusive of amounts attributable to
operations and business permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consoli dated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom to the extent used to refinance or
retire
6
<PAGE>
other Indebtedness) shall be assumed to have occurred on the first day of such
Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attribut able to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the
12-month period immediately following the Transaction Date) that has the effect
of fixing the interest rate on the date of compu tation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Invested Equity Capital" means, with respect to
any Person as of any date, the sum of the Invested Equity Capital of such Person
as of such date and, without duplication, the Invested Equity Capital of each of
its Subsid iaries as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Subsidiary of such Person shall
not include any amounts that would be included in the Consolidated Invested
Equity Capital of any equity owner of such Subsidiary, to the extent that such
amounts were utilized by such equity owner prior to such date to permit the
incurrence of Indebtedness pursuant to clauses 2(iii) and (c)(3) of Section
10.11. For example, if a direct Subsidiary of the Com pany has Consolidated
Invested Equity Capital of $100 and incurs $225 of such Indebtedness, then a
direct or indirect Subsidiary of such Subsidiary will not be deemed to have any
Invested Equity Capital based on contributions or loans to it by such first
Subsidiary. In addition, the Invested Equity Capital of a Subsidiary of a Person
will never be considered to be greater than the Invested Equity Capital of such
Person, except as a result of contributions of Invested Equity Capital to such
Subsidiary by third parties.
"Consolidation" means, with respect to any Person, the
consolidation of the accounts of the Subsidiaries with those of such Person, all
in accordance with GAAP; provided that "Consolidation" will not include
consolidation of the accounts of any Unrestricted Subsidiary with the accounts
of such Person. The term "Consol idated" has a correlative meaning to the
foregoing.
"Consolidated EBITDA" means, with respect to any Person, for
any period, the Consolidated Net Income of such Person for such period adjusted
to add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
7
<PAGE>
(1) Consolidated income tax expense,
(2) Consolidated depreciation and amortization expense,
(3) Consolidated Fixed Charges, and
(4) non-cash stock-based compensation,
less the amount of all cash payments made by such Person or
any of its Subsidiaries during such period to the extent such payments relate to
non-cash charges that were added back in determining Consolidated EBITDA for
such period or any prior period; provided that Consolidated income tax expense,
depreciation and amortization of a Subsidiary that is not a Wholly Owned
Subsidiary shall only be added to the extent of the equity interest of such
Person in such Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any
period, the aggregate amount (without duplication and determined in each case in
accordance with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or
scheduled to be paid or accrued (including, in accordance with
the following sentence, interest attributable to Capitalized
Lease Obligations) of such Person and its Consolidated
Subsidiaries during such period, including (1) original issue
discount and non-cash interest payments or accruals on any
Indebtedness, (2) the interest portion of all deferred payment
obligations, and (3) all commissions, discounts and other fees
and charges owed with respect to bankers' acceptances and
letters of credit financings and currency and Interest Swap
and Hedging Obligations, in each case to the extent
attributable to such period,
(b) the amount of dividends accrued or payable (or guaranteed)
by such Person or any of its Consolidated Subsidiaries in
respect of Preferred Stock (other than by Subsidiaries of such
Person to such Person or such Person's Wholly Owned
Subsidiaries).
For purposes of this definition, (x) interest on a Capitalized
Lease Obligation shall be deemed to accrue at an interest rate reasonably
determined in good faith by the Company to be the rate of interest implicit in
such Capitalized Lease Obligation in accordance with GAAP and (y) interest
expense attributable to any Indebtedness represented by the guaranty by such
Person or a Subsidiary of such
8
<PAGE>
Person of an obligation of another Person shall be deemed to be the interest
expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any Person
for any period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a Consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(a) all gains (but not losses) which are either extraordinary
(as determined in accordance with GAAP) or are nonrecurring
(including any gain from the sale or other disposition of
assets outside the ordi nary course of business or from the
issuance or sale of any capital stock),
(b) the net income, if positive, of any Person, other than a
Consol idated Subsidiary, in which such Person or any of its
Consolidated Subsidiaries has an interest, except to the
extent of the amount of any dividends or distributions
actually paid in cash to such Person or a Consolidated
Subsidiary of such Person during such period, but in any case
not in excess of such Person's pro rata equity interest share
of such Person's net income for such period,
(c) the net income or loss of any Person acquired in a pooling
of interests transaction for any period prior to the date of
such acquisi tion, and
(d) the net income, if positive, of any such Person's
Consolidated Subsidiaries to the extent that the declaration
or payment of dividends or similar distributions is not at the
time permitted by operation of the terms of its charter or
bylaws or any other agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to
such Consolidated Subsidiary other than this Indenture.
"Consolidated Subsidiary" means, for any Person, each
Subsidiary (excluding all Unrestricted Subsidiaries) of such Person (whether now
existing or hereafter created or acquired) the financial statements of which are
Consolidated for financial statement reporting purposes with the financial
statements of such Person in accordance with GAAP.
9
<PAGE>
"Consolidated Tangible Assets" of any Person means the total
amount of assets less applicable reserves and other properly deductible items
which under GAAP would be calculated on a Consolidated balance sheet of the
Person and its Subsidiaries after deducting all goodwill, trademarks, patents,
unamortized debt discount and expense and other like intangibles, which, in each
case under GAAP, would be included on such Consolidated balance sheet.
"Continuing Director" means during any period of 12
consecutive months after the Issue Date, individuals who at the beginning of any
such 12-month period constituted the Supervisory Board of the Company (together
with any new supervisory directors whose election by the shareholders was from a
list of candi dates drawn up by the holder or holders of the Company's priority
shares and new supervisory directors designated in or provided for in an
agreement regarding the merger, consolidation or sale, transfer or other
conveyance, of all or substantially all of the assets of the Company or the
Parent, if such agreement was approved by a vote of such majority of supervisory
directors).
"Corporate Trust Office" means the principal corporate trust
office of the Trustee, at which at any particular time its corporate trust
business shall be administered, which office at the date of execution of this
Indenture is located at 5 Carmelite Street, London EC4Y 0PA, except that, with
respect to presentation of Securities for payment or for registration of
transfer or exchange, such term shall mean the office or agency of the Trustee
at which, at any particular time, its corpo rate agency business shall be
conducted.
"Corporation" includes Corporations, associations, companies
and business trusts.
"Credit Agreement" means the loan and note issuance agreement
dated July 27, 1999 between certain Subsidiaries of the Company and Bank of
American International Limited, CIBC World Markets plc, Citibank, N.A.,
MeesPierson N.V., Paribas, The Royal Bank of Scotland plc, Toronto Dominion Bank
Europe Limited and The Toronto Dominion Bank, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, as such agreement and/or related documents may be amended,
restated, supplemented, renewed, replaced or otherwise modified from time to
time whether or not with the same agent, trustee, representative lenders or
Holders, and, subject to the proviso to the next succeeding sentence,
irrespective of any changes in the terms and conditions thereof. Without
limiting the generality of the foregoing, the term "Credit Agreement" shall
include agreements in respect of Interest Swap and Hedging
10
<PAGE>
Obligations with lenders party to the Credit Agreement and shall also include
any amendment, amendment and restatement, renewal, extension, restructuring,
supple ment or modification to any Credit Agreement and all refundings,
refinancings and replacements of any Credit Agreement, including any agreement:
(1) extending the maturity of any Indebtedness incurred
thereunder or contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so
long as borrowers and guarantors may include one or more of
the Company and its Subsidiaries and their respective
successors and assigns,
(3) increasing the amount of Indebtedness incurred thereunder
or available to be borrowed thereunder; provided that on the
date such Indebtedness is incurred it would not be prohibited
by Section 10.11;or
(4) otherwise altering the terms and conditions thereof in a
man ner not prohibited by the other terms of this Indenture.
"CT Corporation System" has the meaning specified in Section
1.19.
"Default" means any event that is or with the passage of time
or the giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the DTC or the Common Depositary, as the
case may be.
"Disqualified Capital Stock" means (a) except as set forth in
clause (b), with respect to any Person, Equity Interests of such Person that, by
its terms or by the terms of any security into which it is convertible,
exercisable or exchangeable, is, or upon the happening of an event or the
passage of time or both would be, required to be redeemed or repurchased
(including at the option of the holder thereof) by such Person or any of its
Subsidiaries, in whole or in part, on or prior to 91 days following the Stated
Maturity of the Securities and (b) with respect to any Subsidiary of the
Company, any Equity Interests of such Subsidiary other than (i) any common
equity with no economic preference, privileges, or redemption or repayment provi
sions or (ii) preferred stock convertible into such common equity of such
Subsidiary
11
<PAGE>
with no payment of dividends or liquidation preference due or payable thereon on
or prior to 91 days following the Stated Maturity of the Securities.
"Dollars" or "$" or "U.S. Dollars" means the lawful currency
of the United States of America and, in relation to any amount to be advanced or
paid under this Indenture or the Securities, funds having immediate value.
"DTC" means the Depository Trust Company, its nominees and
successors.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership, participation or membership interests in, such Person.
"Equity Offering" means (i) an underwritten public offering or
floatation of ordinary shares of the Company which has been registered under the
Securities Act, or admitted to listing on the Amsterdam Stock Exchange or its
equivalent in any other European Union jurisdiction, in any case resulting in
Net Cash Proceeds to the Company of at least $100,000,000 (or its foreign
currency equivalent), or (ii) a sale of Qualified Capital Stock of the Company
to any Person which is (or a controlled Affiliate of a Person which is), engaged
principally in a Related Business, resulting in Net Cash Proceeds to the Company
of at least $100,000,000 (or its foreign currency equivalent); provided,
however, that a sale of Qualified Capital Stock of the Company to any subsidiary
of the Company or any Person that is a controlled Affiliate of the Company shall
not be an Equity Offering.
"Euro" or "(U)" means the currency adopted by those countries
participating in the third stage of European monetary union.
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear System.
"European Economic Area" means the member nations of the Euro
pean Economic Area pursuant to the Oporto Agreement on the European Economic
Area dated May 2, 1992 as amended.
"European Union" means the member nations to the third stage
of economic and monetary union pursuant to the treaty of Rome establishing the
12
<PAGE>
European Community, as amended by the Treaty on European Union, signed at
Maastricht on February 7, 1992.
"Event of Default" has the meaning set forth under Section
5.1.
"Event of Loss" means, with respect to any property or asset,
any (1) loss, destruction or damage of such property or asset or (2) any
condemnation, seizure or taking, by exercise of the power of eminent domain or
otherwise, of such property or asset, or confiscation or requisition of the use
of such property or asset.
"Exchange Act" means the United States Securities Exchange Act
of 1934, as amended (or any successor act), and the rules and regulations
thereunder (or respective successors thereto).
"Exchange Offer" means the exchange registered with the SEC to
exchange Initial Securities for Exchange Securities pursuant to the terms of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange
Offer Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Securities to be issued
pursuant to this Indenture in connection with the offer to exchange Securities
for Initial Securi ties that may be made by the Company pursuant to the
Registration Rights Agree ment.
"Exempted Affiliate Transaction" means (i) Restricted Payments
comprised of pro rata dividends paid in cash on any class of Equity Interests
and made in compliance with this Indenture, (ii) transactions, at arms-length
and as so set forth in a Board Resolution, between or among holders of any
Equity Interest of any Subsidiary of the Company and such Subsidiary, so long as
such holder is not otherwise an Affiliate of the Company, (iii) transactions
between or among the Company, and its Subsidiaries, (iv) the Company or any of
its Subsidiaries entering into or performing any employment agreement, stock
option agreement or other agreement relating to the terms of employment,
compensation or termination of employment in the ordinary course of business of
the Company or such Subsidiary, (v) any contract, agreement, arrangement or
transaction with any Affiliate in effect as of the Issue Date and any amendment,
waiver, variation or other modification in respect of any such contract,
agreement, arrangement or transaction so long as such amendment, waiver,
variation or other modification is not disadvantageous to the
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Company and its Subsidiaries in any material respect, (vi) Restricted Payments
and Investments permitted under Section 10.12, (vii) transactions with
customers, clients, suppliers, or purchasers or sellers of goods or services, in
each case in the ordinary course of business and otherwise in compliance with
the terms of this Indenture which are fair to the Company and its Subsidiaries,
in the reasonable determination of the Company or Subsidiary, as the case may
be, or are on terms no less favorable to the Company or the Subsidiary than
those that could be obtained in a comparable arm's length transaction with an
entity that is not an Affiliate or Principal and is in the best interests of the
Company or the Subsidiary, and (viii) transactions with respect to network
capacity or dark or lit communications fiber capacity or telecom munications
conduit between the Company or any Subsidiary and any Unrestricted Subsidiary or
other Affiliate and joint sales and marketing pursuant to an agreement or
agreements between the Company or any Subsidiary and any Unrestricted Subsid
iary or other Affiliate, provided that in the case of this clause (viii), such
agreements are on terms that are no less favorable to the Company or the
Subsidiary than those that could be obtained in an arm's-length transaction with
an entity that is not an Affiliate or Principal and are in the best interests of
the Company and the Subsidiary entered into in the ordinary course of business.
"Existing Agreements" means (i) any and all instruments, as in
effect on the Issue Date, between the Company or any of its Subsidiaries and a
commercial lending institution or institutions, which makes borrowing of funds
available to the Company or any such Subsidiary from such institution or
institutions and (ii) any replacements of the instruments in clause (i) entered
into by the respective Subsidiary that was party to the instrument so replaced
or their respective successors and a commercial lending institution or
institutions for an amount up to the maximum amount of the instrument so
replaced.
"Existing Indebtedness" means the Indebtedness of the Company
and its Subsidiaries (other than Indebtedness under the Credit Agreement) in
existence on the Issue Date, reduced to the extent such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11
of the United States Code, as amended from time to time.
"GAAP" means United States generally accepted accounting
princi ples set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public Accountants and
statements and pronouncements of the Financial Accounting Standards Board or in
such other
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statements by such other entity as approved by a significant segment of the
account ing profession in the United States as in effect on the Issue Date.
"Global Security" means a Regulation S Global Security (or
Unrestricted Global Security) or a Restricted Global Security.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation of any other Person and, without limiting the generality of the
foregoing, any obligation, direct or indirect, contingent or otherwise, of such
Person (i) to purchase or pay (or advance or supply funds for the purchase or
payment of) such Indebtedness or other obligation of such other Person (whether
arising by virtue of partnership arrange ments, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement conditions or otherwise) or (ii) entered into for
purposes of assuring in any other manner the obligee of such Indebtedness or
other obligation of the payment thereof or to protect such obligee against loss
in respect thereof (in whole or in part); provided that the term "Guaran tee"
shall not include endorsements for collection or deposit in the ordinary course
of business. The term "Guarantee" used as verb has a corresponding meaning.
"Guarantor" is defined to mean any Person obligated under a
Guarantee.
"Holder" means a Person in whose name a Security is registered
in the Security Register.
"Indebtedness" of any Person means, without duplication,
(a) all liabilities and obligations, contingent or otherwise,
of any Person, to the extent such liabilities and obligations
would appear as a liability upon the Consolidated balance
sheet of such Person in accor dance with GAAP, (1) in respect
of borrowed money (whether or not the recourse of the lender
is to the whole of the assets of such Person or only to a
portion thereof), (2) evidenced by bonds, notes, deben tures
or similar instruments, (3) representing the balance deferred
and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to
trade creditors which have remained unpaid for greater than 90
days past their original due date) those incurred in the
ordinary course of its business that would constitute
ordinarily a trade payable to trade creditors;
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(b) all liabilities and obligations, contingent or otherwise,
of such Person (1) evidenced by bankers' acceptances or
similar instruments issued or accepted by banks, (2) relating
to any Capitalized Lease Obligation, or (3) evidenced by a
letter of credit or a reimbursement obligation of such Person
with respect to any letter of credit (other than obligations
with respect to letters of credit securing obligations (other
than obligations described in (a)(1) through (3) above)
entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon);
(c) all net obligations of such Person under Interest
Swap and Hedging Obligations;
(d) all liabilities and obligations of others of the kinds
described in the preceding clauses (a), (b) or (c) that such
Person has guaranteed or provided credit support or that is
otherwise its legal liability or which are secured by any
assets or property of such Person;
(e) any and all deferrals, renewals, extensions, refinancing
and refundings (whether direct or indirect) of, or amendments,
modifica tions or supplements to, any liability of the kind
described in any of the preceding clauses (a), (b), (c) or
(d), or this clause (e), whether or not between or among the
same parties; and
(f) all Disqualified Capital Stock of such Person (measured at
the greater of its voluntary or involuntary maximum fixed
repurchase price, plus accrued and unpaid dividends).
For purposes hereof, the "maximum fixed repurchase price" of
any Disqualified Capital Stock which does not have a fixed
repurchase price shall be calculated in accordance with the
terms of such Disqual ified Capital Stock as if such
Disqualified Capital Stock were pur chased on any date on
which Indebtedness shall be required to be determined pursuant
to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good
faith by the Supervisory Board of the Company.
The amount of any Indebtedness outstanding as of any date
shall be (1) the accreted value thereof, in the case of any
Indebtedness issued
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with original issue discount, but the accretion of original
issue dis count in accordance with the original terms of
Indebtedness issued with an original issue discount will not
be deemed to be an incurrence and (2) the principal amount
thereof, excluding any interest thereon, in the case of any
other Indebtedness.
"Indenture" means this instrument as originally executed and
as it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Institutional Accredited Investor" means an institutional
"Accredited Investor", as defined in Regulation D of the Securities Act.
"Initial Purchasers" means, with respect to the Initial
Securities issued pursuant to this Indenture on the Issue Date, each of Goldman
Sachs International, Donaldson, Lufkin & Jenrette International, Morgan Stanley
& Co. International Limited, TD Securities (USA) Inc., Bank of America
International Limited, Chase Manhattan International Limited, CIBC World Markets
Corp., Credit Suisse First Boston (Europe) Limited, Merrill Lynch International
and Salomon Brothers International Limited.
"Initial Securities" means the $735,000,000 12 1/2% Senior
Discount Notes due 2009, issued under this Indenture on the Issue Date.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of
any Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Invested Equity Capital" means, with respect to any Person as
of any date, without duplication, the sum of (i) the total dollar amount
contributed in cash
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plus the value of all property contributed (valued at fair market value at the
time of contribution, determined in good faith by the Supervisory Board) to such
Person since the date of its creation in the form of common equity, plus, (ii)
the total dollar amount contributed in cash plus the value of all property
contributed (valued at fair market value at the time of contribution, determined
in good faith by the Supervisory Board) to such Person since the date of
creation by the holders of its common equity (and their Affiliates) in
consideration of the issuance of preferred equity or Indebted ness, on a basis
that is substantially proportionate to their common equity interests (with any
disproportionately large equity interests received by the Company or a
Subsidiary relative to their respective contributions being ignored for this
purpose), plus, (iii) the total dollar amount contributed in cash plus the value
of all property contributed (valued at fair market value at the time of
contribution, determined in good faith by the Supervisory Board) to such Person
since the date of its creation by the Company or a Wholly Owned Subsidiary of
the Company in consideration of the issuance of preferred equity or
Indebtedness, and less (iv) the value of all interest, returns in respect of
Indebtedness, dividends and other distributions (in whatever form and however
designated, valued at fair market value as determined in good faith by the
Supervisory Board) made by such Person since the date of its creation to the
holders of its common equity (and their Affiliates); provided that in no event
shall the aggregate amount of interest, dividends and other distributions made
to any holder of common equity of a Person (or its Affiliates) operate to reduce
the Invested Equity Capital of such Person by more than the total contributions
to such Person (per clauses (i) through (iii) above) by such equity holder (and
its Affiliates).
"Investment" by any Person in any other Person means (without
duplication):
(a) the acquisition (whether by purchase, merger,
consolidation or otherwise) by such Person (whether for cash,
property, services, securities or otherwise) of capital stock,
bonds, notes, debentures, partnership or other ownership
interests or other securities, including any options or
warrants, of such other Person or any agreement to make any
such acquisition;
(b) the making by such Person of any deposit with, or advance,
loan or other extension of credit to, such other Person
(including the purchase of property from another Person
subject to an understanding or agreement, contingent or
otherwise, to resell such property to such other Person) or
any commitment to make any such advance, loan or
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<PAGE>
extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of
business);
(c) other than guarantees of Indebtedness of the Company or to
the extent permitted by Section 10.11, the entering into by
such Person of any guarantee of, or other credit support or
contingent obligation with respect to, Indebtedness or other
liability of such other Person;
(d) the making of any capital contribution by such Person
to such other Person; and
(e) the designation by the Supervisory Board of the Company of
any Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount
equal to the fair market value of the net assets of any
Subsidiary (or, if neither the Company nor any of its
Subsidiaries has theretofore made an Investment in such
subsidiary, in an amount equal to the Invest ments being
made), at the time that such Subsidiary is designated an
Unrestricted Subsidiary, and any property transferred to an
Unre stricted Subsidiary from the Company or a Subsidiary of
the Company shall be deemed an Investment valued at its fair
market value at the time of such transfer. Investments shall
be measured by the fair market value attributed to the
Investment at the time made or re turned, as applicable.
"Issue Date" means the date of first issuance of the Initial
Securities hereunder.
"Leverage Ratio" on any date of determination (the
"Transaction Date") for any Person means the ratio, on a pro forma basis, of (a)
the aggregate amount of Indebtedness of such Person and its Subsidiaries on a
Consolidated basis to (b) the aggregate amount of Annualized Consolidated EBITDA
of such Person attributable to continuing operations and business (exclusive of
amounts attributable to operations and businesses permanently discontinued or
disposed of); provided that for purposes of calculating Annualized Consolidated
EBITDA for this definition,
(1) acquisitions which occurred during the Reference Period or subsequent
to the Reference Period and on or prior to the
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Transaction Date shall be assumed to have occurred on the first day of
the Reference Period,
(2) transactions giving rise to the need to calculate the Leverage Ratio
shall be assumed to have occurred on the first day of the Reference
Period,
(3) the incurrence of any Indebtedness or issuance of any Disqual ified
Capital Stock during the Reference Period or subsequent to the
Reference Period and on or prior to the Transaction Date (and the
application of the proceeds therefrom to the extent used to refinance
or retire other Indebtedness) shall be as sumed to have occurred on
the first day of the Reference Period, and
(4) the Consolidated Fixed Charges of such Person attributable to interest
on any Indebtedness or dividends on any Disqualified Capital Stock
bearing a floating interest (or dividend) rate shall be computed on a
pro forma basis as if the average rate in effect from the beginning of
the Reference Period to the Transaction Date had been the applicable
rate for the entire period, unless such Person or any of its
Subsidiaries is a party to an Interest Swap or Hedging Obligation
(which shall remain in effect for the 12-month period immediately
following the Transaction Date) that has the effect of fixing the
interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Lien" means any mortgage, charge, pledge, lien (statutory or
other wise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired. For purposes of this definition, the
sale, lease, convey ance, or other transfer by the Company or any Subsidiary of
the Company, in the ordinary course of its business and not constituting a
security interest in assets serving as collateral for any of their respective
obligations, including the granting of indefeasible rights of use or equivalent
arrangements with respect to, network capacity, communications fiber capacity or
conduit, shall not be a Lien.
"Liquidated Damages" means all liquidated damages then owing
pursuant to the Registration Rights Agreement.
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"Maturity," when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declara tion of acceleration, notice of redemption or otherwise.
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Qualified Capital Stock and by the Company and its
Subsidiaries in respect of an Asset Sale, plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after the Issue Date, the amount of
cash originally received by the Com pany upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary) expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale or sale of Qualified Capital Stock,
and, in the case of an Asset Sale only, less the amount (estimated reasonably
and in good faith by the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any of its respec tive
Subsidiaries in connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any avail able operating losses and net operating loss
carryovers, tax credits and tax credit carryforwards, and similar tax
attributes.
"New Acquisitions" means the acquisition by the Company or its
subsidiaries of @Entertainment, Inc., A2000 Holding N.V., Time Warner Cable
France S.A., Reseaux Cables de France S.A., Videopole S.A., Kabel Plus, a.s.,
SBS Broadcasting S.A., GelreVision N.V., SKT spol. s.r.o. and NBS Broadband
Services AB, all substantially as described in the Offering Circular (and each
such Person's
respective subsidiaries).
"Non-Recourse Indebtedness" means Indebtedness of a Person to
the extent that under the terms thereof and pursuant to applicable law, no
personal recourse could be had against the Company or its Subsidiaries (giving
effect to the designations of such Person as an Unrestricted Subsidiary) for the
Payment of the principal of or interest or premium or other amounts with respect
to such Indebted ness or for any claim based on such Indebtedness and that
enforcement of obligations on such Indebtedness is limited solely to recourse
against interests in specified assets.
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"Obligation" means any principal, premium or interest payment,
or monetary penalty, or damages, due by the Company under the terms of the
Securities or this Indenture, including any Liquidated Damages due pursuant to
the terms of the Registration Rights Agreement.
"Offering" means the offering of the Securities by the
Company.
"Offering Circular" means the offering memorandum dated July
27, 1999, pursuant to which the Securities were offered and sold.
"Officers' Certificate" means a certificate signed by a member
of the Company's Management Board or its Supervisory Board, the Chief Executive
Officer or a Vice President, and by the Chief Financial Officer, the Chief
Accounting Officer, the Treasurer, an Assistant Treasurer, the Secretary, an
Assistant Secretary or other authorized representative of the Company and
delivered to the Trustee in the form substantially similar to Exhibit E attached
hereto, which shall comply with the Indenture, except in the case of an
authentication order pursuant to Section 3.3, which must only be signed by one
of the above noted persons.
"Opinion of Counsel" means an opinion of counsel in the form
substantially similar to Exhibit F attached hereto, who may be counsel to the
Company, including an employee of the Company.
"Outstanding," when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the
Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose
payment or redemption money in the necessary amount has been
theretofore deposited with the Trustee or any Paying Agent (other than
the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities; provided that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture;
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<PAGE>
(iii) Securities, except to the extent provided in
Sections 12.2 and 12.3, with respect to which the Company has effected
Defeasance and/or Covenant Defeasance as provided in Article Twelve;
and
(iv) Securities which have been paid pursuant to
Section 3.6 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securi ties
are held by a bona fide purchaser in whose hands the Securities are
valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of Outstanding Securities have given any request,
demand, authorization, direction, consent, notice or waiver hereunder, and for
the purpose of making the calculations required by TIA Section 313, Securities
owned by the Company or any other obligor upon the Securities or any Affiliate
of the Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calcula tion or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which any
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Parent" means UnitedGlobalCom, Inc. and its successor(s).
"Parent Stock Instrument" means either (a) Indebtedness
(including Disqualified Capital Stock) and Qualified Capital Stock of the
Company that is convertible or exchangeable into, at the option of the Company
or any holder thereof, or secured by, or whose value to the holder thereof is
dependent upon any shares of Parent's Capital Stock that are owned by the
Company or any of its Subsidiaries as of the Issue Date; provided that such
Indebtedness and Capital Stock of the Company shall have been issued in
consideration of cash, the net proceeds of which shall have been received by the
Company or (b) the Class A Common Stock of Parent owned by the Company or any of
its Subsidiaries as of the Issue Date or any like number of
23
<PAGE>
shares of Class B Common Stock of Parent issued in exchange for the shares of
the Class A Common Stock of Parent held as of the Issue Date.
"Participants" means institutions that have accounts with DTC
or its nominee and with respect to the Regulation S Global Securities,
institutions that have accounts with Euroclear or Cedelbank or their respective
nominees.
"Paying Agent" means an office or agency of the Company where
Securities may be presented for payment.
"Payment Date" means any date on which a payment of principal,
premium, if any, interest (or Liquidated Damages, if any) is due to be paid on
any of the Securities.
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Secu
rities and issued pursuant to this Indenture and Indebtedness
evi denced by the Discount Notes and issued pursuant to the
Discount Notes Indenture up to the amounts being issued on the
original Issue Date;
(b) the Company may incur Refinancing Indebtedness with
respect to any Indebtedness (including Disqualified Capital
Stock), described in clause (a) or this clause (b) of this
definition or incurred pursuant to clause (1)(ii) of Section
10.11, and any Subsidiary may incur Refinancing Indebtedness
(including Disqualified Capital Stock), described in this
clause (b) or clause (2)(c) of Section 10.11 and the Company
and its Subsidiary may incur Refinancing Indebted ness with
respect to Indebtedness which is outstanding on the Issue Date
(after giving effect to the New Acquisitions) (less the amount
of any such Existing Indebtedness repaid on or after the Issue
Date or which was refinanced pursuant to this clause (b));
(c) the Company and its Subsidiaries may incur Indebtedness
solely in respect of bankers acceptances, letters of credit
and perfor mance and surety bonds and completion guarantees
(to the extent that such incurrence does not result in the
incurrence of any obligation to repay any obligation relating
to borrowed money of others), all in the ordinary course of
business in accordance with customary industry
24
<PAGE>
practices, in amounts and for the purposes customary in the
Company's industry;
(d) the Company may incur Indebtedness to any Subsidiary, and
any Subsidiary may incur Indebtedness to any other Subsidiary
or to the Company; provided that in the case of Indebtedness
of the Com pany, such obligations shall be unsecured and
subordinated in all respects to the Company's obligations
pursuant to the Securities and the Discount Notes and any
event that causes such Subsidiary no longer to be a Subsidiary
(including by designation to be an Unre stricted Subsidiary)
shall be deemed to be a new incurrence of such Indebtedness,
if then outstanding, subject to Section 10.11;
(e) the Company and its Subsidiaries may incur Interest Swap
and Hedging Obligations that are incurred for the purpose of
fixing or hedging interest rate or currency risk with respect
to any fixed or floating rate Indebtedness that is permitted
by this Indenture to be outstanding or any receivable or
liability the payment of which is determined by reference to a
foreign currency; provided that the notional amount of any
such Interest Swap and Hedging Obligation does not exceed the
principal amount of Indebtedness to which such Interest Swap
and Hedging Obligation relates;
(f) the Company and its Subsidiaries may guarantee
Indebtedness of any of the Company's Subsidiaries, provided
that the incurrence of such Indebtedness by such Subsidiary is
permitted under this Inden ture; and
(g) Subsidiaries of the Company may issue preferred stock or
Indebtedness to the holders (or their Affiliates) of the
common equity of such Subsidiary on a basis that is
substantially proportionate to their common equity interests
(with any disproportionately large equity interests received
by the Company or a Subsidiary of the Company relative to
their respective contributions being ignored for this
purpose).
"Permitted Investment" means:
(a) Cash Equivalents;
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<PAGE>
(b) intercompany Indebtedness to the extent permitted under
clause (d) of the definition of "Permitted Indebtedness";
(c) an Investment by the Company or a Subsidiary of the Com
pany in a Person engaged primarily in a Related Business if as
a result of such Investment such Person becomes a Subsidiary
of the Com pany or is merged with or into the Company or a
Subsidiary of the Company, so long as the surviving entity is
the Company or a Subsid iary of the Company;
(d) an Investment in any Subsidiary of the Company;
(e) other Investments in any Person or Persons engaged
primarily in a Related Business with respect to which the
Company maintains the power to influence or participate in the
management of such Person by virtue of representation on such
Person's board or directors or through a contractual
relationship with such Person or its holders of Capital Stock;
(f) other Investments in any Person or Persons engaged
primarily in a Related Business with respect to which the
Supervisory Board of the Company or of the relevant Subsidiary
determines in its good faith reasonable judgement that the
Company or any of its Subsidiaries will receive as a result of
such Investment commensurate network services benefits
(including by becoming a customer, client, supplier, pur
chaser or seller of goods or services of or to such Person or
Persons) from the arrangements entered into as a result of
such Investment;
(g) other Investments in any Person or Persons engaged
primarily in a Related Business; provided that, after giving
pro forma effect to each such Investment, the amount of all
such Investments made solely in reliance upon this clause (g)
on and after the Issue Date that are Outstanding at any time
does not exceed in the aggregate $100,000,000 (or the foreign
currency equivalent thereof measured on the date of the making
of such Investment), plus, unless such amounts shall have been
credited under clause (3) of Section 10.12 and utilized to
make a Restricted Payment, (w) the amount of the Net Cash Pro
ceeds to the Company from the sale of Qualified Capital Stock
(other than (i) to a Subsidiary of the Company, and (ii) to
the extent applied in a Qualified Exchange), (x) an amount
equal to 50% of the Net Cash
26
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Proceeds from Special Character Asset Sales, (y) an amount
equal to the Net Cash Proceeds to the Company or any of its
Subsidiaries of any sale of securities constituting a Parent
Stock Instrument (other than (i) to a Subsidiary of the
Company, and (ii) to the extent applied in connection with a
Qualified Exchange) and (z) the amount of Investments made
pursuant to this clause (g) after the Issue Date that are
returned to the Company or any Subsidiary on or prior to the
date of any such calculation, which amount shall be the lesser
of (i) the amount of the cash invested plus the value of all
noncash investments (valued at the fair market value at the
time of the Investment, deter mined in the good faith
reasonable judgment of the Company or the relevant Subsidiary)
and (ii) the amount of the Net Cash Proceeds received plus the
value of noncash proceeds received (valued at the fair market
value at the time of the return of such Investment, deter
mined in the good faith reasonable judgment of the Company or
the relevant Subsidiary);
(h) Investments made in the ordinary course of business as
partial or full payment for constructing a network relating
principally to a Related Business of the Company or any
Subsidiary;
(i) Investments solely in the form and consisting of Capital
Stock of the Company (other than Disqualified Capital Stock);
(j) any Investment acquired by the Company or any of its re
stricted Subsidiaries (a) in exchange for any other Investment
or accounts receivable held by the Company or any such
restricted Subsidiary in connection with or as a result of a
bankruptcy, workout, reorganization or recapitalization of the
issuer of such other invest ment or accounts receivable or (b)
as a result of a foreclosure by the Company or any of its
restricted Subsidiaries with respect to any secured Investment
or other transfer of title with respect to any se cured
Investment in default;
(k) an Investment in prepaid expenses and lease, utility and
workers' compensation, performance and other similar deposits
in the ordinary course of business;
(l) loans, advances, or extensions of credit to employees,
officers, directors made in the ordinary course of business;
and
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(m) the net obligations of any counterparty under Interest
Swap and Hedging Obligations obtained in conformity with
industry prac tices.
(n) Investments in SBS Broadcasting S.A. not to exceed the
amounts required to be made by the Company pursuant to the
Invest ment Agreement by and between, SBS Broadcasting S.A.,
the Com pany and United International Holdings Inc., dated
June 29, 1999, relating to the acquisition by the Company of
Equity Interests in SBS Broadcasting S.A.; and
(o) Investments, directly or indirectly, in ARA Cable
Services Inc. or ARA Programming & Distribution Ltd. of Saudi
Arabia, not to exceed $75,000,000.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Liens securing the Securities or the Senior Notes;
(c) Liens securing Indebtedness, or any agreement (including
any Equity Interest) relating to any property, asset, or
business acquired, of a Person existing at the time such
Person becomes a Subsidiary (including by designation) or is
merged with or into the Company or a Subsidiary or Liens
securing Indebtedness incurred in connection with an
Acquisition, provided that such Liens were in existence prior
to the date of such acquisition, merger or consolidation, were
not incurred in anticipation thereof, and do not extend to any
other assets than those of the Person (or its businesses)
being acquired (or so designated);
(d) leases or subleases granted to other Persons in the
ordinary course of business not materially interfering with
the conduct of the business of the Company or any of its
Subsidiaries or materially detracting from the value of the
relative assets of the Company or any Subsidiary;
(e) Liens arising from precautionary Uniform Commercial Code
financing statement filings regarding operating leases entered
into by
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the Company or any of its Subsidiaries in the ordinary course
of business;
(f) Liens securing Refinancing Indebtedness incurred to refi
nance any Indebtedness that was previously so secured in a
manner no more adverse to the Holders of the Securities than
the terms of the Liens securing such refinanced Indebtedness,
provided that the In debtedness secured is not increased and
the Lien is not extended to any additional assets or property
that would not have been security for the Indebtedness
refinanced;
(g) Liens securing Indebtedness incurred under the Credit
Agree ment and other Indebtedness solely of Subsidiaries of
the Company incurred in accordance with the terms of this
Indenture; and
(h) Liens in favor of the Company or Liens on assets of
Subsidiar ies of the Company in favor of other such
Subsidiaries.
(i) Liens securing Refinancing Indebtedness that complies with
the definition of "Refinancing Indebtedness";
(j) Liens securing Acquired Indebtedness and Indebtedness
assumed in acquiring Related Assets, provided that such Liens
were not put in place in contemplation of the incurrence by
the Company or its Subsidiaries of such Indebtedness, such
Liens do not extend to any property or assets of the Company
or any of its Subsidiaries other than those acquired in
connection therewith, and the Investment that is the subject
of such acquisition is a Permitted Investment;
(k) statutory liens of carriers, warehousemen, mechanics,
material men, landlords, repairmen or other like Liens arising
by operation of law in the ordinary course of business,
provided that (1) the underly ing obligations are not overdue
for a period of more than 30 days, or (2) such Liens are being
contested in good faith and by appropriate proceedings and
adequate reserves with respect thereto are maintained on the
books of the Company in accordance with GAAP; and
(l) Liens not otherwise permitted by this Indenture in an
amount not to exceed 5% of the Company's Consolidated Tangible
Assets.
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"Person" means any Corporation, individual, limited liability
com pany, joint stock company, joint venture, partnership, limited liability
partnership, unincorporated association, governmental regulatory entity,
country, state or political subdivision thereof, trust, municipally or other
entity.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same Indebtedness as that
evidenced by such particular Security; and, for the purposes of this definition,
any Security authenticated and delivered under Section 3.6 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" means any Equity Interest of any class or
classes of a Person (however designated) which is preferred as to payments of
dividends, or as to distributions upon any liquidation or dissolution, over
Equity Interests of any other class of such Person.
"Principals" means Albert M. Carollo, Lawrence F. DeGeorge,
Lawrence J. DeGeorge, Curtis Rochelle, Marian Rochelle, Rochelle Investments,
Ltd. (so long as it is controlled by Curtis or Marian Rochelle), Gene W.
Schneider, G. Schneider Holdings, Co. and The Gene W. Schneider Family Trust (so
long as each is controlled by Gene W. Schneider or trustees appointed by him),
Janet S. Schneider, Mark L. Schneider, Apollo Cable Partners, L.P., and with
respect to any such Person means: (A) any controlling stockholder or 80% (or
more) owned Subsidiary of such Person, or with respect to each individual
Person, (i) family partnerships, Corporations or other entities holding Equity
Interests in the Company, the transferee(s) or the surviving entities or
entities solely for the benefit of such Person or any of the Persons listed in
(ii), (iii), (iv) or (v) below, (ii) such Person's spouse, (iii) such Person's
children, grandchildren, stepchildren, step grandchildren and their spouses,
(iv) heirs, legatees and devisees, and (v) trusts solely for the benefit of any
of the foregoing; or (B) any trust Corporation, partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons beneficially holding an
80% or more controlling interest of which consist of such Person and/or such
other Persons referred to in the immediately preceding clause (A).
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"Purchase Money Indebtedness" of any Person means any Indebted
ness of such Person to any seller or other Person incurred solely to finance the
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acquisition (including in the case of a Capitalized Lease Obligation, the
lease), construction, installation or improvement of any after acquired real or
personal tangible property which, in the reasonable good faith judgment of the
Supervisory Board of the Company, is directly related to a Related Business.
"Qualified Capital Stock" means any Capital Stock of the
Company that is not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement, repurchase
or other acquisition of Capital Stock, or Indebtedness of the
Company issued on or after the Issue Date with the Net Cash
Proceeds received by the Company from the substantially
concurrent sale of its Qualified Capital Stock or, to the
extent used to retire Indebtedness (other than Disqualified
Capital Stock) of the Company issued on or after the Issue
Date, Subordinated Indebtedness of the Company,
(b) any exchange of Qualified Capital Stock of the Company for
any Capital Stock or Indebtedness of the Company issued on or
after the Issue Date, or
(c) any issuance of Subordinated Indebtedness of the Company
in exchange for Indebtedness (other than Disqualified Capital
Stock) of the Company issued on or after the Issue Date.
"Qualified Institutional Buyer" or "QIB" has the meaning
specified in Rule 144A.
"Redemption Date", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the full
fiscal quarter ended immediately preceding any date upon which any determination
is to be made pursuant to the terms of the Securities or this Indenture, for
which Consoli dated financial statements of the Company are available.
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"Refinancing Indebtedness" means Indebtedness (including
Disquali fied Capital Stock) (a) issued in exchange for, or the proceeds from
the issuance and sale of which are used substantially concurrently to repay,
redeem, defease, refund, refinance, discharge or otherwise retire for value, in
whole or in part, or (b) constitut ing an amendment, modification or supplement
to, or a deferral or renewal of ((a) and (b) above are, collectively, a
"Refinancing"), any Indebtedness (including Disqualified Capital Stock and
Refinancing Indebtedness) in a principal amount (or, if issued with an original
issue discount, an original accreted value, determined in accordance with GAAP)
or, in the case of Disqualified Capital Stock, liquidation preference, not to
exceed (after deduction of reasonable and customary fees and expenses incurred
in connection with the Refinancing and the amount of any premium paid in
connection with such Refinancing in accordance with the terms of the documents
governing the Indebtedness (including Disqualified Capital Stock and Refinancing
Indebtedness) refinanced without giving effect to any modification thereof made
in connection with or in contemplation of such refinancing) the lesser of (1)
the principal amount or, in the case of Disqualified Capital Stock, liquidation
preference, of the Indebtedness (including Disqualified Capital Stock and
Refinanc ing Indebtedness) so Refinanced and (2) if such Indebtedness being
Refinanced was issued with an original issue discount, the accreted value
thereof (as determined in accordance with GAAP) at the time of such Refinancing;
provided that (A) such Refinancing Indebtedness shall only be used to refinance
Outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness (except that the Company may refinance
Outstanding Indebtedness of a Subsidiary), (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refi nanced at the time of such Refinancing
and (y) in all respects, be no less contractu ally subordinated or junior, if
applicable, to the rights of Holders of the Securities than was the Indebtedness
(including Disqualified Capital Stock) to be refinanced, (C) such Refinancing
Indebtedness shall have a final stated maturity or redemption date, as
applicable, no earlier than the final stated maturity or redemption date, as
applicable, of the Indebtedness (including Disqualified Capital Stock) to be so
refinanced, and (D) such Refinancing Indebtedness shall be secured (if secured)
in a manner no more adverse to the Holders of the Securities than the terms of
the Liens (if any) securing such refinanced Indebtedness, including, without
limitation, the amount of Indebtedness secured shall not be increased.
"Registrar" means an office or agency of the Company in
London, where Securities may be presented for registration of transfer or
exchange.
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"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof, between the Initial Purchasers and the Company.
"Registration Statement" means the Registration Statement as
defined in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest
Payment Date means January 15 or July 15 (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in
Section 3.3.
"Related Assets" means all assets, rights, contractual or
otherwise, and properties, whether tangible or intangible, used or intended for
use in connection with a Related Business; provided that Related Assets shall
not include any Equity Interests or indebtedness of, or interests in, any
Person.
"Related Business" means the business of constructing,
creating, developing, marketing or operating one or more cable, telephone or
communications systems, including, without limitation, any system for
transmitting, or providing service or product for the transmission of, voice,
video or data through transmission facilities, Internet service providers or any
business reasonably related to any of the foregoing and any business conducted
by the Company or any Subsidiary of the Company on the Issue Date; provided that
the determination of what constitutes a Related Business shall be made in good
faith by the Supervisory Board of the Company.
"Related Business Acquisition" means an Asset Acquisition of
(i) properties or assets to be used in a Related Business, (ii) of the Capital
Stock of any Person that becomes a restricted Subsidiary as a result of such
Asset Acquisition or (iii) of the Capital Stock of any Person that becomes an
Unrestricted Subsidiary as a result of such Asset Acquisition, but only if such
Asset Acquisition would be permitted pursuant to Section 10.12 or as a Permitted
Investment; provided that, in the case of clauses (ii) and (iii), such Person's
assets and properties consist princi pally of properties or assets that will be
used in a Related Business.
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"Replacement Assets" means property or assets that will be
used in a Related Business of the Company or any Subsidiary and Equity Interests
of a Person that becomes a Subsidiary of the Company.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice-president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
mater is referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Global Security" has the meaning specified in
Section 3.3.
"Restricted Investment" means, in one or a series of related
transac tions, any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
(a) the declaration or payment of any dividend or other
distribu tion in respect of Equity Interests of such Person or
any parent or Subsidiary of such Person,
(b) any payment on account of the purchase, redemption or
other acquisition or retirement for value of Equity Interests
of such Person or any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially
concurrent sale of, or in exchange for, Refinancing
Indebtedness, any purchase, redemption, or other acquisition
or retirement for value of, any pay ment in respect of any
amendment of the terms of or any defeasance of, any
Subordinated Indebtedness, directly or indirectly, by such
Person or a parent or Subsidiary of such Person prior to the
scheduled maturity, any scheduled repayment of principal, or
scheduled sinking fund payment, as the case may be, of such
Indebtedness and
(d) any Restricted Investment by such Person;
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provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of a Person or the parent of such Person to the extent payable solely in shares
of Qualified Capital Stock of such Person, or (2) any dividend, distribution or
other payment to the Company or any of its Subsidiaries by the Company or any of
its Subsidiaries, or (3) any payment on account of the exchange of shares of
Common Stock of Parent for a like number of substantially identical (except with
regard to voting rights) shares of Common Stock of Parent, or (4) payments to or
for the account of the Stichting Administratiekantor UPC (the "Foundation") or
its successors of amounts related to taxes payable upon the grant of options to
certain employees in shares of the Company held by the Foundation, provided
that, for purposes of this clause (4), neither the Company nor any of its
Subsidiaries shall be liable to any Person in respect of such amounts, other
than for the payment of such amounts actually received or to be received by it,
to the Foundation.
"Restricted Period" means the period through and including the
40th day after the later of the commencement of the Offering and the Issue Date
of the Initial Securities.
"Restricted Securities" means Restricted Global Securities and
Regulation S Global Securities.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the United States Securities and Exchange
Commission.
"Securities" means, collectively, the "Securities" issued
under this Indenture, including the Initial Securities and the Exchange
Securities.
"Securities Act" means the United States Securities Act of
1933, as amended.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 3.5.
"Senior Discount Notes" means the Company's $735,000,000
121/2% Senior Discount Notes due 2009 issued pursuant to the Indenture.
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"Senior Notes" means the Company's $800,000,000 107/8% Senior
Notes due 2009 and its (U)300,000,000 107/8% Senior Notes due 2009 to be issued
under a Senior Notes Indenture, dated as of July 30, 1999.
"Shelf Registration Statement" means the Shelf Registration
State ment as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 3.7.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
"Special Character Asset Sale" means any Asset Sale solely
consisting of assets and property or interests therein comprising its interests
in chello broad band, UPC tv or Priority Telecom determined by the Company in
its good faith reasonable judgment.
"Stated Maturity," when used with respect to any Security or
any installment of interest on such Securities, means the date specified in the
Security as the fixed date on which any principal amount of the Security or the
installment of interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company
that is subordinated in right of payment by its terms or the terms of any
document or instrument relating thereto to the Securities, in any respect or
when used in the definitions of Restricted Payment or Qualified Exchange has a
final stated maturity on (except for the Securities) or after the Stated
Maturity.
"Subsidiary," with respect to any Person, means (1) a
Corporation a majority of whose Equity Interests with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by such Person and one or more Subsidiaries of
such Person or by one or more Subsidiaries of such Person, (2) any other Person
(other than a Corporation) in which such Person, one or more Subsidiaries of
such Person, or such Person and one or more Subsidiar ies of such Person,
directly or indirectly, at the date of determination thereof has majority
ownership interest, or (3) a partnership in which such Person or a Subsidiary of
such Person is, at the time, a general partner and in which such Person,
directly or indirectly, at the date of determination thereof has a majority
ownership interest. Notwithstanding the foregoing, an Unrestricted Subsidiary
shall not be a Subsidiary
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of the Company or of any Subsidiary of the Company. Unless the context requires
otherwise, Subsidiary means each direct and indirect Subsidiary of the Company.
"Supervisory Board" means, with respect to any Person, the
supervi sory board of directors of such Person or any committee of the
supervisory board of directors of such Person authorized, with respect to any
particular matter, to exercise the power of the supervisory board of directors
of such Person.
"Tax" or "Taxes" means any and all present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, and all
liabilities with respect thereto, together with any penalties, interest, or
additions thereto.
"Tax Event" means that as a result of any change in or
amendment to the laws, treaties or regulations of any Taxing Authority (or any
official or adminis trative pronouncement or action or judicial decision)
interpreting or applying such laws, treaties or regulations where such change or
amendment is proposed and becomes effective on or after the Issue Date, in
making any payment due or to become due under the Securities, the Company is or
would be required on the next succeeding payment date to pay Additional Amounts
and the payment of such Additional Amounts cannot be avoided by the use of any
reasonable measures available to the Company.
"Taxing Authority" means any nation or government or any
political subdivision thereof or any agency or instrumentality therein and any
entity exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 9.5.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Global Security" has the meaning set forth in
Section 3.3(d).
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"Unrestricted Securities" means an Unrestricted Global
Security and all other Securities that are not Restricted Securities, including
Exchange Securities.
"Unrestricted Subsidiary" means any subsidiary of the Company
that does not own any Equity Interest of, or own or hold any Lien on any
property of, the Company or any other Subsidiary of the Company and that, at the
time of determina tion, shall be an Unrestricted Subsidiary (as designated by
the Supervisory Board of the Company); provided that such Subsidiary at the time
of such designation (a) has no Indebtedness other than Non-Recourse
Indebtedness; (b) is not party to any agreement, contract, arrangement or
understanding with the Company or any Subsidiary of the Company, unless the
terms of any such agreement, contract, arrangement or understanding are no less
favorable to the Company or such Subsid iary than those that might be obtained
at the time from Persons who are not Affiliates of the Company; (c) is a Person
with respect to which neither the Company nor any of its Subsidiaries has any
direct or indirect obligation (x) to subscribe for additional Equity Interests
or (y) to maintain or preserve such Person's financial condition or to cause
such Person to achieve any specified levels of operating results; and (d) has
not guaranteed or otherwise directly or indirectly provided credit support for
any Indebt edness of the Company or any of its Subsidiaries. The Supervisory
Board of the Company may designate any Unrestricted Subsidiary to be a
Subsidiary, provided that (1) no Default or Event of Default is existing or will
occur as a consequence thereof and (2) immediately after giving effect to such
designation, on a pro forma basis, the Company could incur at least $1.00 (or
its foreign currency equivalent) of Indebtedness pursuant to the Debt Incurrence
Ratio of Section 10.11. Each such designation shall be evidenced by filing with
the Trustee a certified copy of the resolution giving effect to such designation
and an Officer's Certificate certifying that such designation complied with the
foregoing conditions.
"U.S. Government Obligations" means direct non-callable
obligations of, or noncallable obligations guaranteed by, the United States of
America for the payment of which obligation or guarantee the full faith and
credit of the United States of America is pledged.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president."
"Wholly Owned Subsidiary" means a Subsidiary all the Equity
Interests of which (other than directors' qualifying shares) are owned by the
Company or one or more Wholly Owned Subsidiaries of the Company.
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SECTION 1.2 Compliance Certificates and Opinions. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture (including any covenant compliance with which constitutes
a condition precedent) relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 10.9(a)) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement as to whether, in the opinion of each such
individ ual, such condition or covenant has been complied with.
SECTION 1.3 Form of Documents Delivered to Trustee. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
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Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon a certificate or opinion of,
or representa tions by, counsel, unless such officer knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or Opinion of Counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company stating
that the information with respect to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable care
should know, that the certificate or opinion or representations with respect to
such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instru ments under this Indenture, they may, but need not, be Consolidated
(with proper identification of each matter covered therein) and form one
instrument.
SECTION 1.4 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instru ments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 6.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or
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affidavit shall also constitute sufficient proof of authority. The fact and date
of the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner that the
Trustee deems sufficient.
(c) The principal amount at maturity and serial numbers of
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) If the Company shall solicit from the Holders of
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 1.5 Notices. Any notice or communication shall be
sufficiently given if in writing and delivered in person, by facsimile and
confirmed by overnight courier, or mailed by first-class mail addressed as
follows:
if to the Company:
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United Pan-Europe Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel and Treasurer
Facsimile: 31 20 778 9841
Telephone: 31 20 778 9840
with a copy to:
Holme, Roberts & Owen LLP
Heathcoat House
20 Savile Row
London W1X 1AE
England
Attention: Paul G. Thompson
Facsimile: 44 171 287 9344
Telephone: 44 171 494 5600
if to the Trustee or Paying Agent:
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency and Trust Services
Facsimile: 44 171 508 3879
Telephone: 44 171 508 3815
if to the Luxembourg Paying and Transfer Agent:
Banque International a Luxembourg
69 route d'Esch
Luxembourg L-2953
c/o the Trustee
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The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given only
when received, if a notice or communication is mailed in the manner provided
above, it is duly given, whether or not the addressee receives it.
SECTION 1.6 Notice to Holders; Waiver. Where this Indenture
provides for notice of any event to Holders by the Company or the Trustee, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at the address of such Holder as it appears in the Security
Register, not later than the latest date, and not earlier than the earliest
date, prescribed for the giving of such notice. As long as the Securities are
listed on the Luxembourg Stock Exchange and notice is required by the rules of
the Luxembourg Stock Exchange, such notice shall be sufficiently given by
publication of such notice to Holders of the Securities in English will be in a
leading newspaper having general circulation in Luxembourg (which is expected to
be the Luxembourg Wort) or, if such publication is not practicable, in one other
leading English language daily newspaper with general circulation in Europe,
such newspaper being published on each business day in morning editions, whether
or not it shall be published in Saturday, Sunday or holiday editions. In any
case where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the sufficiency of such notice with respect to other Holders. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice. Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
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In case by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders when such notice is required to be given
pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a
sufficient giving of such notice for every purpose hereunder.
SECTION 1.7 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns. All covenants and agree
ments in this Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture
or in the Securities, express or implied, shall give to any Person, other than
the parties hereto, any Paying Agent, any Security Registrar and their
successors hereunder and the Holders any legal or equitable right, remedy or
claim under this Indenture.
SECTION 1.11 Governing Law. This Indenture and the Securities
shall be governed by and construed in accordance with the law of the State of
New York including without limitation Section 5-1401 and 5-1402 of the New York
General Obligation Law and New York Civil Practice Laws and Rules 327(b), as
applied to contracts made and performed within the State of New York, without
regard to conflicts of law. The Company hereby irrevocably submits to the
jurisdic tion of any New York State court sitting in the borough of Manhattan in
the city of New York or any federal court sitting in the borough of Manhattan in
the city of New York in respect of any suit, action or proceeding arising out of
or relating to this Indenture and the Securities, and irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
jurisdiction of the aforesaid courts. The Company irrevocably waives, to the
fullest extent they may effectively do so under applicable law, trial by jury
and any objection which they may now or hereafter have to the laying of the
venue of any such suit, action or proceeding bought in any such
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court and any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Nothing herein shall affect the
right of the Trustee or any Holder to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
the Company in any other jurisdiction.
SECTION 1.12 Conflict with Trust Indenture Act. Prior to the
issuance of the Exchange Securities or the effectiveness of the Shelf
Registration Statement, the Trust Indenture Act shall apply as a matter of
contract to this Inden ture for purposes of interpretation, construction and
defining the rights and obliga tions hereunder. Upon the issuance of the
Exchange Securities or the effectiveness of the Shelf Registration Statement,
this Indenture shall be subject to the provisions of the Trust Indenture Act
that are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions. If any provision hereof limits,
qualifies or conflicts with any provision of the Trust Indenture Act or another
provision which is required or deemed to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such provision or requirement of the
Trust Indenture Act shall control.
If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision shall be deemed to apply to this Indenture as so modified or
excluded, as the case may be.
SECTION 1.13 Legal Holidays. In any case where any Interest
Payment Date, Redemption Date, or Stated Maturity or Maturity of any Security
shall not be a Business Day at a place of payment, then (notwithstanding any
other provision of this Indenture or of the Securities) payment of principal of
(or premium, if any) or interest need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made on
the Interest Payment Date or Redemption Date or at the Stated Maturity or
Maturity; provided that no interest shall accrue solely by virtue of such delay
for the period from and after such Interest Payment Date, Redemption Date,
Stated Maturity or Maturity, as the case may be.
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders. No board member, director, officer, employee, agent,
authorized representative, incorporator or shareholder of the Company, as such,
shall have any liability for any obligations of the Company under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of,
such obligations
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or their creation, solely by reason of its status as a board member, director,
officer, employee, agent, authorized representative, incorporator or shareholder
of the Company. By accepting a Security, the Trustee on behalf of each Holder
waives and releases all such liability (but only such liability). The waiver and
release are part of the consideration for issuance of the Securities.
SECTION 1.15 Independence of Covenants. All covenants and
agreements in this Indenture shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or be otherwise within the
limitations of, another covenant shall not avoid the occurrence of a Default if
such action is taken or condition exists.
SECTION 1.16 Exhibits. All exhibits attached hereto are by
this reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 1.17 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 1.18 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 1.19 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities. By the execution and delivery of this Indenture, the Com
pany (i) acknowledges that it has, by separate written instruments, designated
and appointed CT Corporation System, 1633 Broadway, New York, NY 10019 ("CT
Corporation System") (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Indenture that may be instituted in any federal or state court in the
Borough of Manhattan, City of New York, State of New York or brought under
federal or state securities laws, and represent and warrant that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation System and written notice of said service to the
Company, in accordance with Section 1.5 shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation
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System in full force and effect for as long as any of the Securities remain
Outstand ing (subject to the limitation set forth in clause (i)); provided,
however, that the Company may, and to the extent CT Corporation System ceases to
be able to be served on the basis contemplated herein shall, by written notice
to the Trustee, designate such additional or alternative agent for service of
process under this Section 1.19 that (i) maintains an office located in the
Borough of Manhattan City of New York, State of New York, and (ii) is either (x)
United States counsel for the Company or (y) a corporate service company which
acts as agent for service of process for other persons in the ordinary course of
its business. Such written notice shall identify the name of such agent for
service of process and the address of the office of such agent for service of
process in the Borough of Manhattan, City of New York, State of New York.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court of (i) any jurisdiction in which the
Company owns or leases property or assets, (ii) the United States or the State
of New York or (iii) the Netherlands or from any legal process (whether through
service of notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property and assets or
this Agreement or any of the Notes or actions to enforce judgments in respect of
any thereof, the Company hereby irrevoca bly waives such immunity in respect of
its obligations under the above-referenced documents, to the extent permitted by
law.
SECTION 1.20 Judgment Currency. The Company hereby agrees to
indemnify the Trustee, its directors, its officers and each person, if any, who
controls the Trustee within the meaning of Section 15 of the Act or Section 20
of the Ex change Act against any loss incurred by such person as a result of any
judgment or order being given or made against the Company for any U.S. Dollar
amount due under this Agreement and such judgment or order being expressed and
paid in a currency (the "Judgment Currency") other than United States Dollars
and as a result of any variation as between (i) the rate of exchange at which
the United States Dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in The City
of New York at which such party on the date of payment of such judgment or order
is able to purchase United States Dollars with the amount of the Judgment
Currency actually received by such party. The foregoing indemnity shall continue
in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "spot rate of exchange" shall include any premiums and costs
of exchange payable in connection with the purchase of, or conversion into,
United States Dollars.
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ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Securities and the Trustee's
certificate of authentication with respect thereto shall be in substantially the
form set forth in Exhibit A hereto, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorse ments placed thereon as may be required to comply
with the rules of any securities exchange or system on which the Securities may
be listed or eligible for trading or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. Any portion of the text of any Security may be set
forth on the reverse thereof, with an appropriate reference thereto on the face
of the Security.
The Certificated Securities shall be printed, lithographed or
engraved on steel-engraved borders or may be produced in any other manner
permitted by the rules of any securities exchange or system on which the
Securities may be listed or eligible for trading, all as determined by the
managing directors, officers and authorized representatives of the Company
executing such Securities, as evidenced by their execution of such Securities.
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms. The aggregate principal amount at
maturity of Securities which may be authenticated and delivered under this
Indenture is initially limited to $735,000,000, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6,
10.10, 10.16 or 11.8.
The Initial Securities shall be known and designated as the
"$735,000,000 12 1/2% Senior Discount Notes Due 2009" and the Exchange
Securities shall be known as the "$735,000,000 12 1/2% Series B Senior Discount
Notes". The final Stated Maturity of the Securities shall be August 1, 2009. The
Accreted Value of the Securities will accrete at a rate of 12 1/2% per annum,
until they reach their principal amount at maturity on August 1, 2004. Interest
on the Securities will be
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payable semiannually in arrears on February 1 and August 1 of each year, commenc
ing February 1, 2005, to the Holders of record on the immediately preceding
Regular Record Date.
Principal of, premium, if any, and interest on the Securities
will be payable, and the Securities may be exchanged or transferred, at the
office or agency of the Company in The City of New York and in London, which,
unless otherwise provided by the Company, will be the offices of the Trustee. At
the option of the Company, interest may be paid by check mailed to addresses of
the Persons entitled thereto as such addresses shall appear on the Security
Register.
The Securities shall be redeemable as provided in Article
Eleven.
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Twelve.
The Securities will be general, senior, unsecured obligations
of the Company, ranking pari passu in right of payment with each other.
SECTION 3.2 Denominations. The Securities (including any
Global Security) shall be issuable only in registered form without coupons and
only in denominations of US$1,000 principal amount at maturity or any integral
multiple of US$1,000 principal amount at maturity above such amount. The
Securities shall not be issuable in bearer form. No service charge shall be made
for any registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
(a) The Securities shall be executed on behalf of the Company
by its Chief Executive Officer, its President, a Vice President or a managing
director (being an executive officer of the Company with due authority granted
by the management board of the Company to execute Securities) of the Company.
The signature of any of these officers or directors on the Securities may be
manual or facsimile signatures of the present or any future such authorized
officer or director and may be imprinted or otherwise reproduced on the
Securities.
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Securities bearing the manual or facsimile signatures of
individuals who were at any time the proper officers or directors of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of such Securities. In
addition, any Security may be signed on behalf of the Company by such Persons
as, at the actual date of the execution of such Security, shall be the proper
officers or directors of the Company, although at the date of such Security or
of the execution of this Indenture any such Person was not such officer or
director.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
On the Issue Date the Trustee shall authenticate Initial
Securities for original issue in the aggregate principal amount at maturity not
to exceed $735,000,000, upon a written order of the Company in the form of an
Officer's Certificate. Such order shall specify the amount of the Initial
Securities to be authenticated and the date on which the original issue of
Initial Securities is to be authenticated. In addition, the Trustee shall
authenticate Exchange Securities for original issue in the aggregate principal
amount at maturity of up to $735,000,000 upon a written order of the Company in
the form of an Officer's Certificate, provided that such Exchange Securities
shall be issuable only upon the valid surrender for cancellation of Initial
Securities of a like aggregate principal amount at maturity in accordance with
the Registration Rights Agreement. The Officer's Certificate shall specify the
amount of Exchange Securities to be authenticated and the date on which the
Exchange Securities are to be authenticated. Upon the written order of the
Company in the form of an Officer's Certificate, the Trustee shall authenticate
Securities in substitution of Securities originally issued to reflect any name
change of the Company.
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(b) The terms and provisions contained in the form of
Securities shall constitute, and are hereby expressly made, a part of this
Indenture and, to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby.
(c) Restricted Global Securities. (i) The Initial Securities
offered and sold in reliance on Rule 144A shall be issued in the form of one or
more global securities (the "Restricted Global Security") in definitive, fully
registered form without interest coupons, with such applicable legends as are
provided for in Exhibit A hereto, except as otherwise permitted herein.
(ii) Each Restricted Global Security shall be regis
tered in the name of DTC or its nominee and deposited with the Trustee,
at its Corporate Trust Office, as custodian for DTC, duly executed by
the Company and authenticated by the Trustee as herein after provided.
The aggregate principal amount at maturity of a Restricted Global
Security may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC, in connection
with a corresponding decrease or increase in the aggregate principal
amount at maturity of a Security that is a Regulation S Global Security
(as defined below) or a Security that is an Unrestricted Global
Security (as defined below), as hereinaf ter provided.
(d) Regulation S Global Securities. (i) Initial Securities
offered and sold in reliance on Regulation S shall be initially issued in the
form of one or more Global Securities in definitive, fully registered form
without interest coupons, with such applicable legends as are provided for in
Exhibit A hereto, except as otherwise permitted herein. Until such time as the
Restricted Period shall have terminated, such Global Securities shall be
referred to herein as the "Regulation S Global Security." After such time as the
Restricted Period shall have terminated, such Regulation S Global Securities
shall be referred to herein, as the "Unrestricted Global Securities."
(ii) Each Regulation S Global Security and Unre
stricted Global Security shall be registered in the name of DTC or its
nominee and deposited with the Trustee, at its Corporate Trust Office,
as custodian for DTC, duly executed by the Company and authenti cated
by the Trustee as hereinafter provided, for credit to the respec tive
accounts at DTC of the depositaries for Euroclear or Cedelbank. The
aggregate principal amount at maturity of each Regulation S Global
Security (or Unrestricted Global Security) may from time to time be
increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC, in connection with a corresponding
decrease or increase in the aggregate principal amount at maturity of a
Restricted Global Security, as hereinafter provided.
(e) The Exchange Securities which are issued in exchange for
Initial Securities shall be issued initially in the form of one or more
permanent Global Securities in definitive, fully registered form without
interest coupons, substantially in the form set forth in Exhibit A, deposited
with the Trustee, as custodian for DTC, and shall bear the applicable legends
relating to Global Securities set forth in Exhibit A that are required to appear
on such Securities. Exchange Securities shall constitute Unrestricted
Securities.
(f) In case the Company, pursuant to Article Eight, shall be
Consolidated or merged with or into any other Person or shall convey, transfer,
lease or otherwise dispose of its properties and assets substantially as an
entirety to any Person, and the successor Person resulting from such
consolidation, or surviving such merger, or into which the Company shall have
been merged, or the Person which shall have received a conveyance, transfer,
lease or other disposition as aforesaid, shall have executed an indenture
supplemental hereto with the Trustee pursuant to Article Eight, any of the
Securities authenticated or delivered prior to such consolidation, merger,
conveyance, transfer, lease or other disposition may, from time to time, at the
request of the successor Person, be exchanged for other Securities executed in
the name of the successor Person with such changes in phraseology and form as
may be appropriate, but otherwise in substance of like tenor as the Securities
surrendered for such exchange and of like principal amount at maturity; and the
Trustee, upon Company Request of the successor Person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities shall at any time be authenticated and delivered in any
new name of a successor Person pursuant to this Section in exchange or
substitution for or upon registration of transfer of any Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
SECTION 3.4 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
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Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclu sively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 10.2, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securi ties, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount at maturity of definitive Securities of authorized
denominations. Until so exchanged, the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 3.5 Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 10.2 being herein sometimes
referred to as the "Security Register") in which, subject to such reasonable
regulations as it may prescribe, the Company shall provide for the registration
of Securities and of transfers and exchange of Securities. The Security Register
shall be in written form or any other form capable of being converted into
written form within a reasonable time. At all reasonable times, the Security
Register shall be open to inspection by the Trustee. The Trustee is hereby
initially appointed as security registrar (the "Security Registrar") for the
purpose of registering Securities and transfers and exchanges of Securities as
herein provided.
Upon surrender for registration of transfer of any Security at
the office or agency of the Company designated pursuant to Section 10.2, the
Company shall execute, the Trustee shall authenticate and deliver, and the
Security Registrar shall register, if the requirements, of such transfer are
met, in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations of a like aggregate
principal amount at maturity.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination and of a like aggregate
principal amount
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at maturity (including an exchange of Initial Securities for Exchange
Securities), upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, the Trustee shall authenticate and deliver, and the Security
Registrar shall register, the Securities which the Holder making the exchange is
entitled to receive, provided that no exchange of Initial Securities for
Exchange Securities shall occur until an Ex change Offer Registration Statement
shall have been declared effective by the SEC (confirmed in an Officer's
Certificate) and that the Initial Securities to be exchanged for the Exchange
Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and entitled to the same benefits under this Indenture,
as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer, in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange or redemption of Securities, but the Company may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 9.6, 10.10, 10.16 or
11.8 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening of
business 15 days before the selection of Securities to be redeemed under Section
11.4 and ending at the close of business on the day of such mailing of the
relevant notice of redemp tion or (ii) to register the transfer of or exchange
any Security so selected for redemp tion in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If (i) any mutilated Security is surrendered to the Trustee or (ii) the Company
and the Trustee receive evidence to their satisfaction of the destruction, loss
or theft of any Security, and there is delivered to the Company and the Trustee
such security or
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indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in exchange for any such
mutilated Security or in lieu of any such destroyed, lost or stolen Security, a
new Security of like tenor and principal amount at maturity, bearing a number
not contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not the
mutilated, destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section 3.6 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 10.2;
provided, however, that each installment of interest may at the Company's option
be paid (i) by mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 3.8, to the address of
such Person as it appears in the Security Register, or (ii) by wire transfer of
such interest in immediately available funds to an account located in the United
States maintained by the DTC.
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Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the Holder on the Regular Record Date by virtue
of having been such Holder, and such defaulted interest and (to the extent
lawful) interest on such defaulted interest at the rate borne by the Securities
(such defaulted interest and interest thereon herein collectively called
"Defaulted Interest") must be paid by the Company, at its election in each case,
as provided in paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their respective
Predecessor Securities) are registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Security and the date
of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date, and in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be given in the manner provided for in
Section 1.6, not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following paragraph(2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange or system on which the Securities may be listed or eligible for
trading, and upon such notice as may be required by such exchange or system, if,
after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by
the Trustee.
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Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners. Prior to the due present
ment of a Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal or Accreted Value of (and premium, if any) and
(subject to Sections 3.5 and 3.7) interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 3.9 Cancellation. All Securities surrendered for
payment, redemption, registration of transfer or exchange shall, if surrendered
to any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securi ties previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and may deliver to
the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Securities previously authen ticated hereunder which the
Company has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company shall so acquire any of the
Securities, however, such acquisition shall not operate as a redemption or
satisfaction of the Indebtedness represented by such Securities unless and until
the same are surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with its customary procedures and certification of their disposal delivered to
the Company unless by Company Order the Company shall direct that cancelled
Securities be returned to it.
SECTION 3.10 Computation of Interest. Interest on the
Securities shall be computed on the basis of a 360-day year comprised of twelve
30-day months.
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers. The Company in
issuing the Securities may use a "CUSIP" and/or "ISIN" number (if then generally
in use), and if so, the Trustee shall use "CUSIP" and/or "ISIN" numbers in
notices of
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redemption or exchange as a convenience to Holders; provided, however, that any
such notice may state that no representation is made as to the correctness or
accuracy of such numbers either as printed in the notice or on the Securities,
and that reliance may be placed only on the other identification numbers printed
on the Securities. The Company shall promptly notify the Trustee in writing of
any change in the "CUSIP" or "ISIN" numbers of the Securities.
SECTION 3.12 Book-Entry Provisions for Global Securities,
Certificated Securities.
Except as indicated below in this Section 3.12, the Securities
shall be represented only by Global Securities. The Global Securities shall be
deposited with a Depositary for such Securities (and shall be registered in the
name of such Deposi tary or its nominee). The Depositary for the Securities
shall be DTC unless the Company appoints a successor Depositary by delivery of a
Company Order to the Trustee specifying such successor Depositary.
All payments on a Global Security will be made to DTC or its
nominee, as the case may be, as the registered owner and Holder of such Global
Security. The Company will be fully discharged by payment to or to the order of
the Depositary from any responsibility or liability in respect of each amount so
paid. Upon receipt of any such payment in respect of a Global Security, DTC will
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount at maturity of such
Global Security as shown on the records of DTC
Unless and until it is exchanged in whole or in part for
Certificated Securities, a Global Security may not be transferred except as a
whole by the relevant Depositary or nominee thereof to another nominee of the
Depositary or to a succes sor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be
entitled or required, as the case may be, but only under the circumstances
described in this Section 3.12, to receive physical delivery of Certificated
Securities.
Interests in a Global Security shall be exchangeable or
transferable, as the case may be, for Certificated Securities if (i) DTC
notifies the Company that it is unwilling or unable to continue as Depositary
for such Global Security, or DTC ceases to be a "Clearing Agency" registered
under the United States Securities Exchange Act of 1934, and a successor
depositary is not appointed by the Company
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within one hundred and twenty (120) days, or (ii) an Event of Default has
occurred and is continuing with respect thereto and the owner of a beneficial
interest therein requests such exchange or transfer. Upon the occurrence of any
of the events described in the preceding sentence, the Company shall cause the
appropriate Certificated Securities to be delivered to the owners of beneficial
interests in the Global Securities or the Participants in DTC, Euroclear or
Cedelbank through which such owners hold their beneficial interest. Certificated
Securities shall be exchange able or transferable for interests in other
Certificated Securities as described herein.
SECTION 3.13 Transfer and Exchange of Securities.
(a) Obligations with Respect to Transfers and Exchanges of
Securities. Upon surrender for registration of transfer of any Security of a
series to the appropriate Registrar, and subject to the other provisions of this
Section 3.13, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of such series of any authorized denominations and of a like
aggregate principal amount at maturity.
At the option of the Holder, and subject to the other
provisions of this Section 3.13, Securities of any series may be exchanged for
other Securities of such series of any authorized denominations and of a like
aggregate principal amount at maturity, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, and subject to the other provisions of this Section 3.13, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company, evidencing
the same Indebtedness, and subject to the other provisions of this Section 3.13,
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registra tion of transfer or exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company, the Trustee or
the Common Depositary) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company or the appropriate
Registrar and be duly executed by the Holder thereof or his attorney duly
authorized in writing.
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No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or governmental charge payable in connection with
any registration of transfer or exchange of Securities.
(b) Transfer and Exchange of Global Securities.
Notwithstanding any provisions of this Indenture or the Securities, transfers of
a Global Security, in whole or in part, transfers and exchanges of interests
therein of the kinds described in clauses (ii), (iii) and (iv) below and
exchange of interests in Global Securities or of other Securities as described
in clause (v) below, shall be made only in accordance with this Section 3.13(b).
Transfers and exchanges subject to this Section 3.13 shall also be subject to
the other provisions of this Indenture that are not inconsistent with this
Section 3.13.
(i) General. A Global Security may not be trans
ferred, in whole or in part, to any Person other than DTC or a nominee
thereof or a successor to DTC or its nominee, and no such transfer to
any such other Person may be registered; provided that this clause (i)
shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No
transfer of a Security of any series to any Person shall be effective
under this Indenture or the Securities of such series unless and until
such Secu rity has been registered in the name of such Person. Nothing
in this Section 3.13(b)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 3.13(b).
(ii) Restricted Global Security to Regulation S
Global Security. If the Holder of a beneficial interest in a Restricted
Global Security of any series wishes at any time to transfer such
interest to a Person who wishes to take delivery thereof in the form of
a beneficial interest in a Regulation S Global Security of such series,
such transfer may be effected, subject to the rules and procedures of
DTC, Euroclear and Cedelbank, in each case to the extent applicable
(the "Applicable Procedures"), only in accordance with the provisions
of this Section 3.13(b)(ii). Upon receipt by the Registrar of (A)
written instructions given in accordance with the Applicable Proce
dures from an Agent Member directing the Registrar, to credit or cause
to be credited to a specified Agent Member's account a benefi cial
interest in a Regulation S Global Security in a principal amount at
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maturity equal to that of the beneficial interest in a Restricted
Global Security to be so transferred; (B) a written order given in
accordance with the Applicable Procedures containing information
regarding the account of the Agent Member to be credited with, and the
account of the Agent Member to be debited for, such beneficial
interest; and (C) a certificate in substantially the form set forth in
Exhibit B given by the Holder of such beneficial interest, the
principal amount at maturity of a Restricted Global Security shall be
reduced, and the principal amount at maturity of a Regulation S Global
Security shall be in creased, by the principal amount at maturity of
the beneficial interest in a Restricted Global Security to be so
transferred, in each case by means of an appropriate adjustment on the
records of the Registrar, and the Registrar shall instruct DTC or its
authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of the
Person specified in such instruc tions a beneficial interest in a
Regulation S Global Security having a principal amount at maturity
equal to the amount so transferred.
(iii) Restricted Global Security to Unrestricted
Global Security. If the Holder of a beneficial interest in a Restricted
Global Security of any series wishes at any time to transfer such
interest to a Person who wishes to take delivery thereof in the form of
a beneficial interest in an Unrestricted Global Security of such
series, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.13(b)(iii). Upon
receipt by the Registrar, of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Registrar to credit or cause to be credited to a
specified Agent Member's ac count a beneficial interest in an
Unrestricted Global Security in a principal amount at maturity equal to
that of the beneficial interest in a Restricted Global Security to be
so transferred, (B) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Agent Member to be credited with, and the account of the Agent
Member to be debited for, such beneficial interest, and (C) a
certificate in substantially the form set forth in Exhibit C given by
the Holder of such beneficial interest, the principal amount at
maturity of the Restricted Global Security shall be reduced, and the
principal amount at maturity of an Unrestricted Global Security shall
be increased, by the principal amount at matu rity of the beneficial
interest in a Restricted Global Security to be so
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transferred, in each case by means of an appropriate adjustment on the
records of the Registrar and the Registrar shall instruct DTC or its
authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in an Unre
stricted Global Security having a principal amount equal to the amount
at maturity so transferred.
(iv) Regulation S Global Security or Unrestricted
Global Security to Restricted Global Security. If the Holder of a
beneficial interest in a Regulation S Global Security of any series or
an Unrestricted Global Security of any series wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof
in the form of a beneficial interest in a Restricted Global Security of
such series, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.13(b)(iv). Upon
receipt by the Registrar of (A) written instructions given in accor
dance with the Applicable Procedures from an Agent Member direct ing
the Registrar to credit or cause to be credited to a specified Agent
Member's account a beneficial interest in a Restricted Global Security
in a principal amount at maturity equal to that of the beneficial inter
est in a Regulation S Global Security or an Unrestricted Dollar De
nominated Global Security to be so transferred, (B) a written order
given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member to be credited
with, and the account of the Agent Member to be debited for, such
beneficial interest, and (C) with respect to a transfer of a beneficial
interest in a Regulation S Global Security (but not an Unrestricted
Global Security) to a Person whom the transferor reasonably believes is
a QIB, a certificate in substantially the form set forth in Exhibit D
given by the Holder of such beneficial interest, the principal amount
at maturity of a Restricted Global Security shall be increased, and the
principal amount at maturity of a Regulation S Global Security or an
Unrestricted Global Security shall be reduced, by the principal amount
at maturity of the beneficial interest in a Restricted Global Security
to be so transferred, in each case by means of an appropriate
adjustment on the records of the Registrar and the Registrar shall
instruct DTC or its authorized representative to make a corresponding
adjustment to its records and to credit or cause to be credited to the
account of the Person specified in such instructions a beneficial
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interest in the Restricted Global Security having a principal amount at
maturity equal to the amount so transferred.
(v) Exchanges of Global Security for Non-Global
Security. In the event that a Global Security or any portion thereof is
exchanged for Securities other than Global Securities, such other
Securities may in turn be exchanged (on transfer or otherwise) for
Securities that are not Global Securities or for beneficial interests
in a Global Security (if any is then Outstanding) only in accordance
with such procedures, which shall be substantially consistent with the
provisions of clauses (i) through (iv) above and (vi) below (including
the certification requirements intended to insure that transfers and
exchanges of beneficial interests in a Global Security comply with Rule
144A, Rule 144 or Regulation S, as the case may be) and any Applicable
Procedures, as may be from time to time adopted by the Company and the
Trustee.
(vi)Interest in Regulation S Global Security to be Held
Through Euroclear or Cedelbank. Until the termination of the Restricted Period
with respect thereto, interests in a Regulation S Global Security may be held
only through Agent Members acting for and on behalf of Euroclear and Cedelbank,
provided that this clause (vi) shall not prohibit any transfer in accordance
with Section 3.13(b)(iv) hereof.
(c) Legends. Each Restricted Security and Global Security
issued hereunder shall, upon issuance, bear the legends set forth in Exhibit A
hereto that are required to be applied to such a Security and such required
legends shall not be removed from such Security except as provided in the next
sentence or Section 3.13(e). The legend required for a Restricted Security may
be removed from a Security if there is delivered to the Company and the
appropriate Registrar such satisfactory evidence, which may include an opinion
of independent counsel licensed to practice law in the State of New York, as may
be reasonably required by the Company that neither such legend nor the
restrictions on transfer set forth therein are required to ensure that transfers
of such Security will not violate the registration requirements of the
Securities Act. Upon provision of such satisfactory evidence, the Trustee, at
the direction of the Company, shall authenticate and deliver in exchange for
such Security another security or securities having an equal aggregate principal
amount at maturity that does not bear such legend. If such a legend required for
a Restricted Security has been removed from a Security as provided above, it
shall not be a Restricted Security and no other Security issued in exchange for
all or any part
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of such Security shall bear such legend, unless the Company has reasonable cause
to believe that such other security is a "restricted security" within the
meaning of Rule 144 and instructs the Trustee in writing to cause a legend to
appear thereon.
(d) Global Securities. The provisions of clauses (i),
(ii), (iii), and (iv) below shall apply only to Global Securities;
(i) General. Each Global Security authenticated under
this Indenture shall be registered in the name of the appropriate
Depositary or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor.
(ii) Transfer to Persons other than Depositary.
Notwithstanding any other provision in this Indenture or the Securi
ties, no Global Security may be exchanged in whole or in part for
Securities registered, and no transfer of a Global Security in whole or
in part may be registered, in the name of any person other than the
appropriate Depositary or a nominee thereof unless (A) DTC notifies the
Company that it is unwilling or unable to continue as Depositary for
such Global Security, or DTC ceases to be a "Clearing Agency"
registered under the United States Securities Exchange Act of 1934, and
a successor depositary is not appointed by the Company within one
hundred and twenty (120) days, or (B) an Event of Default has occurred
and is continuing with respect thereto and the owner of a beneficial
interest therein requests such exchange or transfer. Any Global
Security exchanged pursuant to clause (A) above shall be so exchanged
in whole and not in part and any Global Security ex changed pursuant to
clause (B) above may be exchanged in whole or from time to time in part
as directed by DTC. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security, provided
that any such Security so issued that is registered in the name of a
Person other than the appropriate Deposi tary or a nominee thereof
shall not be a Global Security.
(iii) Global Security to Certificated Security.
Securities issued in exchange for a Global Security or any portion
thereof pursuant to clause (ii) above shall be issued in definitive,
fully registered form without interest coupons, shall have an aggregate
principal amount at maturity equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names
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and be in such authorized denominations as the appropriate Deposi tary
shall designate and shall bear any legends required hereunder. Any
Global Security to be exchanged in whole shall be surrendered by the
appropriate Depositary to the Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or if the Trustee is acting as
custodian for DTC or its nominee with respect to such Global Security,
the principal amount at maturity thereof shall be reduced, by an amount
equal to the portion thereof to be so ex changed, by means of an
appropriate adjustment made on the records of the Trustee, as
Authenticating Agent. Upon any such surrender or adjustment, the
Trustee shall authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an authorized
representative thereof.
(iv) In the event of the occurrence of any of the
events specified in clause (ii) above, the Company will promptly make
available to the Trustee a supply of Certificated Securities in
definitive, fully registered form, without interest coupons, sufficient
to meet the Trustee's requirements hereunder.
(v) No Rights of Agent Members in Global Secu rity.
No Agent Member of any Depositary nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture with
respect to any Global Security, or under any Global Security, and each
Depositary or its nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent
the Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certifi cation, proxy or other
authorization furnished by the applicable Depositary or such nominee,
as the case may be, or impair, as be tween DTC, Euroclear and
Cedelbank, their respective Agent Mem bers and any other person on
whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
Holder of any Security.
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SECTION 3.14 Special Transfer Provisions.
(a) Transfers to Institutional Accredited Investors. If
Securities are being transferred to an Institutional Accredited Investor, the
Securities shall be accompanied by delivery of a transferee certificate for
Institutional Accredited Investors substantially in the form of Exhibit G hereto
and an opinion of counsel reasonably satisfactory to the Company to the effect
that such transfer is in compli ance with the Securities Act.
(b) Other Transfers. If a Holder proposes to transfer a
Security pursuant to any exemption from the registration requirements of the
Securities Act other than as provided for above, the Security Registrar shall
only register such transfer or exchange if such transferor delivers to the
Security Registrar and the Trustee an Opinion of Counsel satisfactory to the
Company and the Security Regis trar that such transfer is in compliance with the
Securities Act and the terms of this Indenture; provided that the Company may,
based upon the opinion of its counsel, instruct the Security Registrar by a
Company Order not to register such transfer in any case where the proposed
transferee is not a QIB, an Institutional Accredited Investor or a non-U.S.
Person.
(c) General. By its acceptance of any Security bearing
Legends, each Holder of such a Security acknowledges the restrictions on
transfer of such Security set forth in this Indenture and in the Legends and
agrees that it will transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters,
notices and other written communications received pursuant to Section 3.12 or
this Section 3.14 for a period of two years, after which time such letters,
notices and other written communications shall at the written request of the
Company be delivered to the Company. The Company shall have the right to inspect
and make copies of all such letters, notices or other written communications at
any reasonable time upon the giving of reasonable prior written notice to the
Security Registrar.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This
Inden ture shall upon Company Request cease to be of further effect (except as
to surviving
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rights of registration of transfer or exchange of Securities expressly provided
for herein or pursuant hereto) and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Inden ture when
(1) either
(a) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.6 and
(ii) Securities for whose payment money has theretofore been deposited
in trust with the Trustee or any Paying Agent or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged
from such trust as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(b) (i) all such Securities not theretofore delivered to the
Trustee for cancellation have become due and payable, or (ii) the
Company has given irrevocable and unconditional notice of redemption
for all of the Outstanding Securities within 60 days of such notice
pursuant to the redemption provi sions of this Indenture,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such pur pose an amount sufficient to pay and discharge the
entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal (and premium, if any) and
accrued interest (and Liquidated Dam ages, if any,) to the date of such
deposit;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the
Trustee to apply the deposited money toward the payment of the Securities at
Maturity or the Redemption Date, as the case may be, which must be within 60
days thereof;
(4) the Holders of the Securities have a valid, perfected,
exclusive security interest in such trust; and
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(5) the Company has delivered to the Trustee an Officers'
Certifi cate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 6.7 and,
if money shall have been deposited with the Trustee pursuant to clause(1)(b) of
this Section 4.1, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default. "Event of Default," wherever
used herein, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest (or Liquidated
Damages, if any) on any Security when it becomes due and payable, and
continuance of such default for a period of 30 days;
(2) default in the payment of the principal of, Accreted Value
of or premium, if any, on any Security as and when the same becomes payable at
its Maturity, or upon redemption, by acceleration or otherwise, including,
without
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limitation, payment of the Change of Control Purchase Price or the Asset Sale
Offer Price, or otherwise on Securities validly tendered and not properly
withdrawn pursuant to a Change of Control Offer or Asset Sale Offer, as
applicable; or
(3) failure to perform any other covenant or agreement of the
Company under this Indenture or Securities and, except for the provisions under
Section 10.10, 10.16, Article Eight and Section 10.12, continued for 30 days
after written notice to the Company by the Trustee or to the Company and the
Trustee by Holders of at least 25% in aggregate principal amount at maturity of
the Outstanding Securities;
(4) a default in Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount Outstanding in excess of $50,000,000 (or
its foreign currency equivalent) (a) resulting from the failure to pay principal
at maturity or otherwise at the end of any applicable grace period for such
payment pursuant to the original terms of such Indebtedness or (b) as a result
of which the maturity of such Indebtedness has been accelerated prior to its
stated maturity; or
(5) the rendering of a final judgment or final judgments not
covered by insurance in an amount in excess of $50,000,000 (or its foreign
currency equivalent) at any one time against the Company or any of its
Subsidiaries by a court or courts of competent jurisdiction, which judgment or
judgments remain unbonded, undischarged or unstayed for a period of 60 days
after the date on which the right to appeal all such judgments has expired; or
(6) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Company or any Significant Subsidiary
a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrange ment, adjustment or composition of or in respect of the
Company or any Significant Subsidiary or any other applicable federal, state or
foreign law, or appointing a receiver, liquidator, assignee, trustee or
sequestrator (or other similar official) of the Company or any Significant
Subsidiary or of any substantial part of its property, or ordering the winding
up or liquidation of its affairs, and the continuance of any such decree or
order unstayed and in effect for a period of 60 consecutive days; or
(7) the institution by the Company or any Significant
Subsidiary of proceedings to be adjudicated a bankrupt or insolvent, or the
consent by it to the institution of bankruptcy or insolvency proceedings against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under the U.S. Federal Bankruptcy Code or any other
applicable federal, state or foreign law, or the consent
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by it to the filing of any such petition or to the appointment of a receiver,
liquidator, assignee, trustee or sequestrator (or other similar official) of the
Company or any Significant Subsidiary or of any substantial part of its
property, or the making by it of an assignment for the benefit of creditors, or
the admission by it in writing of its inability to pay its Indebtedness
generally as they become due.
SECTION 5.2 Acceleration of Maturity; Rescission and
Annulment. If an Event of Default (other than an Event of Default specified in
Section 5.1(6) or 5.1 (7) relating to the Company) occurs and is continuing,
then and in every such case the Trustee or the Holders of not less than 25% in
principal amount at maturity of the Outstanding Securities may declare the
Accreted Value and accrued interest (and Liquidated Damages, if any) of all the
Securities to be due and payable immedi ately by a notice in writing to the
Company (and to the Trustee if given by Holders) (an "Acceleration Notice"), and
upon any such declaration such Accreted Value, accrued interest (and Liquidated
Damages, if any) shall become immediately due and payable. If an Event of
Default specified in Section 5.1(6) or 5.1(7) relating to the Company occurs and
is continuing, then the Accreted Value and accrued interest (and Liquidated
Damages, if any) of all the Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
At any time after a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount at maturity of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its conse quences if
(1) the Company has paid or deposited with the Trustee a
sum sufficient to pay
(A) all overdue interest on all Outstanding Securities,
(B) all unpaid Accreted Value of (and premium, if any, on) any Outstanding
Securities which has become due otherwise than by such declara tion of
acceleration, and interest on such unpaid Accreted Value at the rate
borne by the Securities,
(C) to the extent that payment of such interest is lawful, interest on
overdue interest at the rate borne by the Securities, and
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(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all existing Events of Default, other than the non-payment
of amounts of Accreted Value, (or premium, if any,) and interest on the
Securities which have become due solely by such declaration of acceleration, and
except a Default with respect to any provision requiring a supermajority
approval to amend, which Default may only be waived by such a supermajority,
have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if
(a) default is made in the payment of any installment of
interest on any Security when such interest becomes due and payable and such
default continues for a period of 30 days, or
(b) default is made in the payment of the Accreted Value of
(or premium, if any, on) any Security at the Maturity thereof, the Company will,
upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of
such Securities the whole amount then due and payable on such Securities for
Accreted Value (and premium, if any) and interest, and interest on any overdue
Accreted Value (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, ex penses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, may prosecute such proceeding to judgment or final decree and may
enforce the same against the Company or any other obligor upon the Securities
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon the
Securities, wherever situated.
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If an Event of Default occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights
of the Holders by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid of
the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.4 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue Accreted Value, premium, if any, or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
Accreted Value (and premium, if any) and interest (and Liquidated
Damages, if any) owing and unpaid in respect of the Securities and to
file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee and its agents and counsel) and of the Holders allowed in such
judicial proceeding, and
(ii) to collect and receive any moneys or other
property payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator or sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 5.5 Trustee May Enforce Claims Without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name and as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money
collected by the Trustee pursuant to this Article Five shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of Accreted Value (or premium, if any) or
interest, upon presenta tion of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
6.7;
SECOND: To the payment of the amounts then due and unpaid for Accreted
Value of (and premium, if any) and interest (and Liquidated Damages, if any) on
the Securities in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for Accreted Value (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 5.7 Limitation on Suits. No Holder of any Securities
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless
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(1) the Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount at maturity of the Outstanding Securities shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) the Trustee is indemnified and/or secured (whether by pay
ment in advance or otherwise) to its reasonable satisfaction;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a majority
or more in aggregate principal amount at maturity of the Outstanding Securities;
it being understood and intended that no one or more Holders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 5.8 Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute
and unconditional, to receive payment as provided herein (including, if
applicable, Article Twelve) and in such Security of the Accreted Value of (and
premium, if any) and (subject to Section 3.7) interest (and Liquidated Damages,
if any) on such Security on the respective Stated Maturities expressed in such
Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies. If the Trustee
or any Holder has instituted any proceeding to enforce any right or remedy under
this Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former
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positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated, de
stroyed, lost or stolen Securities in the last paragraph of Section 3.6, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder of any Security to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article Five or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12 Control by Holders. The Holders of not less than
a majority in aggregate principal amount at maturity of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceed ing for any remedy available to the Trustee, or
exercising any trust or power con ferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve
it in personal liability or be unjustly prejudicial to the Holders not
consenting unless it has received indemnity reasonably satisfactory to it.
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SECTION 5.13 Waiver of Past Defaults. The Holders of a
majority in aggregate principal amount at maturity of the Outstanding Securities
may on behalf of the Holders of all the Securities waive any past Default
hereunder and its consequences, except a Default
(1) in respect of the payment of the principal of, Accreted
Value of (or premium, if any), or interest (and Liquidated Damages, if any) on
any Secu rity, or
(2) in respect of a covenant or provision hereof which cannot
be modified or amended without the approval of a supermajority, which Default
may only be waived by such a supermajority; or
(3) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 5.14 Waiver of Stay or Extension Laws. The Company
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it shall not hinder, delay or impede the execution of any power herein
granted to the Trustee, but shall suffer and permit the execution of every such
power as though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and con forming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they reasonably conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own grossly negligent action, its own
grossly negligent failure to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit
the effect of paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of the requisite amount of the Outstanding Securities
relating to the time,
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method and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial liability in
the perfor mance of any of its duties hereunder, or in the exercise of any of
its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or indemnity reasonably satisfactory to it against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 6.1.
SECTION 6.2 Notice of Default. Within 60 days after being
notified or becoming aware of the occurrence of any Default hereunder, the
Trustee shall transmit, in the manner and to the extent provided in TIA Section
313(c), notice of such Default hereunder known to any Responsible Officer of the
Trustee, unless such Default shall have been cured or waived; provided, however,
that, except in the case of a Default in the payment of the Accreted Value of
(or premium, if any) or interest on any Security, the Trustee shall be protected
in withholding such notice if and so long as the board of directors, the
executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interest of the Holders.
SECTION 6.3 Certain Rights of Trustee. Subject to Section 6.1
and to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, deben ture, note, other evidence of Indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Supervisory Board of the Company may be sufficiently evidenced
by a Board Resolution;
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(3) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffer ing or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, receive and conclusively rely upon an Officers' Certificate and/or an
Opinion of Counsel;
(4) the Trustee may consult with counsel and other
professional advisers and the written advice of such counsel or advisers or any
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless the Trustee
is indemnified and/or secured (whether by payment in advance or otherwise) to
its reasonable satisfaction;
(6) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of Indebtedness or other paper or document, but
the Trustee, in its discre tion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney;
(7) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, nominees, custodians, delegates or attorneys and the Trustee shall not
be responsible for supervising the actions of such agent, nominee, custodian,
delegate or attorney, nor for any misconduct or negligence on the part of any
agent, nominee, custodian, delegate or attorney appointed with due care by it
hereunder;
(8) the Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture;
and
(9) the Trustee shall be entitled to assume that there has
been no Event of Default and that the Company has complied with all of its
obligations
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hereunder, unless a Responsible Officer of the Trustee has knowledge to the
contrary thereof.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereun der, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not assured to it.
SECTION 6.4 Trustee Not Responsible for Issuance of
Securities.
The Trustee makes no representations as to the validity or sufficiency
of this Indenture or of the Securities, except that the Trustee represents that
it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any Paying
Agent, any Security Registrar or any other agent of the Company or of the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Paying Agent, Security Registrar or such other agent.
SECTION 6.6 Money Held in Trust. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 6.7 Compensation and Reimbursement. The Company
agrees:
(1) to pay to the Trustee from time to time compensation for
all services rendered by it hereunder (which compensation shall not be limited
by any provision of law in regard to the compensation of a trustee of an express
trust) as agreed in writing between the Company and the Trustee;
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture
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(including the reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance as may be
attributable to the Trustee's gross negligence or bad faith; and
(3) to indemnify the Trustee and its directors, officers,
employees and agents for, and to hold them harmless against, any loss, liability
or expense (including counsel's fees and expenses) without gross negligence or
bad faith on the part of any of them, arising out of or in connection with the
acceptance or adminis tration of this trust, including the costs and expenses of
defending itself or them selves against any claim or liability in connection
with the exercise or performance of any of its or their powers or duties
hereunder.
Upon the occurrence of an Event of Default or a potential
Event of Default or upon the Trustee being required, or considering it
necessary, to undertake duties outside the usual scope of a Trustee, the Trustee
will be entitled to charge additional fees as agreed upon in writing with the
Company.
The obligations of the Company under this Section 6.7 to
compensate the Trustee, to pay or reimburse the Trustee for expenses,
disbursements and advances and to indemnify and hold harmless the Trustee shall
constitute additional Indebtedness hereunder and shall survive the satisfaction
and discharge of this Indenture or the earlier resignation or removal of the
Trustee. As security for the performance of such obligations of the Company, the
Trustee shall have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or (7), the
expenses (including the reasonable charges and expenses of its counsel) of and
the compensation for such services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section 6.7 shall survive the
termination of this Indenture or the earlier resignation or removal of the
Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility;
Conflicting Interests.
(a) There shall be at all times a Trustee hereunder which
shall be subject to and comply with the provisions of Section 310(a)(1) of the
Trust Indenture Act and shall have a combined capital and surplus of at least
$50,000,000. If such
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Corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of federal, state, territorial or District of Columbia
supervising or examining authority, then, for the purposes of this Section 6.8,
the combined capital and surplus of such Corporation shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 6.8, it shall resign immediately
in the manner and with the effect hereinafter speci fied in this Article Six.
(b) The Trustee shall be subject to and comply with Section
310(b) of the Trust Indenture Act.
SECTION 6.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applica ble requirements of Section 6.10.
(b) The Trustee may resign at any time by giving 60 days'
written notice thereof to the Company and without assigning any reason thereto
or being responsible for any costs or expenses occasioned thereby. If the
instrument of acceptance by a successor Trustee required by Section 6.10 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may on behalf of the Company,
appoint in its place a reputable financial institution and the Company shall not
unreasonably object to such appoint ment or may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of not less than a majority in aggregate principal amount at maturity of
the Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Security for at least six months,
(in the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), or
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(2) the Trustee shall cease to be eligible under Section
6.8(a) and shall fail to resign after written request therefor by the Company or
by any Holder who has been a bona fide Holder of a Security for at least six
months (in the case of Global Securities, as evidenced in writing to the Trustee
by the relevant Depositary or Euroclear or Cedelbank), or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i)the Company, by a Board
Resolution, may remove the Trustee or (ii)subject to TIA Section 315(e), any
Holder who has been a bona fide Holder of a Security for at least six months,
(in the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), may on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Com pany, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in aggregate principal amount at
maturity of the Outstanding Securities delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have been so
appointed by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six months, (in the case of Global Securities, as evidenced in
writing to the Trustee by the relevant Depositary or Euroclear or Cedelbank),
may on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to the
Holders of Securities in the manner provided for in Section 1.6. Each notice
shall include the name of the successor Trustee and the address of its Corporate
Trust Office.
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(g) The retiring Trustee shall not be liable for any of the
acts or omissions of any successor Trustee appointed hereunder.
SECTION 6.10 Acceptance of Appointment by Successor. Every
successor Trustee appointed hereunder shall execute, acknowledge and deliver to
the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its fees, costs, expenses,
charges and any other amounts owed to it hereunder, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute
any and all instruments for more fully and certainly vesting in and confirm ing
to such successor Trustee all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business. Any Corporation into which the Trustee may be merged or converted
or with which it may be Consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided that such Corporation shall be otherwise qualified and eligible under
this Article Six, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have been
authenti cated, any successor Trustee may authenticate such Securities either in
the name of any predecessor hereunder or in the name of the successor Trustee.
In all such cases such certificates shall have the full force and effect which
this Indenture provides that the certificate of authentication of the Trustee
shall have; provided, however, that the right to adopt the certificate of
authentication of any predecessor Trustee or
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to authenticate Securities in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, conversion or consolidation.
SECTION 6.12 Trustee Acting in Other Capacities. To the extent
that the Trustee, Banque Internationale a Luxembourg or any other Person
appointed hereunder as Trustee or Paying Agent is acting as Securities
Registrar, Common Depository, Depository or Paying Agent hereunder, the rights,
privileges, immunities and indemnities set forth in this Article Six shall apply
to the Trustee in the addi tional capacities listed above.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders.
Every Holder of Securities, by receiving and holding the same, agrees with the
Company and the Trustee that none of the Company or the Trustee or any agent of
either of them shall be held accountable by reason of the disclosure of any such
information as to the names and addresses of the Holders in accordance with TIA
Section 3.12, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
SECTION 7.2 Reports by Trustee. Within 60 days after May 30 of
each year commencing with the first May 30 after the first issuance of
Securities, the Trustee shall transmit to the Holders, in the manner and to the
extent provided in TIA Section 313(c), a brief report dated as of such May 30 if
required by TIA Section 313(a).
SECTION 7.3 Reports by Company. The Company shall file with
the Trustee and deliver to the Holders of Securities the reports and other
information required to be provided by it pursuant to Section 10.8.
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ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain
Terms. The Company shall not, in a single transaction or a series of related
transac tions, (i) consolidate with or merge into any other Person or Persons or
(ii) directly or indirectly, sell, lease, convey or transfer all or
substantially all of its assets (com puted on a Consolidated basis) to any other
Person or group of affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a Corporation organized under the
laws of The Netherlands or of the United States of America or any state or the
District of Columbia, any member of the European Economic Area or Switzerland
and ex pressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(3) unless such transaction is solely the merger of the
Company and one of its previously existing Wholly Owned Subsidiaries and which
transaction is not in connection with any other transaction, immediately after
giving effect to such transaction, on a pro forma basis, the Consolidated
resulting, surviving or transferee entity would immediately thereafter be
permitted to incur at least $1.00 of additional Indebtedness pursuant to the
Debt Incurrence Ratio set forth in Section 10.11 or, if not, the Leverage Ratio
would immediately thereafter be no greater than the Leverage Ratio immediately
prior thereto;
(4) each Subsidiary Guarantor, unless such Subsidiary
Guarantor is the Person with which the Company has entered into a transaction
under this section, shall have by amendment to its Guarantee of the Securities
confirmed that its Guarantee of the Securities shall apply to the obligations of
the Company or the surviving entity in accordance with the Securities and this
Indenture; and
(5) the Company has delivered to the Trustee an Officers'
Certifi cate and an Opinion of Counsel, each in form attached hereto as Exhibits
E and F respectively, stating that such consolidation, merger, conveyance,
transfer, lease or acquisition and, if a supplemental indenture is required in
connection with such
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transaction, such supplemental indenture, complies with this Article and that
all conditions precedent herein provided for relating to such transaction have
been complied with, and, with respect to such Officers' Certificate.
For purposes of this Section 8.1, the transfer (by lease,
assignment, sale or otherwise) of all or substantially all of the properties and
assets of one or more Subsidiaries, the Company's interest in which constitutes
all or substantially all of the properties and assets of the Company, shall be
deemed to be the transfer of all or substantially all of the properties and
assets of the Company.
SECTION 8.2 Successor Substituted. Upon any consolidation of
the Company with or merger of the Company with or into any other Corporation or
any conveyance, transfer or lease of the properties and assets of the Company
substan tially as an entirety to any Person or Persons in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and (except in the case of a lease) be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and, in the event of any such conveyance or transfer (except in the case of a
lease), the Company shall be dis charged of all obligations under this Indenture
and the Securities except with respect to any obligations that arise from, or
are related to, such transaction.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders. Without the
consent of any Holders, the Company, when authorized by a Board Resolution, and
the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form and substance satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the Company
con tained herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein conferred upon the
Company; or
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(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition
to or in place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section 6.10;
or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture; provided that such action shall not adversely affect the
interests of the Holders in any material respect; or
(7) to provide for collateral securing the Company's
obligations under this Indenture and the Securities; or
(8) to provide for Guarantees by any other Person of the Com
pany's obligations pursuant to this Indenture and the Securities;
provided such actions shall not adversely affect the interests of Holders in any
material respect.
SECTION 9.2 Indentures with Consent of Holders. With the
consent of the Holders of not less than a majority in aggregate principal amount
at maturity of the Outstanding Securities, by Act of said Holders delivered to
the Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however, that:
(i) no such modification may, without the consent of Holders
of at least 66 2/3% in aggregate principal amount at maturity
of Outstand ing Securities, modify the provisions of Section
10.10 (including the defined terms used therein) in a manner
adverse to the Holders; and
(ii) no such modification shall, without the consent of the
Holder of each Outstanding Security affected thereby:
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(1) change the Stated Maturity of any Security, or reduce the
principal amount or Accreted Value at maturity thereof or the rate of accretion
or interest (or extend the time for payment of interest, if any) thereon or any
premium payable upon the redemption thereof at the option of the Company, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption at the option of the Company, on
or after the Redemption Date), or reduce the Change of Control Purchase Price or
the Asset Sale Offer Price after the corresponding Change of Control or Asset
Sale has occurred or alter the provi sions (including the defined terms used
therein) regarding the right of the Company to redeem the Securities in a manner
adverse to the Holders, or
(2) reduce the percentage in principal amount at maturity of
the Outstanding Securities, the consent of whose Holders is required for any
such amendment, supplemental indenture or waiver provided for in this Indenture,
or
(3) modify any of the waiver provisions, except to increase
any required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) cause the Securities to become subordinate in right of
payment to any other Indebtedness.
It shall not be necessary for any Act of Holders under this
Section 9.2 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
SECTION 9.3 Execution of Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article Nine or the modifications thereby of the trusts created by this
Indenture, the Trustee shall receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is permitted by this Indenture and an Officers' Certificate stating
that all conditions precedent to the execution of such supplemental indenture
have been fulfilled. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights, duties
or immunities under this Indenture or otherwise.
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SECTION 9.4 Effect of Indentures. Upon the execution of any
supplemental indenture under this Article Nine, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every supple
mental indenture executed pursuant to this Article Nine shall conform as a
matter of contract or law to the requirements of the Trust Indenture Act as then
in effect.
SECTION 9.6 Reference in Securities to Indentures. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine may bear a notation in form approved by the
Trustee and the Company as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities.
SECTION 9.7 Notice of Indentures. Promptly after the execution
by the Company and the Trustee of any supplemental indenture pursuant to the
provi sions of Section 9.2, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section
1.6, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and
Interest. (1) The Company covenants and agrees for the benefit of the Holders
that it shall duly and punctually pay the principal or Accreted Value of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
(2) For the purpose set forth in paragraph (1) above, the
Company shall, no later than 10:00 a.m., New York time, on the Business Day
first preceding each Payment Date, transfer to an account specified by the
Trustee such amount in
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immediately available and freely transferable U.S. Dollar funds, in the case of
Dollar Denominated Securities, or Euro funds, in the case of Euro Denominated
Securities, as shall be sufficient for the purposes of the payment of principal
of (and premium, if any) and interest (and Liquidated Damages, if any) due to be
paid on the Securities on that date.
(3) The Company shall ensure that not later than the second
Business Day immediately preceding the date on which any payment is to be made
to the Trustee pursuant to this Section 10.1, the Company shall procure that a
copy of an irrevocable payment instruction to the bank through which the payment
is to be made shall be sent to the Trustee.
(4) Unless and until the full amount of any payment due on the
Securities has been made to the Trustee, or unless and until the Trustee is
satisfied that such payment will be made, neither it nor the other Paying Agents
shall be bound to make payments in respect of the Securities hereunder.
(5) If the Trustee or a Paying Agent pays any amounts to the
Holders or to any other Agent at a time when it has not received payment in full
from the Company in respect of such Securities, the Company shall, in addition
to paying amounts due under Section 10.1(2), pay to the Trustee on demand
interest thereon at such a rate as the Trustee shall certify as the aggregate of
1% per annum and the cost of funding any such payment made by it (as determined
by the Trustee) until the receipt in full by the Trustee of the funds due to it
pursuant to Section 10.1(2).
SECTION 10.2 Maintenance of Office or Agency. The Company
shall maintain in The City of New York and London, and for so long as the Securi
ties are listed on the Luxembourg Stock Exchange, in Luxembourg, an office or
agency where Securities may be presented or surrendered for payment, where
Securities may be surrendered for registration of transfer or exchange and where
notices and demands (other than service of process) to or upon the Company in
respect of the Securities and this Indenture may be served. The Corporate Trust
Office of the Trustee shall be such office or agency of the Company, unless the
Company shall designate and maintain some other office or agency for one or more
of such purposes. The Company shall give prompt written notice to the Trustee of
any change in the location of any such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Com pany hereby appoints the Trustee as its agent to receive
all such presentations, surrenders, notices and demands.
The Company hereby initially designates (1) the Trustee at its
address set forth in Section 1.5 hereof as its office or agency in London and
Citibank N.A. (New York branch), 111 Wall Street, New York, New York as its
office or agency in New York, for such purposes, (ii) Banque Internationale a
Luxembourg, at its office or agency in Luxembourg for such purposes and (iii)
the Paying Agent at its address set forth in Section 1.5 hereof.
The Company may also from time to time designate one or more
other offices or agencies (in or outside of The City of New York) where the
Securities may be presented or surrendered for any or all such purposes and may
from time to time rescind any such designation; provided, however, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in The City of New York and, for so
long as the Securities are listed on the Luxembourg Stock Exchange, in
Luxembourg, for such purposes. The Company shall give prompt written notice to
the Trustee of any such designation or rescission and any change in the location
of any such other office or agency.
SECTION 10.3 Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it shall, on or
before each due date of the principal or Accreted Value of (or premium, if any)
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal or
Accreted Value of (or premium, if any) or interest so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided
and shall promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
the Securities, it shall, on or before each due date of the principal or
Accreted Value of (or premium, if any) or interest on any Securities, deposit
with a Paying Agent a sum sufficient to pay the principal or Accreted Value (and
premium, if any) or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal or Accreted Value, premium
or interest, and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the
Trustee) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall
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agree with the Trustee, subject to the provisions of this Section 10.3, that
such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal
or Accreted Value of, premium, if any, or interest on Securities in trust for
the benefit of the Persons entitled thereto until such sums shall be paid to
such Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities) in the making of any payment of principal
or Accreted Value, premium, if any, or interest, of which it is aware;
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith act under the direction of
the Trustee and pay to the Trustee all sums so held in trust by such Paying
Agent; and
(4) indemnify the Trustee and its officers, directors,
employees and agents against any loss, cost or liability caused by, or incurred
as a result of, such Paying Agent's acts or omissions.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or
then held by the Company, in trust for the payment of the principal or Accreted
Value of, premium, if any, or interest on any Security and remaining unclaimed
for two years after such principal or Accreted Value, premium or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Security shall thereafter, as an unsecured general creditor, look only to
the Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily
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published on each Business Day and of general circulation in the Borough of
Manhattan, The City of New York and in London, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 10.4 Corporate Existence. Subject to Article Eight,
the Company shall do or cause to be done all things necessary to preserve and
keep in full force and effect the corporate existence, rights (charter and
statutory) and franchises of the Company and each Subsidiary; provided, however,
that the Com pany shall not be required to preserve, with respect to the
Company, any such right or franchise or, with respect to any Subsidiary (subject
to all the other covenants in this Indenture), any such corporate existence,
right or franchise, if the Supervisory Board of the Company shall determine that
the preservation thereof is no longer desirable in the conduct of the business
of the Company and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to the Holders.
SECTION 10.5 Payment of Taxes and Other Claims. The Company
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (a) all taxes, assessments and governmental charges levied or
imposed upon the Company or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary and (b) all lawful claims for labor,
materials and supplies which, if unpaid, might by law become a lien upon the
property of the Company or any Subsidiary; provided, however, that the Company
shall not be required to pay or discharge or cause to be paid or discharged any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.6 Maintenance of Properties. The Company shall
cause all properties owned by the Company or any Subsidiary or used or held for
use in the conduct of its business or the business of any Subsidiary to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly and advantageously conducted at all times;
provided, however, that nothing in this Section 10.6 shall prevent the Company
from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of the Company,
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desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 10.7 Insurance. The Company shall at all times keep
all of its and its Subsidiaries' properties which are of an insurable nature
insured with insurers, believed by the Company to be responsible, against loss
or damage to the extent that property of similar character is usually so insured
by Corporations similarly situated and owning like properties.
SECTION 10.8 Provision of Financial Statements. The Company
has agreed that, for so long as any Securities remain Outstanding, whether or
not the Company is subject to the reporting requirements of Section 13 or 15(d)
of the Exchange Act, the Company will deliver to the Trustee and, to each Holder
and to prospective purchasers of Securities identified to the Company, within 15
days after the Company is or would have been (if the Company were subject to
such reporting obligations) required to file such with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that would have been included in reports filed with the SEC, if the Company were
subject to the require ments of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC, and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required and, unless the SEC will not accept such reports, file with
the SEC the annual, quarterly and other reports which it is or would have been
required to file with the SEC.
Following the effectiveness of the Registration Statement, the
Company will file with the Trustee, at the time it files them with the SEC,
copies of the annual and quarterly reports and the information, documents and
other reports that the Company is required to file with the SEC under Section
13(a) or 15(d) of the Exchange Act. If the Company ceases to be required to file
SEC reports under the Exchange Act, the Company will nevertheless continue to
file such reports with the Trustee. The Company will furnish copies of the SEC
reports to investors who request them in writing.
SECTION 10.9 Statement by Officers as to Default.
(a) The Company shall deliver to the Trustee, on the date of
delivery of each quarterly report to be delivered pursuant to Section 10.8, and
within 14 days of a request by the Trustee, a brief certificate from the
principal executive
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officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture. For purposes of this Section 10.9(a), such compliance
shall be determined without regard to any period of grace or requirement of
notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the Trustee for or the Holder of any other evidence of
Indebtedness of the Company or any Subsidiary gives any notice or takes any
other action with respect to a claimed default (other than with respect to
Indebtedness in the principal amount of less than $50,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
SECTION 10.10 Purchase of Securities upon Change of Control.
(1) (a) Upon the occurrence of a Change of Control, the Com-
pany will be required to make an offer to each Holder to purchase for cash all
or a portion of such Holder's Securities (provided that the principal amount at
maturity of such Securities must be $1,000 or an integral multiple thereof)
pursuant to the offer described below (the "Change of Control Offer"), at a
purchase price in cash equal to 101% of the Accreted Value thereof on the
purchase date plus accrued and unpaid interest (and Liquidated Damages, if any)
not otherwise included in the Accreted Value to the date of purchase (the
"Change of Control Purchase Price").
(b) Within 10 Business Days following a Change of Control, the
Company must send a notice to each Holder which notice shall govern the terms of
the Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no later than 35 Business Days from the date of the
Change of Control, other than as may be required by law (the "Change of Control
Purchase Date"). The Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, by delivery of a form entitled
"Option of Holder to Elect Purchase", obtainable from the Trustee or any Paying
Agent, completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the third Business Day prior to the Change of
Control Purchase
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Date. The Paying Agent promptly will pay the Holders of Securities so accepted
an amount equal to the Change of Control Purchase Price (together with accrued
and unpaid interest and Liquidated Damages, if any) and the Trustee promptly
will authenticate and deliver to such Holders a new Security equal in principal
amount at maturity to any unpurchased portion of the Security surrendered. The
Company will publicly announce the results of the Change of Control Offer on or
as soon as practicable after the Change of Control Purchase Date.
The notice referred to above shall be a written offer (the
"Offer") sent by the Company by first class mail, postage prepaid, to each
Holder of Securities at its address appearing in the Security Register on the
date of the Offer offering to purchase up to the principal amount at maturity of
Securities specified in such Offer at the Change of Control Purchase Price.
Unless otherwise required by applicable law, the Offer shall specify an
expiration date (the "Expiration Date") of the Change of Control Offer which
shall be, subject to any contrary requirements of applicable law, 20 Business
Days after the date of the Offer and a settlement date (the "Change of Control
Purchase Date") for purchase of Securities within five Business Days after the
Expiration Date. The Company shall notify the Trustee in writing at least 15
Business Days, or a shorter period that is acceptable to the Trustee, prior to
the mailing of the Offer of the Company's obligation to make a Change of Control
Offer, and the Offer shall be mailed by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company. The Offer
shall contain information concerning the business of the Company and its
Subsidiaries which the Company in good faith believes will enable the Holders to
make an informed decision with respect to the Change of Control Offer, which at
a minimum will include (i) the most recent annual and quarterly financial
statements and "Manage ment's Discussion and Analysis of Financial Condition and
Results of Operations" contained in the documents required to be filed with the
Trustee pursuant to Section 10.8 (which requirements may be satisfied by
delivery of the documents together with the Offer), (ii) a description of
material developments in the Company's business subsequent to the date of the
latest of the financial statements referred to in clause (i) (including a
description of the events requiring the Company to make the Change of Control
Offer), (iii) if applicable, appropriate pro forma financial informa tion
concerning the Change of Control Offer and the events requiring the Company to
make the Change of Control Offer and (iv) any other information required by
applicable law to be included therein. The Offer shall contain all instructions
and materials necessary to enable the Holders to tender Securities pursuant to
the Change of Control Offer. The Offer shall also state:
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(a) the Section of this Indenture pursuant to which the
Offer to Purchase is being made;
(b) the Expiration Date and the Change of Control
Purchase Date;
(c) the aggregate principal amount at maturity of the
Outstanding Securities offered to be purchased by the Company in the Change of
Control Offer, including, if less than 100%, the manner by which the amount has
been determined pursuant to the Section hereof requiring the Change of Control
Offer (the "Purchase Amount");
(d) the Change of Control Purchase Price;
(e) that the Holder may tender all or any portion of the
Securities registered in the name of the Holder and that any portion of a
Security tendered must be tendered in an integral multiple of $1,000 principal
amount at maturity;
(f) the place or places where the Securities are to be
surrendered for tender pursuant to the Change of Control Offer;
(g) that any of the Securities not tendered or tendered but
not purchased by the Company will continue to accrete or accrue interest, as the
case may be;
(h) that on the Change of Control Purchase Date the Purchase
Price will become due and payable upon the Securities being accepted for payment
pursuant to the Change of Control Offer and that any interest shall cease to
accrue on and after the Change of Control Purchase Date;
(i) that each Holder electing to tender the securities in the
purchase will be required to surrender the Securities at the place or places
specified in the Offer prior to the close of business on the Expiration Date
with the Securities being, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee duly
signed by, the Holder or his attorney duly authorized in writing;
(j) that Holders will be entitled to withdraw all or any
portion of the Securities tendered if the Company or its Paying Agent receives,
not later than the close of business on the Expiration Date, a facsimile
transmission or letter setting forth the name of the Holder, the principal
amount at maturity of the Securities the
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Holder tendered, the certificate number of the Securities the Holder tendered
and a statement that such Holder is withdrawing all or a portion of his tender;
(k) that (i) if the Securities in an aggregate principal
amount at maturity less than or equal to the Purchase Amount are duly tendered
and not withdrawn in the Purchase, the Company shall purchase all the Securities
and (ii) if the Securities in an aggregate principal amount at maturity in
excess of the Purchase Amount are tendered and not withdrawn in the Change of
Control Offer, the Com pany shall purchase the Securities having an aggregate
principal amount at maturity equal to the Purchase Amount on a pro rata basis
with adjustments that the Com pany may deem appropriate so that only Securities
in denominations of $1,000 principal amount at maturity or integral multiples
thereof shall be purchased; and
(l) that in the case of any Holder whose Securities are
purchased only in part, the Company shall sign, and the Trustee shall
authenticate and deliver to the Holder of the Securities without service charge,
the new Security or Securities, of any authorized denomination as requested by
the Holder, in an aggregate principal amount at maturity equal to and in
exchange for the unpurchased portion of the Securities so tendered.
Any Offer to Purchase shall be governed by and effected in
accor dance with the Offer for such Change of Control Offer.
The Company will not be required to make an offer to purchase
any series of Securities upon a Change of Control if, before the Change of
Control occurs, it has exercised its right to redeem all of the Securities of
such series as described under Section 11.1.
(2) On or before the Change of Control Purchase Date, the
Company shall (i) accept for payment Securities or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) cash sufficient to pay the purchase price (together
with accrued and unpaid interest and Liquidated Damages, if any) of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so tendered together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company.
(3) In the event that the Company makes a Change of Control
Offer, the Company shall comply with any applicable securities laws and
regulations,
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including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
(4) If the Change of Control Purchase Date hereunder is on or
after an interest payment Record Date and on or before the associated Interest
Payment Date, any accrued and unpaid interest (and Liquidated Damages, if any)
due on such Interest Payment Date will be paid to the Person in whose name a
Security is registered at the close of business on such Record Date, and such
interest (and Liquidated Damages, if applicable) will not be payable to Holders
who tender the Securities pursuant to the Change of Control Offer.
Notwithstanding anything contained in this Indenture to the
contrary, the Company will not, any will not permit any of its Subsidiaries to,
incur any Indebtedness that is contractually subordinate to any other
Indebtedness of the Company unless such Indebtedness is at least as subordinate
to the Securities.
SECTION 10.11 Limitation on Incurrence of Additional Indebted
ness and Disqualified Capital Stock. (1) The Company may not, and may not permit
any Subsidiary to, directly or indirectly, issue, assume, guaranty, incur,
become directly or indirectly liable with respect to (including as a result of
an Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an "incurrence"),
any Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness), other than Permitted Indebtedness. Notwithstanding the foregoing
if:
(i) no Default or Event of Default shall have occurred and be
continu ing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness; and
(ii) on the date of such incurrence (the "Incurrence Date"),
either (i) the Leverage Ratio of the Company for the Reference Period
immediately preceding the Incurrence Date, after giving effect on a pro forma
basis to such incurrence of such Indebtedness and, to the extent set forth in
the definition of Leverage Ratio, the use of proceeds thereof, would not exceed
7.0 to 1.0 (the "Debt Incurrence Ratio"), (ii) the Consolidated Coverage Ratio
of the Company for the Reference Period immediately preceding the Incurrence
Date, after giving effect on a pro forma basis to such incurrence of such
Indebtedness and, to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would not be less than 1.75 to 1.0,
or (iii) after giving effect on a pro forma basis to such incurrence of
Indebtedness, and, to the extent used to retire other Indebtedness, the use of
proceeds
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therefrom, the amount of Indebtedness Outstanding of the Company would not
exceed 225% of the Consolidated Invested Equity Capital of the Company,
then the Company may incur such Indebtedness (including Disqualified Capital
Stock and Acquired Indebtedness).
(2) The foregoing limitations of paragraph (1) of this Section 10.11
will not prohibit:
(a) if no Event of Default shall have occurred and be
continuing, the incurrence by the Company or its Subsidiaries of Indebtedness in
an aggregate amount incurred and Outstanding at any time pursuant to this
subparagraph (a) (plus any refinancing indebtedness incurred to retire, defease,
refinance, replace or refund such Indebtedness) of up to $400,000,000 (or the
equivalent thereof, at the time of incurrence, in the applicable foreign
currencies);
(b) the incurrence by the Company and its Subsidiaries of
Indebt edness pursuant to the Credit Agreement in an aggregate amount incurred
and Outstanding at any time pursuant to this paragraph (b) (plus any refinancing
indebt edness incurred to retire, defease, refinance, replace or refund such
Indebtedness) of up to (U)1 billion, minus the amount of any such Indebtedness
(i) retired with the Net Cash Proceeds from any Asset Sale applied to reduce
permanently the Outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 10.16 or (ii) assumed by a transferee in an
Asset Sale;
(c) the incurrence by any Subsidiary of Indebtedness, if on
the Incurrence Date either (1) the Leverage Ratio of such Subsidiary of the
Company for the Reference Period immediately preceding the Incurrence Date,
after giving effect on a pro forma basis to such incurrence of such Indebtedness
and to the extent set forth in the definition of Leverage Ratio, the use of
proceeds thereof, would be no more than 7.0 to 1.0, or (2) the Consolidated
Coverage Ratio of such Subsidiary for the Reference Period immediately preceding
the Incurrence Date, after giving effect on a pro forma basis to such incurrence
of such Indebtedness and, to the extent set forth in the definition of
Consolidated Coverage Ratio, the use of proceeds thereof, would be no less than
1.75 to 1.00, or (3) after giving effect on a pro forma basis to such incurrence
of such Indebtedness, and, to the extent used to retire other Indebted ness, the
use of proceeds therefrom, the amount of Indebtedness Outstanding of such
Subsidiary would not exceed 225% of the Consolidated Invested Equity Capital of
such Subsidiary, provided in the case of each of clauses (c)(1), (2) and (3),
the net proceeds therefrom are used in a Related Business of the Company or any
affiliated
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company of the Company, and provided, further, that for the purposes of this
clause (c) a Subsidiary may be a co-obligor or guarantor on such Indebtedness of
another Subsidiary of the Company (A) if such co-obligor or guarantor Subsidiary
owns (either directly or indirectly through one or more Subsidiaries of the
Company) all or a portion of the Equity Interests of the Subsidiary of the
Company that incurred such Indebtedness, (B) if all or a portion of the Equity
Interests of such co-obligor or guarantor Subsidiary is owned (either directly
or indirectly through one or more Subsidiaries of the Company) by the Subsidiary
that incurred such Indebtedness or (C) if such co-obligor or guarantor
Subsidiary owns (either directly or indirectly through one or more Subsidiaries
of the Company) all or a portion of the business that will use the proceeds of
such Indebtedness; and
(d) if no Event of Default shall have occurred and be
continuing, the incurrence by Subsidiaries of the Company of Indebtedness
pursuant to the Existing Agreements up to, but not in excess of the maximum
applicable amounts of Indebtedness available for borrowing pursuant to the terms
of each such Existing Agreement as in effect on the date of the Indenture;
provided that, in determining the maximum applicable amounts available, it shall
be assumed that the Company satisfies any applicable conditions to borrowing.
Indebtedness (including Disqualified Capital Stock) of any Person which
is Outstanding at the time such Person becomes a Subsidiary of the Company
(includ ing upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or Consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
Consolidated with the Company or a Subsidiary of the Company, as applicable.
Upon each incurrence, the Company may designate pursuant to which
provision of this Section 10.11 such Indebtedness is being incurred and such
Indebt edness shall not be deemed to have been incurred or Outstanding under any
other provision of this Section 10.11, except as stated otherwise in the
foregoing provi sions.
SECTION 10.12 Limitation on Restricted Payments. (1) The
Company may not, and may not permit any of its Subsidiaries to, directly or indi
rectly, make any Restricted Payment if, after giving effect to such Restricted
Payment on a pro forma basis:
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(A) a Default or an Event of Default shall have occurred and be
continuing,
(B) the Company is not permitted to incur at least $1.00 (or its
foreign currency equivalent) of additional Indebtedness pursuant to the Debt
Incurrence Ratio in Section 10.11, or
(C) the aggregate amount of all Restricted Payments made by the Com-
pany and its Subsidiaries, including after giving effect to such proposed
Restricted Payment, on and after the Issue Date, would exceed, without
duplication (and except to the extent otherwise credited pursuant to clause (g)
of the definition of "Permitted Investment"), the sum of:
(a) (i) the amount of the cumulative Consolidated EBITDA of
the Company, if positive, less 150% of the cumulative Consolidated Fixed Charges
of the Company, for the period (taken as one accounting period), commencing on
the first day of the first full fiscal quarter commencing after the Issue Date,
to and including the last day of the fiscal quarter ended immediately prior to
the date of each such calculation for which Consolidated financial statements of
the Company are available, provided that such sum shall not be deemed to result
in an amount less than zero for purposes of any calculation pursuant to this
clause (C)(a)(i); or (ii) if such cumulative Consolidated EBITDA of the Company
is zero or less, then the amount of such cumulative Consolidated EBITDA for such
period; plus
(b) the aggregate Net Cash Proceeds received by the Company
from the sale of its Qualified Capital Stock (other than (i) to a Subsidiary of
the Company and (ii) to the extent applied in connection with a Qualified
Exchange), after the Issue Date; plus
(c) to the extent that any Investment (other than a Permitted
Investment) that was made after the Issue Date is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the
amount of cash or Cash Equivalents received by the Company, but only to the
extent of the lesser of (i) the cash or Cash Equivalents transferred as a return
of capital with respect to such Investment and (ii) the initial amount of such
Investment (in either case, less the cost of disposition, if any); plus
(d) in the event an Unrestricted Subsidiary is designated as a
Subsidiary, an amount equal to fair market value, at such time, of the
Investment of the Company and its Subsidiaries made after the Issue Date;
provided, however, that
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such amount shall not exceed the amount of Investments previously made in such
Subsidiary that were counted as Restricted Payments pursuant to this covenant.
(2) (a) The foregoing clauses (B) and (C) of Section 10.12(1),
however, will not prohibit: (i) any dividend, distribution or payment of
dividends on Disqualified Capital Stock permitted by Section 10.11; and (ii) any
repurchase by the Company of any shares of any class or options to acquire such
shares from any current, future or former directors, officers or employees of
the Company or any of its Subsidiaries or Affiliates, provided that the
aggregate amount of all the repur chases made under this clause shall not exceed
$10,000,000 in any twelve-month period (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso) of $14,000,000 in any calendar year);
provided, further, that such amount in any calendar year may be increased by an
amount not to exceed (1) the cash proceeds from the sale of Capital Stock of the
Company to its Supervisory Board members, management board members or officers
of the Company and its Subsidiaries that occurs after the Issue Date, plus (2)
the cash proceeds of key man life insurance policies received by the Company and
its Subsidiaries after the Issue Date;
and (b) the foregoing clauses (A), (B) and (C) of Section 10.12(1) will not
prohibit:
(i) any dividend, distribution or other payments by any
Subsidiary of the Company on its Equity Interests that is paid pro rata to all
holders of such Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend could have
been made on the date of such declaration in compliance with the foregoing
provisions; or
(iv) the payment of dividends by the Company in cash or
Qualified Capital Stock pursuant to the terms of any Parent Stock Instrument
that is incurred or issued (as applicable) in compliance with this Indenture.
The full amount of any Restricted Payment made pursuant to
para graphs 2(a)(i), (ii) and 2(b)(i), (iii) and (iv), but not pursuant to
paragraph 2(b)(ii), however, will be counted as Restricted Payments made for
purposes of the calcula tion of the aggregate amount of Restricted Payments
available to be made referred to in Section 10.12(1)(C).
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For purposes of this section, the amount of any Restricted
Payment made or returned, if other than in cash, shall be the fair market value
thereof, as determined in the good faith reasonable judgment of the Company's
Supervisory Board, unless stated otherwise, at the time made or returned, as
applicable. Addition ally, on the date of each Restricted Payment, the Company
shall deliver an Officers' Certificate to the respective Trustee describing in
reasonable detail the nature of such Restricted Payment, stating the amount of
such Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compli ance with the terms of this
Indenture.
SECTION 10.13 Limitation on Dividend and Other Payment
Restrictions Affecting Subsidiaries. (1) The Company may not, and may not permit
any Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any consensual restriction on the ability of any
Subsidiary:
(i) to pay dividends, in cash or otherwise, or make any
other distributions to or on behalf of or pay any obligation to or on behalf of
the Company or any Subsidiary of the Company;
(ii) to make or pay loans or advances to or on behalf of
the Company or any Subsidiary of the Company; or
(iii) to transfer property or assets to or on behalf of the
Company or any Subsidiary of the Company,
except:
(a) restrictions imposed by the Securities or the Discount
Notes or the Indenture or the Discount Notes Indenture or by other Indebtedness
of the Company ranking pari passu with the Securities and the Discount Notes,
provided that such restrictions are no more restrictive than those imposed by
the Indenture and the Securities;
(b) restrictions imposed by applicable law;
(c) restrictions under Indebtedness Outstanding on the Issue
Date, including pursuant to the Credit Agreement;
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(d) restrictions under any Acquired Indebtedness not incurred
in violation of the Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company or any of
its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition, and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired;
(e) any such restriction or requirement imposed by
Indebtedness incurred under the Credit Agreement pursuant to Section 10.11,
provided that such restriction or requirement is no more restrictive than that
imposed by the Credit Agreement as of the Issue Date;
(f) with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement which has been entered into for the sale or
disposi tion of all or substantially all of the Equity Interests or assets of
such Subsidiary, provided that such restrictions apply solely to the Equity
Interests or assets of such Subsidiary which are being sold;
(g) restrictions under Purchase Money Indebtedness not
incurred in violation of the Indenture, provided that such restrictions relate
only to the property financed with such Indebtedness;
(h) with respect to any Subsidiary, restrictions contained in
the terms of any Indebtedness incurred in compliance with the Indenture, or any
agree ment pursuant to which such Indebtedness was issued, if (A) the
encumbrance or restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such Indebtedness or
agreement, (B) the Company shall have reasonably determined that the encumbrance
or restriction is not materially more disadvantageous to the Holders of the
Securities than is customary in compara ble financings, and (C) the Company
shall have reasonably determined that any such encumbrance or restriction will
not materially affect the Company's ability to make principal or interest
payments on the Securities; and
(i) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d), or (g),
or this clause (i), of this paragraph that are not more restrictive than those
being replaced and do not apply to any other Person or assets than those that
would have been covered by the restrictions in the Indebtedness so refinanced.
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(2) Notwithstanding the provisions of Section 10.13(1), (a)
customary provisions restricting subletting, assignment or transfer of any
lease, license, convey ance, or similar document or instrument entered into in
the ordinary course of business, consistent with industry practice and (b) any
asset or property subject to a Lien which is not prohibited to exist with
respect to such asset pursuant to the terms of this Indenture may be subject to
customary restrictions on the transfer or disposi tion thereof pursuant to such
Lien.
SECTION 10.14 Limitation on Liens Securing Indebtedness. The
Company may not, and may not permit any Subsidiary to, create, incur, assume or
suffer to exist any Lien of any kind, other than Permitted Liens, upon any of
their respective assets now owned or acquired on or after the date of this
Indenture or upon any income or profits therefrom securing any Indebtedness of
the Company, unless the Company provides, and causes its Subsidiaries to
provide, concurrently therewith, that the Securities are equally and ratably so
secured; provided that if such Indebtedness is Subordinated Indebtedness, the
Lien securing such Subordinated Indebtedness shall be subordinate and junior to
the Lien securing the Securities with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Securities.
SECTION 10.15 Limitation on Issuances of Guarantees by
Subsidiar ies. (1) Notwithstanding the other provisions of this Indenture, the
Company may not permit any Subsidiary to, directly or indirectly, Guarantee any
Indebtedness of the Company (other than Indebtedness incurred pursuant to the
Credit Agreement in accordance with the terms of this Indenture) ("Guaranteed
Indebtedness"), then such Subsidiary must become a Guarantor (a "Subsidiary
Guarantor") of the Securities on a basis such that the Subsidiary's Guarantee of
the Securities shall stand in substan tially the same relative ranking in right
of payment to the guarantee of such other Indebtedness as the Securities stand
in relative ranking to such other Indebtedness; provided that this paragraph
shall not be applicable to any guarantee by any Subsid iary that (a) existed at
the time such Person became a Subsidiary of the Company and (b) was not incurred
in connection with, or in contemplation of, such Person becom ing a Subsidiary
of the Company.
(2) Subsidiary Guarantees shall be automatically released upon
(i) the sale or other disposition of all or substantially all of the Company's
and its Subsidiar ies' beneficial interest in the Equity Interests or assets of
such Subsidiary Guarantor, provided that thereafter such Subsidiary Guarantor
shall cease to be a Subsidiary of the Company, (ii) the consolidation or merger
of any such Subsidiary Guarantor with any Person other than the Company or a
Subsidiary of the Company if, as a result of
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such consolidation or merger, such Subsidiary Guarantor ceases to be a
Subsidiary of the Company (and shall not be a Subsidiary of the successor to the
Company), (iii) a Legal Defeasance, or (iv) the unconditional and complete
release of such Subsidiary Guarantor from its Guarantee of all Guaranteed
Indebtedness.
SECTION 10.16 Limitation on Sale of Assets and Subsidiary
Stock.
(1) The Company may not, and may not permit any Subsidiary to,
in one or a series of related transactions, convey, sell, transfer, assign or
otherwise dispose of, directly or indirectly, any of the Company's or such
Subsidiary's property, business or assets (including by merger or consolidation
in the case of a Subsidiary of the Company), and including any sale or other
transfer or issuance of any Equity Interests of any Subsidiary of the Company,
whether by the Company or a Subsid iary or through the issuance, sale or
transfer of Equity Interests by a Subsidiary of the Company, and including any
sale and leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(A)(1) the amount equal to the Net Cash
Proceeds therefrom (the "Asset Sale Offer Amount") is applied
(i) within 360 days (or 540 days in the case of a
Special Character Asset Sale) after the date of such Asset Sale to the
optional redemption of the Securities in accordance with the terms of
the Indenture and other Indebtedness of the Company ranking pari passu
in right of pay ment with the Securities and with similar provisions
requiring the Company to redeem such Indebtedness with the proceeds
from such Asset Sale, pro rata in proportion to the respective
principal amounts (or accreted values in the case of Securities and
other Indebtedness issued with original issue discount) of the
Securities and such other Indebtedness then Outstanding, or
(ii) within 360 days (or 540 days in the case of a
Special Character Asset Sale) after the date of such Asset Sale to the
repur chase of the Securities and such other Indebtedness ranking pro
rata in right of payment with the Securities and with similar
provisions requiring the Company to make an offer to purchase such
Indebtedness with the proceeds from such Asset Sale pursuant to a cash
offer (subject only to conditions required by applicable law, if any)
pro rata in proportion to the respective principal amounts (or accreted
values in the case of Securities and other Indebtedness issued with
original issue discount) of the Securities and such other Indebtedness
then Outstanding (the "Asset Sale Offer") at a purchase
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price of 100% of principal amount (or accreted value in the case of
Indebted ness issued with original issue discount) (the "Asset Sale
Offer Price") together with accrued and unpaid interest and Liquidated
Damages, if any, to the date of payment, made within 360 days (or 540
days in the case of a Special Character Asset Sale) of such Asset Sale,
or
(iii) within 360 days (or 540 days in the case of a
Special Character Asset Sale), to the repayment of Indebtedness then
Out standing pursuant to the Credit Agreement or, if required by the
terms of such Indebtedness, of Indebtedness issued by a Subsidiary of
the Company (in respect of which Indebtedness the Company is not a
direct or contingent obligor except by virtue of the Company's pledge
of Equity Interests of, and other interests of or claim on, such
Subsidiary or the Company's guarantee of such Subsidiary's Indebtedness
to the extent, in either case, the recourse against the Company is
limited to such Equity Interests or claim), or
(2) within 360 days (or 540 days in the case of a
Special Character Asset Sale) following such Asset Sale, the Asset Sale Offer
Amount is invested in assets and property which in the good faith reasonable
judgment of the Company will immediately constitute or be a part of a Related
Business of the Company or such Subsidiary (if it continues to be a Subsidiary)
immediately following such transaction or is used to make Permitted Investments
in the Company or a Subsidiary of the Company (other than Cash Equivalents or
securities of the Company or any Person controlling the Company except as permit
ted by the Indenture), provided that (i) 50% of the Net Cash Proceeds from
Special Character Asset Sales and 100% of the net proceeds from any Asset Sale
of an Investment made in reliance on clause (g) of the definition of "Permitted
Invest ments" may be reinvested in any Permitted Investment (other than, in
either case, Cash Equivalents or securities of the Company or any Person
controlling the Com pany except as permitted by the Indenture) which in the good
faith reasonable judgment of the Company will immediately constitute or be a
part of a Related Business and (ii) 100% of the net proceeds from an Asset Sale
constituting the sale of an Investment in any Person (excluding a Person that
would be Consolidated with the Company under GAAP and excluding Related Assets
of the Company or any of its Subsidiaries) in which the Company or any of its
Subsidiaries has an Equity Interest may be reinvested in Investments permitted
by clause (e) or (f) of the definition of "Permitted Investments,"
(B) at least 75% of the total consideration for such
Asset Sale or series of related Asset Sales consists of cash, Cash Equivalents,
Replacement
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Assets or the assumption of Indebtedness of a Subsidiary. For purposes of this
subparagraph (B), total consideration received means the total consideration
received for such Asset Sales, minus the amount of (a) Purchase Money
Indebtedness secured solely by the assets sold and assumed by a transferee,
provided that the Company and the Subsidiaries are released from any obligation
in connection therewith; and (b) property that within 30 days of such Asset Sale
is converted into cash or Cash Equivalents, provided that such cash and Cash
Equivalents shall be treated as Net Cash Proceeds attributable to the original
Asset Sale for which such property was received.
(C) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect to, on a pro
forma basis, such Asset Sale, and
(D) in the case of a transaction or series of related transac-
tions exceeding $15,000,000 (or the foreign currency equivalent on the date of
the transaction) of consideration to any party thereto, the Supervisory Board of
the Company determines in its good faith reasonable judgment that the Company or
such Subsidiary, as applicable, receives fair market value for such Asset Sale.
(2) An acquisition of Securities pursuant to an Asset Sale
Offer may be deferred until the accumulated Net Cash Proceeds from Asset Sales
not applied to the uses set forth in 1(a)(i), (iii), or 1(b) above (the "Excess
Proceeds") exceeds $50,000,000 (or the foreign currency equivalent thereof),
provided that, in the case of an Asset Sale by a Subsidiary of the Company that
is not a Wholly Owned Subsidiary, only the Company's and its Subsidiaries' pro
rata portion of such Net Cash Proceeds shall constitute Net Cash Proceeds
subject to the provisions of this Section 10.16. Each Asset Sale Offer shall
remain open for 20 Business Days following its commencement (the "Asset Sale
Offer Period"). Upon expiration of the Asset Sale Offer Period, the Company
shall apply the Asset Sale Offer Amount, plus an amount equal to accrued and
unpaid interest and Liquidated Damages, if any, to the purchase of all
Indebtedness properly tendered (on a pro rata basis if the Asset Sale Offer
Amount is insufficient to purchase all Indebtedness so tendered) at the Asset
Sale Offer Price (together with accrued interest and Liquidated Damages, if
any). To the extent that the aggregate amount of Securities and such other pari
passu Indebtedness tendered pursuant to an Asset Sale Offer is less than the
Asset Sale Offer Amount, the Company may apply any remaining Net Cash Proceeds
to any purpose consistent with this Indenture, and following the consummation of
each Asset Sale Offer the Excess Proceeds amount shall be reset to zero.
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Notwithstanding, and without complying with, the foregoing
provi sions of this Section 10.16:
(u) the Company and its Subsidiaries may, in the ordinary course of
business, (a) convey, sell, transfer, assign or otherwise dispose of
inventory and other assets acquired and held for resale in the
ordinary course of business and (b) liquidate and otherwise dispose of
Cash Equivalents;
(v) the Company and its Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of property, businesses, or assets pursuant to and
in accordance with Article Eight.
(w) the Company and its Subsidiaries may sell or dispose of damaged, worn
out or other obsolete personal property in the ordinary course of
business so long as such property is no longer necessary for the
proper conduct of the business of the Company or such Subsidiary, as
applicable, and the Company and its Subsidiaries may replace personal
property in the ordinary course of business so long as the replacement
prop erty is necessary for the proper conduct of the business of the
Company or such Subsidiary, as applicable, and sell or dispose of such
replaced property in the ordinary course;
(x) the Company and its Subsidiaries may convey, sell, transfer, assign or
otherwise dispose of property, businesses, or assets to the Company or
any of its Subsidiaries;
(y) the Company and each of its Subsidiaries may
surrender or waive contract rights or settle, release or surrender
contract, tort or other claims of any kind in the ordinary course of
business or grant Liens not otherwise prohibited by the Indenture;
the Company and its Subsidiaries may ex-
change assets for property, businesses, or assets held by any Person
(including by merger or consolidation in the case of a Subsidiary of
the Company); provided that (a) property, businesses and assets, which
in one or a series of related transactions exceeds $15,000,000 in
value, received by the Company or such Subsidiaries in any such
exchange in the good faith reasonable judgment of the Supervisory Board
of the Company will immediately consti tute, be a part of, or be used
in, a Related Business of the Company or such
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Subsidiaries, (b) the Supervisory Board of the Company has determined
that the terms of any exchange, which in one or a series of related
transactions exceeds $15,000,000 in fair market value, are fair and
reasonable, and (c) any cash or Cash Equivalents received by the
Company or any Subsidiary in such exchange shall be treated as having
been received as a result of an Asset Sale.
All Net Cash Proceeds from an Event of Loss shall be used all within
the period and as otherwise provided above in clause (1) of the first paragraph
of this Section 10.16.
(3) Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the provisions
of any applicable securities laws, rules, or regulations conflict with the
provisions of this section, compliance by the Company or any of its subsidiaries
with such laws, rules or regulations shall not in and of itself cause a breach
of its obligations under this section.
(4) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Security is registered at the close of business on
such Record Date, and such interest (or Liquidated Damages, if applicable) will
not be payable to Holders who tender Securities pursuant to such Asset Sale
Offer.
SECTION 10.17 Limitation on Transactions with Affiliates. The
Company may not, and may not permit any Subsidiary on or after the Issue Date
to, enter into any contract, agreement, arrangement or transaction with any
Affiliate of the Company (an "Affiliate Transaction"), or any series of related
Affiliate Transac tions, other than Exempted Affiliate Transactions,
(1) unless it is determined by the Supervisory Board as
evidenced by a Board Resolution that the terms of such Affiliate Transaction are
fair and reasonable to the Company and no less favorable to the Company than
could have been obtained in an arm's length transaction with a non-Affiliate,
and
(2) if involving consideration to either party in excess of
$15,000,000 (or its foreign currency equivalent), unless such Affiliate
Transaction(s)
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is evidenced by an Officers' Certificate addressed and delivered to the Trustee
certifying that such Affiliate Transaction (or Affiliate Transactions) has been
approved by a majority of the members of the Supervisory Board of the Company
that are disinterested in such transaction, if there are any directors who are
so disinterested, and
(3) if involving consideration to either party in excess of
$15,000,000 or $30,000,000 if there are disinterested directors (or in each case
its foreign currency equivalent), unless in addition the Company, prior to the
consum mation thereof, obtains a written favorable opinion as to the fairness of
such transac tion to the Company from a financial point of view from an
independent investment banking firm of national reputation in the United States
or, if pertaining to a matter for which such investment banking firms do not
customarily render such opinions, an appraisal or valuation firm of national
reputation in the United States.
SECTION 10.18 Additional Amounts. All payments made by the
Company under or with respect to the Securities will be made free and clear of
and without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of any Taxing Authority within The
Netherlands, or within any other jurisdiction in which the Company is organized
or engaged in business, or any other jurisdiction if payments on the Securities
are made from within such jurisdiction (each of the above, a "Relevant Taxing
Jurisdiction"), unless the Company is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof.
If the Company is required to withhold or deduct any amount
for or on account of Taxes (other than any estate, inheritance, gift, sales,
excise, transfer, wealth or personal property tax, or any similar non-income
tax, assessment or governmental charge) imposed by a Taxing Authority within a
Relevant Taxing Jurisdiction, from any payment made under or with respect to the
Securities, the Company will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of such Additional Amounts) will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no such Additional Amounts shall be payable
with respect to a pay ment made to a Holder with respect to any Tax or portion
thereof that would not have been imposed, payable or due:
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(1) but for the existence of any present or former connection
between the Holder (or the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities) and The Netherlands or other
jurisdiction in which the Company is organized or engaged in business other than
the holding of the Securities;
(2) but for the failure of the Holder to use its reasonable
best efforts to comply upon written notice by the Company delivered 60 days
prior to any payment date with a request by the Company to satisfy any
certification, identifica tion or other reporting requirements which shall
include any applicable forms or instructions whether imposed by statute, treaty,
regulation or administrative practice concerning the nationality or residence of
the Holder or the connection of the Holder with The Netherlands or other
jurisdiction in which the Company is organized or engaged in business:
(i) provided that Holder's failure to comply with the
60 day requirement described above shall not relieve the Company of the
Company's obligation to pay Additional Amounts if the Holder's
application for any requested certification, identification or other
reporting requirement remains Outstanding or is otherwise pending and
the Holder continues to use its reasonable best efforts to obtain such
information;
(ii) provided, further that the Company shall pay any
Additional Amounts not paid on any payment date as a result of the
operation of this clause (2) upon the satisfaction of the relevant
certification, identification or other reporting requirements within 30
days after such payment date, provided that the Company shall not, as a
result of such satisfaction occurring after the payment date, have
already irrevocably paid to the relevant taxing authority the withheld
or deducted amount in respect of which such Additional Amounts would
have been payable;
(3) but for the failure of the Holder (or the beneficial
individual owner of, or individual ultimately entitled to obtain an interest in,
such Securities) who is an individual citizen or resident of a member state of
the European Union to comply with a written notice by the Company delivered 60
days prior to any pay ment date with a request by the Company to provide any
certification, identification or other reporting requirement, whether imposed by
statute, treaty, regulation or
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administrative practice, if such action would otherwise eliminate the
requirement for the withholding or deduction of Taxes; or
(4) if the beneficial owner of, or person ultimately entitled
to obtain an interest in, such Securities had been the Holder of the Securities
and would not be entitled to the payment of Additional Amounts (excluding the
impact of book entry procedures by the Depository or Common Depository).
In addition, Additional Amounts will not be payable with
respect to any Tax which is payable and so paid otherwise than by withholding or
deduction from payments of, or in respect of principal of, or any interest or
Liquidated Dam ages on, the Securities. The Company will remit the full amount
of any withholdings or deductions for or on account of Taxes to the relevant
Taxing Authority in accor dance with applicable law. The Company will make
reasonable efforts to obtain certified copies of tax receipts evidencing the
payment of any Taxes so deducted or withheld from each Taxing Authority imposing
such Taxes. The Company will furnish to the Holders, within 60 days after the
date the payment of any Taxes so deducted or withheld are due pursuant to
applicable law, either certified copies of tax receipts evidencing such payment
by the Company or, if such receipts are not obtainable, other evidence of such
payments by the Company. At least 30 days prior to each date on which any
payment under or with respect to the Securities is due and payable, if the
Company will be obligated to pay Additional Amounts with respect to such
payment, the Company will deliver to the respective Trustee an Officers'
Certificate stating (i) the fact that such Additional Amounts will be payable,
(ii) the amounts so payable and (iii) such other information necessary to enable
the Trustee to pay such Additional Amounts to the Holders of Securities on the
Interest Payment Date.
Wherever in this Indenture there is mentioned, in any context, the
payment of amounts based upon the principal amount at maturity of the Securities
or of princi pal, Accreted Value, premium, if any, interest or Liquidated
Damages, if any, or of any other amount payable under or with respect to any of
the Securities, such mention shall be deemed to include mention of the payment
of Additional Amounts to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof.
SECTION 10.19 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury law or other
law, which would
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prohibit or forgive the Company from paying all or any portion of the principal
of and/or interest, if any, on the Securities as contemplated herein, wherever
enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 10.20 Limitation on Lines of Business. Neither the
Company nor any of its Subsidiaries shall directly or indirectly engage to any
substantial extent in any line or lines of business activity other than that
which, in the reasonable good faith judgment of the Supervisory Board, is a
Related Business.
SECTION 10.21 Limitation on Status as an Investment Company.
The Company and its Subsidiaries shall not take any action or conduct their
business and operations in such a way as would cause them to be required to
register as an "investment company" (as that term is defined in the Investment
Company Act of 1940, as amended), or would otherwise cause them to become
subject to regulation under the Investment Company Act.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
(1) Optional Redemption of the Securities
The Securities will be redeemable at the option of the
Company, in whole or in part, at any time or from time to time on or after
August 1, 2004, upon not less than 30 nor more than 60 days' prior notice, at
the redemption prices (ex pressed as a percentage of Accreted Value thereof) set
forth below, plus accrued and unpaid interest (and Liquidated Damages, if any,)
thereon, if any, to the date of redemption:
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EAR REDEMPTION PRICE
2004 ....................... 106.250%
2005 ....................... 104.167%
2006 ....................... 102.083%
2007 and thereafter............. 100.000%
The Company will publish a redemption notice in accordance
with the procedures described under Section 1.6.
(2) Redemption Upon Equity Offering
Prior to August 1, 2002, upon an Equity Offering of Common
Stock for cash of the Company, up to 35% of the aggregate principal amount of
the Securities may be redeemed at the Company's option within 90 days of such
Equity Offering, on not less than 30 days, but not more than 60 days', notice to
each Holder of the Securities to be redeemed, with cash in an amount not in
excess of the Net Cash Proceeds of such Equity Offering, at a redemption price
equal to 112.500% of the Accreted Value thereof together with accrued and unpaid
interest and Liquidated Damages, if any, thereon to the Redemption Date;
provided, however, that immedi ately following such redemption not less than 65%
of the aggregate principal amount at maturity of the Securities remain
Outstanding and provided, further, that such redemption shall occur within 90
days after the date of the closing of such Equity Offering.
(3) Redemption For Changes In Withholding Taxes
The Company may, at its option, redeem all, but not less than
all, of the Securities then Outstanding, in each case at 100% of the Accreted
Value thereof, plus accrued and unpaid interest and Liquidated Damages, if any,
to the Redemption Date, if a Tax Event has occurred and is continuing. Notice of
any such redemption must be given within not less than 30 days nor more than 60
days prior to the redemption date. No redemption pursuant to this paragraph (3)
may be made unless, prior to the publication of any notice of redemption as a
result of a Tax Event, the Company delivers to the Trustee (i) an Officer's
Certificate stating that a Tax Event has occurred (irrespective of whether the
amendment or change is then effective), describing the facts leading thereto and
stating that the Company cannot avoid the requirement to pay Additional Amounts
by taking reasonable measures available to it and (ii) an opinion of counsel
reasonably acceptable to the Trustee to the effect that the Company is or will
become obligated to pay Additional Amounts as a result of such change or
amendment.
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(4) Mandatory Redemption
The Company is not required to make mandatory redemption pay
ments or sinking fund payments with respect to the Securities.
SECTION 11.2 Applicability of Article. Redemption of
Securities at the election of the Company or otherwise, as permitted or required
by any provision of this Indenture, shall be made in accordance with such
provision and this Article Eleven.
SECTION 11.3 Election to Redeem; Notice to Trustee. The
election of the Company to redeem any Securities pursuant to Section 11.1 shall
be evidenced by a Board Resolution. In case of any redemption at the election of
the Company, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date and of the principal amount
at maturity of Securi ties to be redeemed and shall deliver to the Trustee such
documentation and records as shall enable the Trustee to select the Securities
to be redeemed pursuant to Section 11.4.
SECTION 11.4 Selection by Trustee of Securities to Be
Redeemed. If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 30 days prior to the
Redemption Date by the Trustee, from the Outstanding Securities not previously
called for redemption pro rata, by lot or by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions of the principal amount at maturity of Securities; provided,
however, that no such partial redemption shall reduce the portion of the
principal amount at maturity of a Security not re deemed to less than $1,000.
The Trustee shall promptly notify the Company in writing of
the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount at maturity thereof to be
redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to
the portion of the principal amount at maturity of such Security which has been
or is to be redeemed.
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SECTION 11.5 Notice of Redemption. Notice of redemption shall
be given in the manner provided for in Section 1.6 not less than 30 nor more
than 60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
Each notice of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to
the Redemption Date payable as provided in Section 11.7, if any,
(3) if less than all Outstanding Securities are to be
redeemed, the identification (and, in the case of a partial redemption, the
principal amount at maturity) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that
on and after the Redemption Date, upon surrender of such Security, the Holder
will receive, without charge, a new Security or Securities of authorized
denominations for the principal amount at maturity thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and
accrued interest, if any, to the Redemption Date payable as provided in Section
11.7) will become due and payable upon each such Security, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue and that
the Accreted Value of the Securities will cease to increase on and after said
date, and
(6) the place or places where such Securities are to be
presented and surrendered for payment of the Redemption Price and accrued
interest, if any.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company.
SECTION 11.6 Deposit of Redemption Price. Prior to any Redemp
tion Date, the Company shall deposit with the Trustee or with a Paying Agent
(or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 10.3) an amount of money sufficient to pay the
Redemption Price of, and accrued interest on, all the Securities which are to be
redeemed on that date.
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SECTION 11.7 Securities Payable on Redemption Date. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest and Liquidated Damages, if
any, to the Redemption Date), and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security for
redemption in accordance with said notice, such Security shall be paid by the
Company at the Redemption Price, together with accrued interest, if any, to the
Redemption Date; provided, however, that installments of interest whose Stated
Maturity is on or prior to the Redemption Date shall be payable to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 3.7.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal or Accreted Value (and
premium, if any) shall, until paid, accrete or bear interest from the Redemption
Date at the rate of accretion of or interest rate borne by the Securities.
SECTION 11.8 Securities Redeemed in Part. Any Security which
is to be redeemed only in part shall be surrendered at the office or agency of
the Company maintained for such purpose pursuant to Section 10.2 (with, if the
Com pany or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in writing),
and the Com pany shall execute, and the Trustee shall authenticate and deliver
to the Holder of such Security without service charge, a new Security or
Securities, of any authorized denomination as requested by such Holder, in
aggregate principal amount at maturity equal to and in exchange for the
unredeemed portion of the principal amount at maturity of the Security so
surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
Defeasance. The Company may, at its option by Board Resolution, at any time
prior to the Stated Maturity of the Securities, with respect to the Securities,
elect to have
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either Section 12.2 or Section 12.3 be applied to all Outstanding Securities
upon compliance with the conditions set forth below in this Article Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Company's
exercise under Section 12.1 of the option applicable to this Section 12.2, the
Com pany shall be deemed to have been discharged from its obligations with
respect to all Outstanding Securities on the date the conditions set forth in
Section 12.4 are satisfied (hereinafter, "Defeasance"). For this purpose, Legal
Defeasance means that the Company shall be deemed to have paid and discharged
the entire Indebtedness represented by the Outstanding Securities, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 12.5
and the other Sections of this Indenture referred to in clauses (A) and (B)
below, and to have satisfied all its other obligations under such Securities and
this Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder: (A) the rights of Holders of Outstanding Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal or Accreted
Value of, premium, if any, and interest (and Liquidated Damages, if any) on such
Securities when such payments are due and any rights of the Holders with respect
to such amounts, (B) the Company's obligations with respect to such Securi ties
under Sections 3.4, 3.5, 3.6, 10.2 and 10.3; (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article Twelve.
Subject to compliance with this Article Twelve, the Company may exercise its
option under this Section 12.2 notwithstanding the prior exercise of its option
under Section 12.3 with respect to the Securities.
SECTION 12.3 Covenant Defeasance. Upon the Company's exercise
under Section 12.1 of the option applicable to this Section 12.3, the Company
shall be released from its obligations under any covenant contained in Section
8.1 and in Sections 10.8 through 10.18 with respect to the Outstanding
Securities ("Covenant Defeasance") on and after the date the conditions set
forth below are satisfied, and the Securities shall thereafter be deemed not to
be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "Outstanding"
for all other purposes hereunder. For this purpose, Covenant Defeasance means
that, with respect to the Outstanding Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
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any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 5.1(3), 5.1(4) and 5.1(5), but, except as specified above, the
remainder of this Indenture and such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section 12.2 or
Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to
be deposited with the Trustee (or another Trustee satisfying the requirements of
Section 6.8 who shall agree to comply with the provisions of this Article Twelve
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifi cally pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities: (A) U.S. legal tender (with
respect to the Securities), legal tender in the countries constituting the
European Monetary Union (with respect to the Euro Denominated Securities), or
(B) U.S. Government Obligations (with respect to the Securities) or (C) a
combination thereof, sufficient, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying Trustee) to pay and discharge, the principal or
Accreted Value of (and premium, if any) and interest on the Outstanding
Securities on the Stated Maturity (or Redemption Date, if applicable) of such
principal or Accreted Value (and premium, if any) or installment of interest;
provided that the Holders of Securities must have a valid, perfected, exclusive
security interest in such trust.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of
Section 5.1 are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such Defeasance or Covenant Defeasance shall not result in
a breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound.
(4) In the case of an election under Section 12.2, the Company
shall have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee stating that (x) the Company has received from, or there has been
published
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by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture, there has been a change in the applicable U.S.federal income tax law,
in either case to the effect that, and based thereon such opinion shall confirm
that, the Holders of the Outstanding Securities will not recognize income, gain
or loss for U.S. federal income tax purposes as a result of such Defeasance and
will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such Defeasance had
not occurred.
(5) In the case of an election under Section 12.3, the Company
shall have delivered to the Trustee an opinion of counsel reasonably acceptable
to the Trustee to the effect that (i) the Holders of the Outstanding Securities
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such Covenant Defeasance and will be subject to U.S. federal income
tax on the same amounts, in the same manner and at the same times as would have
been the case if such Covenant Defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the Company with
the intent of preferring the Holders of such Outstanding Securities over any
other of the Com pany's creditors or with the intent of defeating, hindering,
delaying or defrauding any other of the Company's creditors or others; and
(7) The Company shall have delivered to the Trustee an
Officers' Certificate stating that all conditions precedent provided for
relating to either the Defeasance under Section 12.2 or the Covenant Defeasance
under Section 12.3 (as the case may be) have been complied with; and, in the
case of the opinion of counsel, that paragraphs (1) (with respect to the
validity and perfection of the security interest), (2), (3) and (5) of this
Section 12.4 have been complied with, and the Company shall have delivered to
the Trustee an Officers' Certificate, subject to such qualifications and
exceptions as the Trustee deems appropriate, to the effect that, assuming no
Holder of the Securities is an insider of the Company, the trust funds will not
be subject to the effect of any applicable Federal bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally.
SECTION 12.5 Deposited Money and U.S. Government Securities to
Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of
the last paragraph of Section 10.3, all money and U.S. Government Obligations
(includ ing the proceeds thereof) deposited with the Trustee (or other
qualifying Trustee, collectively for purposes of this Section 12.5, the
"Trustee") pursuant to Section 12.4 in respect of the Outstanding Securities
shall be held in trust and applied by the
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Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities of all sums due and to become due
thereon in respect of principal or Accreted Value, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee and (if
applicable) its officers, directors, employees and agents against any tax, fee
or other charge imposed on or assessed against the U.S. Government Securities
deposited pursuant to Section 12.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or U.S. Government Obligations held by it as
provided in Section 12.4 which, in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would then
be required to be deposited to effect an equivalent Defeasance or Covenant
Defeasance, as applicable, in accordance with this Article Twelve.
SECTION 12.6 Reinstatement. If the Trustee or any Paying Agent
is unable to apply any money in accordance with Section 12.5 by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 12.5; provided, however, that if the Company makes any
payment of principal or Accreted Value of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
122
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Inden
ture to be duly executed all as of the day and year first above written.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/
Name:
Title:
Citibank, N.A. (London Branch), Trustee
By: /s/
Name:
Title:
123
<PAGE>
EXHIBIT A
[FORM OF SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE
IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGIS TERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A
DEPOSITARY (AND ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRE SENTATIVE OF A DEPOSITARY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, A NOMI NEE OF A DEPOSITARY,
HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY
(OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECU RITIES 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 REGISTRA TION REQUIREMENTS OF THE SECURITIES. ACT. BY ITS
ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECU RITIES ACT ("RULE
144A")) (A "QIB"), (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS
TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE
SECURI TIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY
ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS
SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY,
AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY
OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS
BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
AC COUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER
IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
PERSONS THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGU LATION S UNDER
THE SECURITIES ACT ("REGULATION S") OR (E) PUR SUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRA TION REQUIREMENTS OF THE SECURITIES ACT, IN EACH
CASE IN AC CORDANCE ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES OR ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH
PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES
(C), (D) AND (E) ABOVE ARE SUBJECT TO THE COM PANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFAC TORY TO EACH
OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE
RESALE RESTRICTION TERMINA TION DATE. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION",
A-1
<PAGE>
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITU TIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPA NIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURI TIES.
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT
("OID") UNDER SECTION 1272 ET SEQ. OF THE U.S. INTERNAL REVENUE
CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS SECURITY IS
JULY 30, 1999. THE ISSUE PRICE OF THIS SECURITY IS $545.21 PER $1,000
STATED PRINCIPAL AMOUNT DUE AT MATURITY. THE YIELD TO MATU
RITY OF THIS SECURITY IS 12 1/2% PER ANNUM COMPUTED ON A SEMI-
ANNUAL BOND EQUIVALENT BASIS AND CALCULATED FROM JULY 30,
1999. THE AMOUNT OF OID ON THIS SECURITY IS $454.79.
A-2
<PAGE>
United Pan-Europe Communications N.V.
$735,000,000
12 1/2% Senior Discount Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] $ [ ]
United Pan-Europe Communications N.V., a company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of [ ]
DOLLARS, which amount includes amortization of original issue discount, on
August 1, 2009.
Interest Payment Dates: February 1 and August 1.
Record Dates: January 15 and July 15.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to
be signed manually or by facsimile by its duly authorized officer.
Dated: July 30, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________
Authorized Signatory
A-4
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: July 30, 1999
This is one of the Securities referred to in the
within-mentioned Indenture.
CITIBANK N.A.
as Trustee
By:
Authorized Signatory
A-5
<PAGE>
[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$735,000,000
12 1/2 % SENIOR DISCOUNT NOTE DUE 2009
1. Method of Payment. The initial Accreted Value will increase
at the rate of 12 1/2% per annum, compounded semi-annually, on the Securities.
Payment of the principal of, or premium, if any, on the Securities or such
lesser amount payable upon the acceleration of the maturity of the Securities
will include accrued amortiza tion of original issue discount. Interest payable
in cash will commence to accrue on February 1, 2004, and will be payable on each
February 1 and August 1. Interest will be paid upon overdue principal and
premium, and interest, if any, compounded semi-annually from the due date at the
rate borne by the Securities to the extent such payment is lawful.
The Holder must surrender this Security to a Paying Agent to
collect payments. The principal of, Accreted Value, interest and premium, if
any, on the Securities will be payable at the office or agency of the Company
maintained for such purpose within the City and State of New York or, at the
option of the Company, payment may be made by check mailed to the Holders of the
Securities at their respective addresses set forth in the register of Holders of
Securities. Until otherwise designated by the Company, the Company's office or
agency in New York will be the office of the Trustee maintained for such
purpose. All payments shall be in coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts.
2. Paying Agent and Registrar. Initially, Citibank N.A. (the
"Trustee") will act as Paying Agent and Registrar and Banque Internationale a
Luxembourg will act as Paying Agent in Luxembourg. The Company may change any
Paying Agent or Registrar without notice. The Company or any of its Subsidiaries
may, subject to certain exceptions, act as Registrar.
3. Indenture. The Company issued $735,000,000 12 1/2% Senior
Discount Notes due 2009 (the "Securities") under an Indenture dated as of July
30, 1999 (the "Indenture") between the Company and the Trustee. This is one of
an issue of Securities of the Company issued, or to be issued, under the
Indenture. The terms of the Securities include those stated in the Indenture and
those made part of the
A-6
<PAGE>
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code ss.ss.
77aaa- 77bbbb), as amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. Capitalized and certain other terms used herein and not
otherwise defined have the meanings set forth in the Indenture. To the extent of
any conflict between the terms of the Securities and the Indenture, the
applicable terms of the Indenture shall govern.
4. Additional Amounts. The Company will pay to the Holders of
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
5. Optional Redemption of the Securities. The Securities will
be redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after August 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of Accreted Value thereof) if redeemed during
the 12- month period beginning on August 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
REDEMPTION
YEAR PRICE
----------------------------
2004 ........................... 106.250%
2005 ........................... 104.167%
2006 ........................... 102.083%
2007 and thereafter................. 100.000%
6. Redemption Upon Equity Offering. Prior to August 1, 2002,
upon an Equity Offering of Common Stock for cash of the Company, up to 35% of
the aggregate principal amount at maturity of the Securities may be redeemed at
the Company's option within 90 days of such Equity Offering, on not less than 30
days', but not more than 60 days', notice to each Holder of the Securities to be
redeemed, with cash in an amount not in excess of the Net Cash Proceeds of such
Equity Offering, at a redemption price equal to 112.500% of the Accreted Value
thereof together with accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that immediately
following such redemp tion not less than 65% of the aggregate principal amount
at maturity of the Securities remain Outstanding and provided, further, that
such redemption shall occur within 90 days after the date of the closing of such
Equity Offering.
A-7
<PAGE>
7. Redemption for Changes in Withholding Taxes. The Company
may, at its option, redeem all, but not less than all, of the Securities then
Outstanding, at 100% of the Accreted Value of the Securities redeemed, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date, if a Tax Event has occurred and is continuing.
8. Mandatory Redemption. The Company is not required to make
mandatory redemption payments or sinking fund payments with respect to the
Securities.
9. Notice of Redemption. Notice of redemption will be mailed
within not less than 30 days nor more than 60 days prior to the Redemption Date
to each Holder of Securities to be redeemed at his registered address. On and
after the Redemption Date, unless the Company defaults in making the redemption
payment, interest ceases to accrue, and, if applicable, the Accreted Value will
cease to increase, on Securities or portions thereof called for redemption.
10. Purchase of Securities upon Change of Control. The
Indenture provides that upon the occurrence of a Change of Control and subject
to further limitations contained therein, the Company shall make an offer to
purchase Outstand ing Securities in accordance with the procedures set forth in
the Indenture.
11. Registration Rights. Pursuant to a Registration Rights
Agreement, dated July 30, 1999, among the Company and the Initial Purchasers
named therein, the Company will be obligated to consummate an Exchange Offer
pursuant to which the Holder of this Security shall have the right to exchange
this Security for notes of a separate series issued under the Indenture which
have been registered under the Securities Act, in like principal amount at
maturity and having substantially identical terms as the Securities. The Holders
shall be entitled to receive certain payments in the event such Exchange Offer
is not consummated ("Liquidated Damages") and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
12. Denominations, Transfer, Exchange. The Securities are in
registered form, without coupons, in denominations of $1,000 and integral
multiples of $1,000. A Holder may transfer or exchange Securities in accordance
with the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay to it any
taxes and fees required by law or permitted by the Indenture. Under certain
circumstances set forth
A-8
<PAGE>
in the Indenture, the Registrar need not register the transfer of or exchange
any Securities.
13. Persons Deemed Owners. The registered Holder of this
Security may be treated as the owner of this Security for all purposes.
14. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, all
liability of the Trustee and any such Paying Agent with respect to such money
shall cease.
15. Amendment, Supplement, Waiver, Etc. The Company and the
Trustee may, without the consent of the Holders of any Outstanding Securities,
amend, waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsisten cies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount at
maturity of the Outstanding Securities and with other holders of notes of other
series issued under the Indenture, subject to certain exceptions requiring the
consent of the Holders of the particular Securities to be affected.
16. Restrictive Covenants. The Indenture imposes certain
limitations on the ability of the Company and its Subsidiaries to, among other
things, incur additional Indebtedness, make Restricted Payments, make certain
Investments, create or incur Liens, enter into transactions with Affiliates,
enter into agreements restricting the ability of Subsidiaries to pay dividends
and make distributions and on the ability of the Company to merge or consolidate
with any other person or transfer all or substantially all of the Company's
assets. Such limitations are subject to a number of important qualifications and
exceptions. Pursuant to the Indenture, the Company must annually report to the
Trustee on compliance with such limitations.
17. Defaults and Remedies. Events of Default are set forth in
the Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Com pany) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount at maturity of the Outstanding
Securities under the Indenture may, by written notice to the Trustee and the
Company, and the Trustee upon the request of the Holders of not less than 25% in
aggregate principal amount at maturity of the Outstanding Securities shall,
declare all principal of and accrued
A-9
<PAGE>
interest on all Securities to be immediately due and payable and such amounts
shall become immediately due and payable.
18. Trustee Dealings with Company. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Company or its Affiliates and may otherwise deal with
the Company or its Affiliates, as if it were not Trustee.
19. No Recourse Against Others. No board member, director,
officer, employee, agent, authorized representative, incorporator or shareholder
of the Company shall have any liability for any obligations of the Company under
the Securities or the Indenture for a claim based on, in respect of, or by
reason of, such obligations or their creation by reason of his, her or its
status as such. Each Holder of Securities by accepting a Security waivers and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
20. Discharge. The Company's obligations pursuant to the
Indenture will be discharged, except for obligations pursuant to certain
provisions thereof, subject to the terms of the Indenture, upon the payment of
all the Securities or upon the irrevocable deposit with the Trustee of U.S.
Dollars or U.S. Government Securi ties denominated in U.S. Dollars sufficient to
pay when due principal of and interest on the Securities to maturity or
redemption.
21. Authentication. This Security shall not be valid until the
Trustee signs the certificate of authentication on the other side of this
Security.
22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT
LIMITATION SECTION 5-1401 AND 5- 1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCA BLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY,
A-10
<PAGE>
JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCA BLY WAIVES, TO THE
FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY
AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEED ING BROUGHT IN ANY SUCH COURT HAS
BEEN BROUGHT IN AN INCON VENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW
OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY
OTHER JURIS DICTION. The Trustee, the Company and the Holders agree to submit to
the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Securities.
23. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (=
Uniform Gifts to Minors Act).
24. Currency of Account. U.S. Dollars are the sole currency
of account and payment for all sums payable by the Company under the Securities.
25. CUSIP, ISIN and Common Code Numbers. The Company has
caused CUSIP, ISIN and Common Code numbers, as applicable, to be printed on the
Securities and the Trustee may use CUSIP, ISIN or Common Code numbers, as
applicable, in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed hereon.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
A-11
<PAGE>
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
of
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
|_| (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
A-12
<PAGE>
|_| (b) this Security is being transferred other than in accordance with
(a) above and documents, including a transferee certificate
substantially in the form attached hereto, are being furnished which
comply with the conditions of transfer set forth in this Security and
the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b)
above, if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: Your signature:
(Sign exactly as your name appears on the other
side of this Security)
By:
NOTICE: To be executed by an executive officer
Signature Guaranteed:
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable to the
Trustee)
A-13
<PAGE>
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to which it
exercises sole investment discretion and that it and any such account is a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act and is aware that the sale to it is being made in reliance on
Rule144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A (including the
information specified in Rule 144A(d)(4)) or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated:
NOTICE: To be executed by an executive
officer
A-14
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Principal
Amount of Amount of Amount
decrease in increase in at maturity
Principal Principal of this
Amount Amount Global Secu
at maturity at maturity rity Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ------------- ------------- ------------ -------------- ----------------
Initial bal- $ [ ]
ance as of
07/30/99
<PAGE>
EXHIBIT B
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Sections 3.13(b)(ii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 12 1/2% Senior Discount
Notes due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, (the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$]______ principal amount at maturity
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
[CUSIP][CINS][ISIN] No(s). ________________________________
CERTIFICATE No(s). _________________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
B-1
<PAGE>
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions.
Accordingly, the Owner hereby further certifies as follows:
1. the Owner is not a distributor of the Specified Securities,
an Affiliate of the Company or any such distributor or a person acting on behalf
of any of the foregoing;
2. the offer of the Specified Securities was not made to a
person in the United States;
3 either:
(a) at the time the buy order was originated, the Transferee
was outside the United States or the Owner and any person acting on its behalf
reasonably believed that the Transferee was outside the United States; or
(b) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities market and
neither the Owner nor any person acting on its behalf knows that the
transactions have been prearranged with a buyer in the United States;
4. no directed selling efforts have been made in the United
States by or on behalf of the Owner or any Affiliate thereof;
5. if the Owner is a dealer in securities or has received a
selling concession, fee or other remuneration in respect of the Specified
Securities, and the transfer is to occur during the Restricted Period, then the
requirements of Rule 904(c)(1) have been satisfied;
6. the transaction is not part of a plan or scheme to evade
the registration requirements of the Securities Act; and
7. upon completion of the transaction, the beneficial interest
being transferred will be held through an Agent Member acting for and on behalf
of Euroclear or Cedelbank.
B-2
<PAGE>
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned,
as such term is defined in the
second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
B-3
<PAGE>
EXHIBIT C
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(Transfers Pursuant to Sections 3.13(b)(iii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 12 1/2% Senior Discount
Notes due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A., as trustee, ( the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$]_____ principal amount at maturity
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Regulation S
C-1
<PAGE>
Global Security. In connection with such transfer, the Owner hereby certifies
that such transfer is being effected in accordance with Rule 904 or Rule 144
under the Securities Act and with all applicable securities laws of the states
of the United States and other jurisdictions. Accordingly, the Owner hereby
further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in
accordance with Rule 904:
(A) the Owner is not a distributor of the Specified
Securities, an Affiliate of the Company or any such
distributor or a person acting on behalf of any of the
foregoing;
(B) the offer of the Specified Securities was not made
to a person in the United States;
(C) either:
(i) at the time the buy order was originated,
the Transferee was outside the United States or the
Owner and any person acting on its behalf reasonably
believed that the Transferee was outside the United
States; or
(i) the transaction is being executed in, on or
through the facilities of the Eurobond market, as
regulated by the Associa tion of International Bond
Dealers, or another designated offshore securities
market and neither the Owner nor any person acting on
its behalf knows that the transactions has been
prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the
United States by or on behalf of the Owner or any Affiliate
thereof;
(E) if the Owner is a dealer in securities or has
received a selling concession, fee or other remuneration in
respect of the Specified Securities, and the transfer is to
occur during the Restricted Period, then the requirements of
Rule 904(c)(1) have been satisfied; and
(F) the transaction is not part of a plan or scheme to
evade the registration requirements of the Securities Act.
C-2
<PAGE>
(2) Rule 144 Transfers. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after [date one year after
the latest date of issuance of any of the Specified
Securities] and is being effected in accordance with the
applicable amount, manner of sale and notice requirements of
Rule 144; or
(B) the transfer is occurring after [date two years
after the latest date of issuance of any of the Specified
Securities] and the Owner is not, and during the preceding
three months has not been, an Affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
C-3
<PAGE>
EXHIBIT D
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers to QIBs Pursuant to Sections 3.13(b)(iv) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V 12 1/2% Senior Discount
Notes due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of July 30, 1999
between the Company and Citibank, N.A. as trustee, (the "Indenture"). Terms used
but not defined herein and defined in Regulation S under the U.S. Securities Act
of 1933 (the "Securities Act") or in the Indenture shall have the meanings given
to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$]______ principal amount at maturity
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the "Undersigned")
hereby certifies that either (i) it is the sole beneficial owner of the
Specified Securities or (ii) it is acting on behalf of all the beneficial owners
of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the appropriate Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner.
D-1
<PAGE>
The Owner has requested that the Specified Securities be transferred to
a person (the "Transferee") who will take delivery in the form of an interest in
the Restricted Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdic tions. Accordingly, the Owner
hereby further certifies as follows:
(1) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A,
acquiring for its own account or for the account of a qualified
institutional buyer; and
(2) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner
may be relying on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this certifi
cate.)
By:
Name:
Title:
(If the Undersigned is a
Corporation, partnership or
fiduciary, the title of the person
signing on behalf of the Undersigned
must be stated.)
D-2
<PAGE>
EXHIBIT E
UNITED PAN-EUROPE
COMMUNICATIONS N.V.
OFFICERS' CERTIFICATE
[Name], [title(s)] of United Pan-Europe Communications N.V. a public
limited liability company organized and existing under the laws of The
Netherlands (the "Company"), and [name], [title(s)] of the Company, hereby
certify pursuant to Sections ____ and ____ of the Indenture, dated as of
___________, ____ (the "Indenture"), between the Company and Citibank, N.A., as
trustee (the "Trustee"), that:
(i) he or she has read and understands the provisions of the Indenture
and the definitions relating thereto, (ii) the statements made in this Officers'
Certificate are based upon an examination of the provisions of the Indenture and
upon the relevant books and records of the Company, (iii) in his or her opinion,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not the covenants and
conditions of the Indenture relating to the [authentication of the Securities]
[execution of the Indenture] [OTHER] have been complied with and (iv) in his or
her opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, each of the undersigned has executed this
Certificate on this ____ day of ____________, ____.
By:
Name:
Titles:
By:
Name:
Titles:
E-1
<PAGE>
EXHIBIT F
[Date]
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Ladies and Gentlemen:
We have acted as special counsel to United Pan-Europe Communications
N.V., a company with limited liability organized and existing under the laws of
The Netherlands (the "Company"), in connection with the [initial issuance and
sale by the Company of $735,000,000 aggregate principal amount at maturity of
the Company's 12 1/2% Senior Discount Notes due 2009 (the "Securities"), which
will be issued under an Indenture, dated as of July 30, 1999 (the "Indenture"),
between the Company and Citibank, N.A. as trustee (the "Trustee")].
This opinion is being furnished to your pursuant to Sections ____ and
____ of the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such letter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to any
facts material to the opinions expressed herein which we did not independently
establish or verify, we have relied upon oral or written statements or
representations of officers and other representatives of the Company and others.
Pursuant to Sections ____ and ____ of the Indenture, we advise you that
in our opinion:
F-1
<PAGE>
1. We have reviewed Article __ of the Indenture setting forth certain
provisions of general application, and in particular, the pertinent provisions
of Section ___ of the Indenture setting forth the definitions of certain terms,
and Sections ___ and ___ of the Indenture providing that the Trustee is entitled
to receive an Officers' Certificate and an Opinion of Counsel in connection with
any request by the Company to take any action and setting forth certain
requirements with respect to the forms of such documents. We have also reviewed
Article ___ of the Indenture, pertaining to ____.
2. In our opinion, we have made such examination or investigation
(including an examination of the Officers' Certificate of the Company, dated as
of the date hereof, as to the matters addressed in Sections ___ and ___ of the
Indenture) as we deem necessary to enable us to express an informed opinion as
to whether or not the conditions precedent to [the authentication of the
Securities] [the execution of the Indenture] [OTHER] under Section ___ of the
Indenture have been complied with.
3. In our opinion, the conditions precedent to be satisfied with
respect to the [authentication of the Securities] [execution of the Indenture]
[OTHER] under Section __ of the Indenture have been complied with.
Members of our firm are admitted to the bar in the States of ______ and
New York, and we do not express any opinion as to the laws of any jurisdiction
other than the laws of such States and the General Corporation Law of the State
of Delaware and the laws of the United States of America.
This opinion is furnished to you solely for your benefit in connection
with the [authentication of the Securities] [execution of the Indenture] [OTHER]
and is not to be relied upon by any other person without our express written
permission.
Very truly yours,
F-2
<PAGE>
EXHIBIT G
FORM OF CERTIFICATE TO BE
DELIVERED IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
(Transfers Pursuant to Section 3.14(a) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 12 1/2% Senior Discount
Notes due 2009 (the "Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of July
30, 1999 between the Company and Citibank, N.A. as trustee (the "Indenture").
Terms used but not defined herein have the meanings given to them in the
Indenture.
This certificate relates to [U.S. $]____ principal amount at
maturity of Securities, which are evidenced by the following certificate(s) (the
"Securities"):
1. We understand that the Securities have not been registered
under the Securities Act of 1933, as amended (the "Securities Act"), and may not
be sold except as permitted in the following sentence. We understand and agree,
on our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Securities are being offered only in a
transaction not involving any public offering within two years after the date of
the original issuance of the Securities or if within three months after we cease
to be an affiliate (within the meaning of Rule 144 under the Securities Act) of
the Company, such Securities may be resold, pledged or transferred only (i) to
the Company, (ii) so long as the Securities are eligible for resale pursuant to
Rule 144A under the Securities Act ("Rule 144A"), to a person whom we reasonably
believe is a "qualified institution buyer" (as defined in Rule 144A) ("QIB")
that purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule 144A
(as indicated by the box checked by the transferor on the Certificate of
Transfer on the reverse of the certificate for the
G-1
<PAGE>
Securities), (iii) in an offshore transaction in accordance with Regulation S
under the Securities Act (as indicated by the box checked by the transferor on
the Certificate of Transfer on the reverse of the Note if the Note is not in
book-entry form), and, if such transfer is being effected by certain transferors
prior to the expiration of the "40-day distribution compliance period" (within
the meaning of Rule 903(b)(2) of Regulation S under the Securities Act), a
certificate that may be obtained from the Trustee is delivered by the
transferee, (iv) to an institution that is an "accredited investor" as defined
in Rule 501(a)(1), (2), (3) or (7) under the Securities Act (as indicated by the
box checked by the transferor on the Certificate of Transfer on the reverse of
the certificate for the Securities) which has certified to the Company and the
Trustee for the Securities that it is such an accredited investor and is
acquiring the Securities for investment purposes and not for distribution
(provided that no Securities purchased from a foreign purchaser or from any
person other than a QIB or an institutional accredited investor pursuant to this
clause (iii) shall be permitted to transfer any Securities so purchased to an
institutional accredited investor pursuant to this clause (iv) prior to the
expiration of the "applicable restricted period" (within the meaning of
Regulation S under the Securities Act), (v) pursuant to an exemption from
registration under the Securities Act provided by Rule 144 (if applicable) under
the Securities Act, or (vi) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States, and we will notify any
purchaser of the Securities from us of the above resale restriction, if then
applicable. We further understand that in connection with any transfer of the
Securities by us that the Company and the Trustee for the Securities may
request, and if so requested we will furnish, such certificates, legal opinions
and other information as they may reasonably require to confirm that any such
transfer complies with the foregoing restrictions.
2. We are able to fend for ourselves in the transactions
contemplated by this Offering Circular, we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment and
can afford the complete loss of such investment.
3. We understand that the Company, Goldman Sachs
International, Donaldson, Lufkin & Jenrette Securities International, Morgan
Stanley & Co. International Limited, TD Securities (USA) Inc., Bank of America
International Limited, Chase Manhattan International Limited, CIBC World Markets
Corp., Credit Suisse First Boston (Europe) Limited, Merrill Lynch International
and Salomon Brothers Interna tional Limited as the initial purchasers of the
Securities ("Initial Purchasers"), and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and agreements and we
agree that if any of the acknowledgments, representations and
G-2
<PAGE>
warranties deemed to have been made by us by our purchase of Securities, for our
own account or of one or more accounts as to each of which we exercise sole
investment discretion, are no longer accurate, we shall promptly notify the
Company and the Initial Purchasers.
4. We are acquiring the Securities purchased by us for
investment purposes and not for distribution of our own account or for one or
more accounts as to each of which we exercise sole investment discretion and we
are or such account is an institutional "accredited investor" (as defined in
rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act).
5. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby.
Very truly yours,
(Name of Purchaser)
By:
Date:
G-3
<PAGE>
EXHIBIT H
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 of the Indenture, check the box:
|_| Section 10.10
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, state the amount:
[$ (multiple of $1000)]
[(U) (multiple of (U) 1000)]
Dated: Your Signature:
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed:
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable to the
Trustee)
0100510.02-LondonS1A
H-1
<PAGE>
CONFORMED COPY
- --------------------------------------------------------------------------------
DATED 27 JULY 1999
- --------------------------------------------------------------------------------
Borrowers
UPC FACILITY B.V.
TELEKABEL WIEN GmbH
JANCO MULTICOM A/S (1)
Guaranteed by
UPC FACILITY B.V.
STIPDON INVESTMENTS B.V.
RADIO PUBLIC S.A.
CABLE-NETWORKS AUSTRIA HOLDING, B.V.
TELEKABEL HUNGARY N.V. (2)
Arranged by
BANK OF AMERICA INTERNATIONAL LIMITED
CIBC WORLD MARKETS PLC
CITIBANK, N.A.
MEESPIERSON N.V.
PARIBAS
THE ROYAL BANK OF SCOTLAND PLC
TORONTO DOMINION BANK EUROPE LIMITED (3)
The BANKS (4)
Agent
THE TORONTO-DOMINION BANK (5)
Security Agent
THE TORONTO-DOMINION BANK (6)
----------------------------------------
LOAN AND NOTE ISSUANCE AGREEMENT
for Facilities of up to Euro 1,000,000,000
----------------------------------------
Norton Rose
London
<PAGE>
CONTENTS
Clause Heading Page
1 Purpose and interpretation........................................1
1.1 Purpose..................................................1
1.2 Definitions..............................................2
1.3 Headings................................................31
1.4 Construction of certain terms...........................31
1.5 Majority Banks..........................................32
1.6 Agent's opinion.........................................33
1.7 Bank's Commitments......................................33
2 The Facilities...................................................34
2.1 Amount..................................................34
2.2 Obligations several.....................................34
2.3 Interests several.......................................34
2.4 Telekabel Wien's interests several......................34
2.5 Janco's interests several...............................35
3 Conditions.......................................................36
3.1 Documents and evidence..................................36
3.2 General conditions precedent............................36
3.3 Waiver of conditions precedent..........................36
3.4 Notification............................................37
3.5 Existing UPC Security...................................37
3.6 Conditions subsequent...................................37
4 Drawings.........................................................38
4.1 Maximum Outstandings....................................38
4.2 Drawdown................................................39
4.3 Term and Amount of Revolving Drawings...................39
4.4 Term and Amount of Term Drawings........................40
4.5 Selection of currencies.................................40
4.6 Limit on currencies; non-availability...................40
4.7 Currency Amounts........................................40
4.8 Notification to Banks...................................41
4.9 Repayment of Revolving Drawings.........................41
4.10 Division and consolidation of Term Drawings.............41
4.11 Initial Drawings........................................42
4.12 Revaluation of Term Drawings in Optional Currency.......42
4.13 Application of proceeds.................................43
4.14 Telekabel Notes.........................................43
4.15 Subsidiary Drawings.....................................44
5 Interest; alternative interest rates.............................45
5.1 Normal interest rate....................................45
5.2 Applicable Margin.......................................45
5.3 Interest Periods........................................46
5.4 Selection of Interest Periods for Term Drawings.........46
5.5 Determination of Interest Periods for Term Drawings.....46
5.6 Interest for late payment...............................46
5.7 Notification of interest periods and interest rates.....47
5.8 Reference Bank quotations...............................47
5.9 Market disruption; non-availability.....................48
6 Repayment, prepayment and cancellation...........................50
6.1 Repayment of Revolving Drawings.........................50
6.2 Reduction of Tranche A Commitment.......................50
6.3 Repayment of the Facility B Loan........................51
6.4 Voluntary prepayment....................................52
6.5 Additional voluntary prepayment.........................52
6.6 Mandatory prepayment....................................52
6.7 Application and amounts payable on prepayment...........55
6.8 Notice of prepayment....................................55
6.9 Cancellation of Commitments.............................56
7 Fees and expenses................................................57
7.1 Fees....................................................57
7.2 Expenses................................................57
7.3 Value Added Tax.........................................58
7.4 Stamp and other duties..................................58
7.5 Indemnity...............................................58
8 Payments and Taxes; accounts and calculations....................59
8.1 No set-off or counterclaim; distribution to the Banks...59
8.2 Payments by the Banks...................................59
8.3 Non-Banking Days........................................59
8.4 Agent may assume receipt................................59
8.5 Grossing-up for Taxes...................................60
8.6 Qualifying Banks........................................60
8.7 Claw-back of Tax benefit................................61
8.8 Certification to secure a Tax benefit...................61
8.9 Bank accounts...........................................62
8.10 Partial payments........................................62
8.11 Calculations............................................63
8.12 Certificates conclusive.................................63
8.13 Reconventioning.........................................63
8.14 Effect of monetary union................................64
i
<PAGE>
9 Guarantee........................................................65
9.1 Limits of Guarantee.....................................65
9.2 Covenant to pay.........................................65
9.3 Guarantors as principal debtors; indemnity..............66
9.4 No security taken by Guarantors.........................66
9.5 Interest................................................66
9.6 Continuing security and other matters...................67
9.7 New accounts............................................67
9.8 Liability unconditional.................................67
9.9 Collateral Instruments..................................68
9.10 Waiver of Guarantors'rights.............................68
9.11 Suspense accounts.......................................69
9.12 Settlements conditional.................................69
9.13 Guarantors to deliver up certain property...............69
9.14 Retention of this guarantee.............................69
9.15 Changes in constitution or reorganisations of
Secured Parties.........................................69
9.16 Other Guarantors........................................70
9.17 Acceding Guarantors.....................................70
10 Representations and warranties...................................72
10.1 Repeated representations and warranties.................72
10.2 Further representations and warranties..................74
10.3 First Drawing representations and warranties............76
10.4 Repetition..............................................79
11 Undertakings.....................................................80
11.1 Positive covenants......................................80
11.2 Negative covenants......................................90
12 Financial covenants..............................................96
12.1 Financial covenants.....................................96
12.2 Auditors certificate....................................97
12.3 Negative EBITDA.........................................98
13 Events of Default................................................99
13.1 Events of default.......................................99
13.2 Acceleration...........................................107
13.3 Demand basis...........................................108
14 Indemnities.....................................................109
14.1 Miscellaneous indemnities..............................109
14.2 Currency of account: currency indemnity................109
14.3 Environmental indemnity................................110
14.4 ESGB reserve requirements..............................110
15 Unlawfulness and increased costs; mitigation....................111
15.1 Unlawfulness...........................................111
15.2 Increased costs........................................111
15.3 Exceptions.............................................112
15.4 Mitigation.............................................113
15.5 Replacement of Banks...................................113
16 Set-off and pro rata payments...................................115
16.1 Set-off................................................115
16.2 Pro rata payments......................................115
16.3 No release.............................................116
16.4 No charge..............................................116
17 Assignment substitution and lending offices.....................117
17.1 Benefit and burden.....................................117
17.2 No assignment by Obligors..............................117
17.3 Assignment by Banks....................................117
17.4 Transfer...............................................117
17.5 Reliance on Transfer Certificate.......................118
17.6 Authorisation of Agent.................................119
17.7 Construction of certain references.....................119
17.8 Lending offices........................................119
17.9 Disclosure of information..............................119
18 Joint Arrangers, Agent, Security Agent and Reference Banks......120
18.1 Appointment of Agent...................................120
18.2 Agent's actions........................................120
18.3 Agent's duties.........................................120
18.4 Agent's rights.........................................121
18.5 No liability of Joint Arrangers, Security
Agent and Agent........................................122
18.6 Non-reliance on Joint Arrangers, Security
Agent or Agent.........................................123
18.7 No Responsibility on Joint Arrangers, Security
Agent or Agent for any Obligor's performance...........123
18.8 Reliance on documents and professional advice..........124
18.9 Other dealings.........................................124
18.10 Rights of Agent as Bank: no partnership................124
18.11 Amendments: waivers....................................124
18.12 Reimbursement and indemnity by Banks...................125
18.13 Retirement of Agent....................................126
18.14 Change of Reference Banks..............................126
18.15 Prompt distribution of proceeds........................127
ii
<PAGE>
19 Notices and other matters.......................................128
19.1 Notices................................................128
19.2 Notices through the Agent..............................130
19.3 No implied waivers remedies cumulative.................130
19.4 English translations...................................130
19.5 Counterparts...........................................131
19.6 No breach of Austrian Agreements.......................131
20 Governing law and Jurisdiction..................................132
20.1 Law....................................................132
20.2 Submission to jurisdiction.............................132
20.3 Agent for service of process...........................132
Schedule
1 Part A - The Banks and their Commitments........................133
Part B - Original Guarantors....................................136
Part C - Borrowers..............................................137
2 Form of Drawdown Notice.........................................138
3 Documents and evidence required prior to the
giving of the Drawdown Notice in respect of the
first Drawing...................................................140
4 Calculation of Additional Cost..................................147
5 Form of Transfer Certificate....................................149
6 Part A - Compliance Certificate to be delivered
by an Authorised Officer of UPCF or UPC................153
Part B - Compliance Certificate to be delivered by
the auditors of UPCF or UPC............................155
7 Registrations and Licences......................................157
8 Principal Agreements............................................163
9 Part A - Guarantor's Deed of Accession..........................164
Part B - Documents and Evidence to be delivered
by an Acceding Guarantor...............................165
10 Form of Quarterly Management Accounts/Monthly Information.......167
11 Form of Telekabel Note..........................................175
12 Norwegian Asset Security........................................176
13 Part A - UPCF Group Structure Chart as at
the date of the first Drawing..........................182
Part B - UPCF Group Structure Chart after the
Restructuring..........................................183
iii
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THIS AGREEMENT is dated 27 July, 1999 and made BETWEEN:
(1) UPC FACILITY B.V., TELEKABEL WIEN GmbH and JANCO MULTICOM A/S as
Borrowers;
(2) THE ENTITIES listed in part B of schedule 1 as Original Guarantors;
(3) BANK OF AMERICA INTERNATIONAL LIMITED, CIBC WORLD MARKETS PLC,
CITIBANK, N.A., MEESPIERSON N.V., PARIBAS, THE ROYAL BANK OF SCOTLAND
PLC and TORONTO DOMINION BANK EUROPE LIMITED as Joint Arrangers;
(4) THE BANKS AND FINANCIAL INSTITUTIONS whose names and addresses are set
out in part A of schedule 1;
(5) THE TORONTO-DOMINION BANK as Agent; and
(6) THE TORONTO-DOMINION BANK as Security Agent.
IT IS AGREED as follows:
1 Purpose and interpretation
1.1 Purpose
(a) This Agreement sets out the terms and conditions upon and subject to
which the Banks agree, according to their several obligations, to make
available to the Borrowers credit facilities of up to Euro
1,000,000,000 (comprising Facility A and Facility B) to be used (A)
(in the case of Facility A) for (i) general corporate purposes of the
Restricted Group, (ii) financing capital expenditure of the Restricted
Group relating to upgrading the Cable Systems of the Restricted Group
and expanding the products made available by the Restricted Group
through such Cable Systems, (iii) financing Permitted European
Acquisitions, (iv) financing Permitted Payments, (v) financing
interest and fees payable and expenses incurred in connection with the
Facilities and (vi) if the aggregate principal amount outstanding to
the relevant Borrowers under the Existing UPC Senior Facility together
with all unpaid interest thereon and any other amounts payable in
relation thereto, which are required to be discharged pursuant to
clause 4.11, exceeds Euro 250,000,000, for the purpose of discharging
such amount as exceeds Euro 250,000,000 and (B) (in the case of
Facility B) for the purposes of refinancing the Existing UPC Senior
Facility and for general corporate purposes.
(b) For the purposes of this Agreement, Facility A and Facility B shall
only be made available to Telekabel Wien against the issue by
Telekabel Wien of Telekabel Notes within the overall limit of the
Facilities and, without prejudice to the foregoing, Telekabel Wien
shall, subject to the approval of the managing board of Telekabel Wien
of the amount of such borrowing, be permitted to borrow against the
issue of Telekabel Notes upon and subject to the terms of this
Agreement, a sum of up to Austrian Schillings 2,500,000,000 or such
greater amount as shall be agreed upon by the supervisory board of
Telekabel Wien from time to time.
1.2 Definitions
In this Agreement, unless the context otherwise requires:
"1999 Budget" means the budget for the Restricted Group for the period
commencing on 1st January, 1999 and ending on 31st December, 1999
contained within the Management Base Case;
"Acceding Guarantors" means those entities which have become a party to
this Agreement as Guarantors pursuant to clause 9.17;
"Additional Cost" means in relation to any period a percentage
calculated for such period at an annual rate determined in accordance
with schedule 4;
"Adjusted Annualised Consolidated EBITDA" means twice the aggregate of
the Adjusted Consolidated EBITDA in respect of the relevant Six Month
Period;
"Adjusted Consolidated EBITDA" means, in respect of each Quarterly
Period or financial year, the consolidated EBITDA of the Restricted
Group adjusted so that any EBITDA (whether positive or negative)
attributable to New Services is not taken into account;
"Affiliates" means, in respect of any person, a direct or indirect
Subsidiary or Holding Company of that person;
"Agent" means The Toronto-Dominion Bank of Triton Court, 14/18 Finsbury
Square, London EC2A 1DB or such other person as may be appointed agent
for the Banks pursuant to clause 18.13;
"Annual Budget" means a budget in respect of the Restricted Group for
each financial year containing information of a substantially similar
type and to a substantially similar level of detail as the 1999 Budget
or containing such additional information or additional level of detail
as UPCF reasonably deems necessary, or, omitting such information or to
such lesser level of detail, as has at the relevant time, been approved
in writing by the Agent;
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"Annualised Consolidated EBITDA" means twice the aggregate of the
Consolidated EBITDA in respect of the relevant Six Month Period;
"Approved Stock Options" means any options granted by a member of the
Restricted Group to directors and/or employees of such member of the
Restricted Group to subscribe for shares in that member of the
Restricted Group provided that the maximum aggregate amount of such
options shall not exceed eight per cent. of its issued share capital,
in the case of Stipdon, and five per cent. of its issued share capital,
in the case of each other member of the Restricted Group;
"Associated Company" of a person means (i) any other person which is
directly or indirectly Controlled by, under common Control with or
Controlling such person or (ii) any other person owning beneficially
and/or legally directly or indirectly 10 per cent. or more of the
equity interest in such person or 10 per cent. of whose equity interest
is owned beneficially and/or legally directly or indirectly by such
person;
"Austrian Agreements" means the following documents and agreements
which have been entered into by the Telekabel Austrian Entities:
(a) Vereinbarung (agreement on mutual relations) dated 30th
November 1977 between Telekabel Wien and Kabel-TV-Wien GmbH;
(b) Entgeltvereinbarung (agreement on details of payment), dated
23rd November 1987 between Telekabel Wien and Stadt Wien;
(c) Programmnutzungsvereinbarung (agreement on use of television
and radio programmes) dated 10th December 1987 between
Telekabel Wien and Kabel-TV-Wien GmbH;
(d) Treuhand-und Geschaftsbesorgungsvertrag (trust and agency
agreement) dated 29th November 1988 between Telekabel Wien,
Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft mbh and
Philips Data Systems GmbH;
(e) Kostenvergutung (reimbursement of costs agreement) dated 27th
July 1994 by Telekabel Wien in favour of Kabel-TV Wiener
Neustadt/Neunkirchen GmbH;
(f) Syndikatsvereinbarung (shareholders agreement) dated 28th June
1995 between Osterreichische Philips Industrie GmbH, CNA and
Kabel-TV-Wien GmbH;
(g) Geschaftsordnung (internal organisational rules) Telekabel
Wien GmbH dated 28th June 1995 between Osterreichische Philips
Industrie GmbH, CNA and Kabel-TV-Wien GmbH;
(h) Entgeltvereinbarung (agreement on details of payment) dated
9th February 1988 between Telekabel Graz GmbH and Grazer
Kabel-TV GmbH;
(i) Grundsatzvereinbarung (basic agreement on mutual relations)
dated 30th November 1977 entered into between Osterreichische
Philips Industrie GmbH and Kabel-TV-Wien GmbH;
(j) Dividendengarantie (guarantee of dividends) dated 30th
November 1987 entered into by Osterreichische Philips
Industrie GmbH in favour of Kabel-TV-Wien GmbH;
(k) Grundsatzvereinbarung (basic agreement on mutual relations and
operations of project company (Telekabel Graz GmbH)) dated 5th
May 1983 entered into between Osterreichische Philips
Industrie GmbH and Grazer Kabel-TV GmbH;
(l) Dividendengarantie (guarantee of dividends) dated 14th
November 1988 entered into by Osterreichische Philips
Industrie GmbH in favour of Grazer Kabel-TV GmbH;
(m) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel Klagenfurt GmbH) dated 6th August 1979
entered into between Osterreichische Philips Industrie GmbH
and Landeshauptstadt Klagenfurt;
(n) Dividendengarantie (guarantee of dividends) dated 18th
December 1990 entered into by Osterreichische Philips
Industrie GmbH in favour of Landeshauptstadt Klagenfurt;
(o) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Region Baden
Betriebsgesellschaft mbH) dated 18th February 1980 entered
into between Osterreichische Philips Industrie GmbH and
Kabel-TV Sud GmbH;
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(p) Grundsatzvereinbarung (basic agreement on mutual relations and
operation of Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Gesellschaft mbH) dated 23rd May 1979 entered into between
Osterreichische Philips Industrie GmbH and Kabel-TV Wiener
Neustadt GmbH; and
(q) Vereinbarung (agreement relating to remunerating Dr. Alfreda
Bergmann-Fiala) dated 30th November 1993 entered into between
Telekabel Wien and Kabel-TV-Wien GmbH;
"Austrian Licences" means those licences and registrations specified
as Austrian Licences in schedule 7;
"Authorised Officer" means that officer or officers of the relevant
Borrower authorised to sign Compliance Certificates, Drawdown Notices
and other notices, requests, or confirmations referred to in this
Agreement or relating to the Facilities and that officer or officers
of UPC authorised to sign Compliance Certificates and other notices,
requests, or confirmations referred to in this Agreement relating to
the Facilities which are to be given by UPC;
"Austrian Security" means each of:
(a) a supplemental pledge of receivables dated 4 June 1998 granted by
Telekabel Wien in favour of The Toronto-Dominion Bank; and
(b) a pledge of receivables (Pfandbestellungsvertag) dated 8 December
1997 with attached bank account pledge granted by Telekabel Wien
in favour of the Toronto-Dominion Bank;
"Banking Day" means:
(a) for interest rate fixing and payments purposes in relation to
euro and National Currency Units, a Target Day; and
(b) for all other purposes (including, but not limited to, rate
fixing and payments in relation to Optional Currency (other than
National Currency Units) and receiving notices), a day other than
Saturday or Sunday on which banks are open for business in London
and (in the case of rate fixing and payments in relation to
Optional Currency, other than National Currency Units and
Sterling) the principal financial centre in the jurisdiction of
the Optional Currency concerned;
"Banks" means the banks and financial institutions listed in part A of
schedule 1 and includes their successors in title and Transferees;
"Belgian Licences" means those licences and registrations specified as
Belgian Licences in schedule 7;
"Belmarken" means Belmarken Holding B.V., a private limited liability
company incorporated under the laws of The Netherlands with its
registered office at Amsterdam and its business office at Frederik
Roekestraat 123, 1076EE Amsterdam, The Netherlands;
"Borrowed Money" means Indebtedness in respect of (i) money borrowed or
raised and debit balances at banks, (ii) any bond, note, loan stock,
debenture or similar debt instrument, (iii) acceptance or documentary
credit facilities, (iv) receivables sold or discounted (otherwise than
on a non-recourse basis and other than in the normal course of business
for collection), (v) payments for assets acquired or services supplied
deferred for a period of over 180 days after the relevant assets were
or are to be acquired or the relevant services were or are to be
supplied, (vi) finance leases and hire purchase contracts to the extent
that they constitute capital leases within the meaning of GAAP, (vii)
any other transaction (including without limitation forward sale or
purchase agreements) having the commercial effect of a borrowing or
raising of money or of any of (ii) to (vi) above and (viii) guarantees
in respect of Indebtedness of any person falling within any of (i) to
(vii) above (for the avoidance of doubt, without double counting,
guarantees given by a member of the Restricted Group for the
Indebtedness of the type falling within (i) to (vii) above of another
member of the Restricted Group) Provided that Indebtedness which has
been cash collateralised shall not be included in any calculation of
Borrowed Money to the extent so cash collateralised and Indebtedness
which is in the nature of equity (other than redeemable shares) shall
not be regarded as Borrowed Money;
"Borrower Pledge of Shareholder Loans" means the pledge of shareholder
loans entered into by UPCF, Stipdon, UPC Romania Holding B.V.,
TeleKabel Hungary, UPC Slovakia Holding B.V. and UPC Czech Holding
B.V. in favour of the Security Agent in the agreed form;
"Borrower Share Securities" means the share pledges given to the
Security Agent by UPC in respect of its shareholding in each Borrower
other than Telekabel Wien in the agreed form (and for the avoidance of
doubt does not include a share pledge in respect of Telekabel Wien);
3
<PAGE>
"Borrowers" means the entities whose names are set out in part C of
schedule 1 provided that, for the purposes of this Agreement, the term
"Borrowers" when used in connection with Telekabel Wien, shall mean
Telekabel Wien as an issuer of Telekabel Notes in accordance with the
terms and conditions of this Agreement;
"Business" means any business of the Restricted Group (i) that consists
of the upgrade, construction, creation, development, marketing,
acquisition (to the extent permitted under this Agreement), operation,
utilisation and maintenance of networks that use existing or future
technology for the transmission, reception and delivery of voice, video
and/or other data (including networks that transmit, receive and/or
deliver services such as multi-channel television and radio,
programming, telephony, Internet services and content, high-speed data
transmission, video, multi-media and related activities) or (ii) that
supports, is incidental to or is related to any such business (save
that the only programming activity that is included within paragraphs
(i) and (ii) of this definition is the provision of local programming)
or (iii) that comprises being a Holding Company of one or more persons
engaged in such business, and references to "business" or "ordinary
course of business" shall be similarly construed;
"Cable Systems" means the telecommunications and/or television systems
constructed or to be constructed in relation to the Permitted Business
and includes any part of such system and all modifications,
substitutions, replacements, renewals and extensions made to such
systems;
"CNA" means Cable Networks Austria Holding B.V., a private limited
liability company incorporated under the laws of the Netherlands with
its registered office at Amsterdam and its business office at Frederik
Roeskestraat 123, 1076EE Amsterdam, The Netherlands;
"CNA Share Security" means the share pledge to be given to the Security
Agent by UPC in respect of its shareholding in CNA in the agreed form
(and which share pledge is to be assumed or replaced in substantially
the same form by UPCF upon transfers of UPC's shareholding in CNA to
UPCF in connection with the Restructuring);
"Collateral Instruments" means notes, bills of exchange, certificates
of deposit and other negotiable and non-negotiable instruments,
guarantees and any other documents or instruments which contain or
evidence an obligation (with or without security) to pay, discharge or
be responsible directly or indirectly for, any Indebtedness or
liabilities under this Agreement and includes Encumbrances;
"Commitment" means, in relation to a Bank, at any relevant time the
aggregate of its Facility A Commitment and/or Facility B Commitment;
"Compliance Certificate" means either (i) a certificate substantially
in the form set out in part A of schedule 6 in relation to the
compliance (or otherwise) with the undertakings in clause 12 (if not in
compliance indicating the extent of the breach) issued by an Authorised
Officer of UPCF or UPC in relation to Quarterly Management Accounts or
(ii) a certificate substantially in the form set out in part B of
schedule 6 in relation to the compliance (or otherwise) with the
undertakings in clause 12 (if not in compliance indicating the extent
of the breach) issued by the auditors of UPCF or UPC in relation to
annual financial statements;
"Consolidated EBITDA" means the aggregate of the consolidated EBITDA
of the Restricted Group in respect of the relevant Six Month Period;
"Contribution" means, in relation to a Bank, the principal amount of
the Loan (including the Telekabel Notes) owing to such Bank at any
relevant time;
"Control" means the power of a person:
(a) by means of the holding of shares or the possession of
voting power in or in relation to any other person; or
(b) by virtue of any powers conferred by the articles of
association or other documents regulating any other person,
to direct or cause the direction of the management and policies of that
other person;
"Current Assets" means, at any relevant time, the aggregate of the
current assets (excluding cash) of the Restricted Group at such time
which would be included as current assets in a consolidated balance
sheet of the Restricted Group drawn up at such time in accordance with
GAAP;
4
<PAGE>
"Current Liabilities" means, at any relevant time, the aggregate of the
current liabilities (excluding short term debt and overdrafts) of the
Restricted Group at such time which would be included as current
liabilities in a consolidated balance sheet of the Restricted Group
drawn up at such time in accordance with GAAP;
"Deed of Guarantor Accession" means a deed to be executed and delivered
by any Acceding Guarantor pursuant to clause 9.17 substantially in the
form of schedule 9 part A;
"Default" means any Event of Default or any event or circumstance which
would, upon the giving of a notice by the Agent and/or the expiry of
the relevant period (in each case as specified in clause 13.1),
constitute an Event of Default;
"Derivatives Contract" means a contract, agreement or transaction
which is:
(i) a rate swap, basis swap, forward rate transaction, equity (or
equity or other index) swap or option, bond option, interest
rate option, foreign exchange transaction, collar or floor,
currency swap, currency option or any other similar
transaction; and/or
(ii) any combination of such transactions,
in each case, whether on-exchange or otherwise;
"Disclosure Letter" means the letter from UPCF to the Agent of even
date herewith, the form and content of which have previously been
approved by the Agent;
"Drawdown Date" means the date, being a Banking Day on which an
Drawing is or is to be made;
"Drawdown Notice" means a notice in the form or substantially in the
form of schedule 2;
"Drawing" means a Revolving Drawing or a Term Drawing (as applicable);
"Eastern Europe" means Europe other than Western Europe;
"EBITDA" means, in respect of any period or person, the Net Income of
that person (plus, in the case of the Restricted Group, any amount
attributable to non-cash compensation payable to employees or directors
of members of the Restricted Group deducted in calculating Net Income,
any depreciation, amortisation, other non-cash charges (such as
deferred Taxes), accrued Management Fees (whether or not paid), fees
accrued (whether or not paid) in respect of Borrowed Money and interest
expense and other charges in respect of Borrowed Money) for such period
adjusted as follows:
(a) minus extraordinary income of the relevant person for such period;
(b) plus any extraordinary expenses of the relevant person for such period;
(c) minus any interest income of the relevant person for such period; and
(d) in the case of the Restricted Group, minus any Management Fees paid during
such period;
all as determined in accordance with GAAP and (in the case of the
Restricted Group) as shown in, the relevant annual financial statements
or Quarterly Management Accounts prepared and delivered to the Agent
pursuant to clause 11.1(f)(i) or clause 11.1(g) (as the case may be);
"Encumbrance" means any mortgage, charge (whether fixed or floating),
pledge, lien, hypothecation, assignment by way of security, trust
arrangement for the purpose of providing security or other security
interest of any kind securing any obligation of any person or any other
arrangement having the effect of conferring rights of retention or
other disposal rights over an asset (including without limitation title
transfer and/or retention arrangements having a similar effect or a
deposit of money with the primary intention of affording a right of
set-off) and includes any agreement to create any of the foregoing but
does not include liens arising in the ordinary course of business by
operation of law and not by way of contract;
"Environmental Claim" means any claim, notice of violation,
prosecution, demand, action, official warning, abatement or other order
(conditional or otherwise) relating to Environmental Matters or any
notification or order requiring compliance with the terms of any
Environmental Licence or Environmental Law;
"Environmental Law" includes all or any law, statute, rule, regulation,
treaty, by-law, code of practice, order, notice, demand, decision of
the courts or of any governmental authority or agency or any other
regulatory or other body in any jurisdiction relating to Environmental
Matters applicable to or binding on any member of the Restricted Group;
5
<PAGE>
"Environmental Licence" includes any permit, licence, authorisation,
consent or other approval required at any time by any Environmental Law
in connection with the activities carried on by any member of the
Restricted Group;
"Environmental Matters" includes (a) the generation, deposit, disposal,
keeping, treatment, transportation, transmission, handling,
importation, exportation, processing, collection, sorting, presence or
manufacture of any waste or any Relevant Substance; (b) nuisance,
noise, defective premises, health and safety at work or elsewhere; and
(c) the pollution, conservation or protection of the environment (both
natural and built) or of man or any living organisms supported by the
environment or any other matter whatsoever affecting the environment or
any part of it;
"EURIBOR" means, in relation to any amount in euros and any period, the
offered rate for deposits for such amount and for such period which is:
(a) the rate of interest for such period which appears on the
"Euribor01" page of the Reuters screen (or such other page on
the Reuters screen as may customarily be used from time to
time to display EURIBOR rates) at or about 11 a.m. (Central
European Time) on the Quotation Date for such period; or
(b) if the relevant page is not displayed on the Reuters screen or
the Reuters screen is not operating at the relevant time or if
no such offered rate appears on the Reuters screen for that
period, the rate of interest for such period which appears on
page 248 of the Dow Jones Telerate screen (or such other page
on the Dow Jones Telerate screen as may customarily be used
from time to time to display EURIBOR rates) at or about 11
a.m. (Central European Time) on the Quotation Date for such
period; or
(c) if the relevant rate of EURIBOR cannot be determined in
accordance with paragraphs (a) and (b) above, the rate
determined by the Agent to be the arithmetic mean (rounded
upwards if necessary to the nearest one sixteenth of one per
cent.) of the rates respectively quoted to the Agent by each
of the Reference Banks (provided always that at least two
Reference Banks shall have given such quotation) at the
request of the Agent as such Reference Bank's offered rate
for deposits in an amount approximately equal to the amount
in relation to which EURIBOR is to be determined for a
period equivalent to such period to leading banks in the
London Interbank Market at or about 11 am (London time) on
the Quotation Date for such period;
"Euro Amount" means (a) in relation to a Drawing to be drawn down in
euros, the amount in euros so drawn down and (b) in relation to a
Drawing to be drawn down in an Optional Currency, the amount in euros
which would be required to purchase the principal amount of that
Drawing as determined in accordance with clause 4.7 and, in the case of
a Term Drawing, as adjusted at the end of each Interest Period in
accordance with clause 4.12, in each case as reduced by any repayment
or prepayment under this Agreement.
"euro" and "Euro " means the single currency of Participating Member
States introduced in accordance with the provisions of Article 109(l)4
of the Treaty and in respect of all payments to be made under this
Agreement in euros means immediately available, freely transferable
funds;
"Event of Default" means any of the events or circumstances described
in clause 13.1;
"Excess Cash Flow" means the aggregate consolidated EBITDA of the
Restricted Group calculated for the most recently ended financial year
(beginning with the financial year ending on 31st December 2003), as
shown in the Quarterly Management Accounts in respect of the Quarterly
Period ending on 31st December in any relevant year, (A) less (i) any
interest and other charges in respect of Borrowed Money of the
Restricted Group paid during such financial year, (ii) repayments
and/or prepayments of any Borrowed Money of the Restricted Group paid
during such financial year and (iii) capital expenditure of the
Restricted Group incurred during such financial year and (B) either (1)
plus any amount by which Net Working Capital at the commencement of
such financial year exceeds Net Working Capital at the close of such
financial year or, as appropriate, (2) minus any amount by which Net
Working Capital at the end of such financial year exceeds Net Working
Capital at the beginning of such financial year;
"Existing UPC Senior Facility" means the revolving credit facility (in
the face amount of up to NLG 1,100,000,000 and in respect of which an
amount of up to NLG 500,000,000 is outstanding as at the date of this
Agreement) made available pursuant to the loan and note issuance
agreement dated 8 October 1997 made between UPC (1), the entities
listed in part C of schedule 1 thereto as Borrowers (2), the entities
listed in Part B of schedule 1 thereto as Guarantors (3), The
Toronto-Dominion Bank as Arranger (4), the banks and financial
institutions whose names and addresses are set out in part A of
6
<PAGE>
schedule 1 thereto (5), The Toronto-Dominion Bank as Agent (6) and The
Toronto-Dominion Bank as Security Agent (7), as amended, modified,
restated and supplemented prior to the date of this Agreement;
"Facilities" means each of Facility A and Facility B and (as the
context requires) "Facility" means either of them;
"Facilities Limit" means the aggregate of the Facility A Limit and the
Facility B Limit;
"Facility A" means the reducing revolving credit and note issuance
facility granted by the Banks to the Borrowers in accordance with
clause 2.1(a);
"Facility A Commitment" means, in relation to a Bank, the amount set
opposite its name in column 1 of part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate, as amended by any
relevant term of this Agreement;
"Facility A Limit" means Euro 750,000,000 as reduced pursuant to the
terms of this Agreement, including, without limitation, clause 6.2;
"Facility A Outstandings" means the aggregate of the Euro Amount of
all outstanding Drawings under Facility A;
"Facility A Revolving Period" means the period from (and including) the
date of this Agreement to (and including) 27 July 2006;
"Facility A Total Commitments" means the aggregate for the time being
of the Facility A Commitments of all the Banks being Euro 750,000,000
at the date hereof;
"Facility B" means the term loan and note issuance facility granted by
the Banks to the Borrowers in accordance with clause 2.1(b);
"Facility B Commitment" means, in relation to a Bank, the amount set
opposite its name in column 2 of part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate, as amended by any
relevant term of this Agreement;
"Facility B Limit" means Euro 250,000,000 as reduced pursuant to the
terms of this Agreement, including, without limitation, clause 6.3;
"Facility B Outstandings" means the aggregate of the Euro Amount of
all outstanding Drawings under Facility B;
"Facility B Total Commitments" means the aggregate for the time being
of the Facility B Commitments of all the Banks being Euro 250,000,000
at the date hereof;
"Final Repayment Date" means 27 July 2006;
"Finance Documents" means this Agreement, the Telekabel Notes, the
Security Documents, the High Yield Hedging Arrangements (to the extent
that any Bank or any of its Affiliates is a party thereto) and the
Interest Rate Hedging Arrangements (to the extent that any Bank or any
of its Affiliates is a party thereto);
"Finance Parties" means the Agent, the Joint Arrangers, the Security
Agent and the Banks;
"Finance Period" means the period from the date of this Agreement until
the date on which none of the Secured Parties and the Obligors has any
actual or contingent obligations (other than indemnities which survive
repayment and termination of this Agreement and the Security Documents)
under this Agreement or the Security Documents;
"Funding Cost" means (i) in respect of Drawings to be made in euros or
in a National Currency Unit, EURIBOR or (ii) in respect of Drawings to
be made in any Optional Currency, LIBOR;
"GAAP" means generally accepted accounting principles and practices in
the Netherlands;
"Guarantee" means the guarantee of the Guarantors contained in clause 9
and includes each separate or independent stipulation or agreement by
the Guarantors contained in clause 9;
"Guaranteed Liabilities" means all moneys, obligations and liabilities
expressed to be guaranteed by the Guarantors in clause 9.2
(disregarding the limits set out in clause 9.1);
"Guarantors" means (i) the Original Guarantors and (ii) the Acceding
Guarantors;
"High Yield Hedging Arrangements" means any currency and/or interest
rate hedging arrangements entered into in relation to the High Yield
Notes;
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"High Yield Hedging Banks" means Banks or their Affiliates who are
party to High Yield Hedging Arrangements;
"High Yield Notes" means the High Yield Notes issued or to be issued by
UPC in July or August 1999 for gross proceeds of not less than
Euro 1,500,000,000;
"Holding Company" in relation to a person, means an entity of which
that person is a Subsidiary;
"Hungarian Agreement" means the shareholder agreement dated 30 June
1998 between UPC, Stipdon, The First Hungary Fund Limited and FHF Naco
N.V. in relation to Telekabel Hungary;
"Hungarian Licences" means those licences or registrations specified
as Hungarian Licences in schedule 7;
"Immaterial Subsidiary" means any Subsidiary of an Obligor which
Subsidiary is incorporated and operates solely in Eastern Europe
provided that the aggregate of the contributions of the Immaterial
Subsidiaries to the consolidated total assets, consolidated revenues
and consolidated EBITDA of the Restricted Group attributable to Eastern
Europe does not exceed in aggregate ten per cent. For the purposes of
this definition consolidated revenues and consolidated EBITDA of the
Restricted Group or any Subsidiary of an Obligor shall be determined by
reference to the twelve month period ending on the most recent Quarter
Day in respect of which Quarterly Management Accounts have been
delivered to the Agent under this Agreement and consolidated total
assets shall be determined as at such Quarter Day by reference to such
Quarterly Management Accounts;
"Incapacity" means, in relation to a person, the insolvency,
liquidation, dissolution, winding-up, administration, receivership or
other incapacity of that person whatsoever (and in the case of a
partnership, includes the termination or change in composition of the
partnership);
"Indebtedness" means any obligation for the payment or repayment of
money, whether as principal or as surety and whether present or future,
actual or contingent;
"Information Memorandum" means the Information Memorandum dated July
1999 and any subsequent update approved in writing by UPCF and the
Joint Arrangers which, in either case, is distributed by the Joint
Arrangers at the request of UPCF in connection with this Agreement;
"Intellectual Property Rights" means any patent, trademark, service
mark, registered design, trade name or copyright required to carry on
the business of any member of the Restricted Group;
"Interconnect Agreements" means the agreements listed in schedule 8
and any interconnect agreements maintained pursuant to clause 11.1(y);
"Interest Payment Date" means the last day of an Interest Period;
"Interest Period" means, in relation to any Drawing, each period for
the calculation of interest in respect of such Drawing ascertained in
accordance with clauses 5.3, 5.4 and 5.5;
"Interest Rate Hedging Arrangements" means the interest rate hedging
arrangements with respect of the interest rate hedging programme
referred to in clause 11.1(s);
"Interest Rate Hedging Banks" means Banks or their Affiliates who are
party to the Interest Rate Hedging Arrangements;
"Janco" means Janco Multicom A/S, a corporation incorporated in Norway
(organisation no. 919 394 056) having its corporate seat at Ensjoveien
7, 0655 Oslo, Norway;
"Joint Arrangers" means Bank of America International Limited of New
Broad Street House, 35 New Broad Street, London EC2M 1SH, CIBC World
Markets plc of Cottons Centre, Cottons Lane, London SE1 2QL, Citibank,
N.A. of PO Box 2OO, Cottons Centre, Hays Lane, London SE1 2QT,
MeesPierson N.V. of Coolsingel 93, 3012AE Rotterdam, The Netherlands,
Paribas of 3 rue d'Antin, 75002 Paris, The Royal Bank of Scotland plc
of Waterhouse Square, 138-142 Holborn, London EC1N 2TH and Toronto
Dominion Bank Europe Limited of Triton Court, 14/18 Finsbury Square,
London EC2A 1DB;
"LIBOR" means, in relation to a particular period:
(a) the arithmetic mean (rounded upwards, if necessary, to five
decimal places) of the London interbank offered rates for
deposits of the currency in question for a period equal to
such period at or about 11 a.m. on the Quotation Date for such
period as displayed on the relevant page of the Reuter Monitor
Money Rates Service (or such other page as may replace such
page on such service for the purpose of displaying London
interbank offered rates of leading banks for deposits of that
currency); or
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(b) if on such date as is referred to in paragraph (a) the offered
rates for the relevant period of fewer than two leading banks
are so displayed, the arithmetic mean (rounded upwards, if
necessary, to five decimal places) of the London interbank
offered rates for deposits of the currency in question for a
period equal to such period at or about 11 a.m. on the
Quotation Date for such period as displayed on the relevant
page of the Telerate Service (or such other page as may
replace such page on such service for the purpose of
displaying London interbank offered rates of leading banks for
deposits of that currency); or
(c) if on such date as is referred to in paragraph (b) the offered
rates for the relevant period of fewer than two leading banks
are so displayed, the arithmetic mean (rounded upwards, if
necessary, to five decimal places) of such rates quoted to the
Agent by each of the Reference Banks at the request of the
Agent;
"Licences" means the Belgian Licences, the Austrian Licences, the
Norwegian Licences and the Hungarian Licences or any successor licence
to such Licences granted pursuant to any Telecommunications and Cable
Law;
"Loan" means the aggregate principal amount owing to the Banks under
this Agreement at any relevant time (including, for the avoidance of
doubt, the aggregate principal amount of all Telekabel Notes which are
then issued and outstanding);
"Majority Banks" means at any relevant time Banks (a) the aggregate of
whose Contributions exceeds 662/3 per cent of the Drawings or (b) (if
no principal amounts are outstanding under this Agreement) the
aggregate of whose Commitments exceeds 662/3 per cent of the Total
Commitments;
"Management Base Case" means the management base case financial and
operational projections for the Restricted Group produced by UPCF in
the form included in the Information Memorandum;
"Management Fees" means any management, consultancy or similar fees
payable by any member of the Restricted Group to any Relevant Person;
"Margin" means the rate per annum calculated in accordance with clause
5;
"Material Adverse Effect" means a material adverse effect on the
ability of any Obligor to perform all or any of its material
obligations under this Agreement or any Security Document;
"Material Subsidiary" means any Subsidiary of an Obligor which is not
an Immaterial Subsidiary;
"month" or "months" means a period beginning in one calendar month and
ending in the relevant later calendar month on the day numerically
corresponding to the day of the calendar month in which it started,
provided that (i) if the period started on the last Banking Day in a
calendar month or if there is no such numerically corresponding day, it
shall end on the last Banking Day in such later calendar month and (ii)
if such numerically corresponding day is not a Banking Day, the period
shall end on the next following Banking Day in such later calendar
month but if there is no such Banking Day it shall end on the preceding
Banking Day and "monthly" shall be construed accordingly;
"Monthly Information" means the monthly information of the Restricted
Group to be delivered to the Agent pursuant to clause 11.1(h) in the
form of schedule 10 or containing information of the same type as is
required by such form;
"National Currency Unit" means, in relation to a Participating Member
State, the legacy national currency unit of that Participating Member
State;
"Necessary Authorisations" means all approvals, authorisations and
licences (other than the Licences to the extent legally required) from,
all rights granted by and all filings, registrations and agreements
with any person including, without limitation, any government or other
regulatory authority, in each case from time to time necessary in order
to enable each member of the Restricted Group to carry on such business
as may be permitted by the terms of this Agreement and which is carried
on by it at the relevant time;
"Net Derivatives Liability" means, at any time, the net liability (if
any) at such time of the Restricted Group taken as a whole or UPC (as
the case may be) in respect of Derivatives Contracts determined by
reference to the amounts (as determined by the Agent), which would be
payable or receivable by the Restricted Group or UPC (as the case may
be) if all Derivatives Contracts to which any member of the Restricted
9
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Group or UPC (as the case may be) was a party at such time were
terminated at such time and replaced by the obligation to make a
payment reflecting the economic burden or value to the relevant member
of the Restricted Group or UPC (as the case may be) of the payment
flows under those Derivatives Contracts remaining at the time of
termination;
"Net Income" means, in respect of any period and for any period, the
net profit after Taxes and (in the case of the Restricted Group only)
Management Fees, in the case of the Restricted Group arising out of the
Permitted Business for such period as determined in accordance with
GAAP and (in the case of the Restricted Group) as shown in the annual
financial statements or Quarterly Management Accounts in respect of
such period prepared and delivered to the Agent pursuant to clause
11.1(f) or 11.1(g);
"Net Working Capital" means, at any time, the aggregate of the Current
Assets of the Restricted Group at such time less the aggregate of the
Current Liabilities of the Restricted Group at such time;
"New Services" means (i) telephony including internet and local loop
telephony and (ii) internet and/or data services, including
arrangements entered into by any member of the Restricted Group with
chello broadband N.V. and/or Priority Telecom N.V.;
"Norwegian Asset Security" means each of the Encumbrances set out in
schedule 12;
"Norwegian Licences" means those licences or registrations specified
as Norwegian Licences in schedule 7;
"Obligors" means the Borrowers and the Guarantors;
"Optional Currency" means any currency other than euro (and each
National Currency Unit) which is freely transferable, freely
convertible into euro and dealt in on the London Interbank Market;
"Original Guarantors" means UPCF and those Subsidiaries of UPC or, as
the case may be, a Borrower whose names, country of incorporation and
principal place of business are set out in part B of schedule 1
provided that if any of such Subsidiaries are merged into another
person in compliance with the terms of this Agreement and the surviving
entity is not an Original Guarantor, "Original Guarantors" shall no
longer include such Subsidiary;
"Participating Member State" means a member state of the European Union
that has adopted the single currency in accordance with the Treaty;
"Permitted Acquisitions" means:
(a) any acquisitions of assets or services made in the ordinary course of
business;
(b) any acquisitions within the Restructuring;
(c) any acquisitions of the share capital of, or assets and
liabilities of, a member of the Restricted Group by an Obligor
as part of the solvent reorganisation of the Restricted Group;
and
(d) the formation of a new direct or indirect Subsidiary of CNA
for the purposes of providing telephony services in Austria;
"Permitted Borrowings" means, without duplication:
(a) any Borrowed Money arising hereunder or under the Security Documents;
(b) until the date of the first Drawing hereunder, any Borrowed Money under the
Existing UPC Senior Facility;
(c) any Borrowed Money approved in writing by the Agent (acting on the
instructions of the Majority Banks);
(d) any Borrowed Money incurred through a Subordinated Shareholder Loan made to
any Obligor;
(e) Borrowed Money incurred in connection with the Interest Rate
Hedging Arrangements and any other hedging arrangements
permitted by clause 11.2(j);
(f) any Borrowed Money of any member of the Restricted Group
arising as a result of the issue by it or a financial
institution of a surety or performance bond in relation to the
performance by such member of the Restricted Group of its
obligations under contracts entered into in the ordinary
course of its business (other than for the purpose of raising
finance);
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(g) any deposits or prepayments constituting Borrowed Money
received by any member of the Restricted Group from a customer
or subscriber for its services;
(h) any Borrowed Money or guarantees permitted pursuant to clause 11.2(e);
(i) any Borrowed Money owing by any member of the Restricted Group
being Management Fees or management, consultancy or similar
fees payable to another member of the Restricted Group in
respect of which payment has been deferred;
(j) any Borrowed Money being Permitted Payments in respect of which payment has
been deferred;
(k) Permitted Third Party Subordinated Debt;
(l) any Borrowed Money of a company which is acquired by a member of the
Restricted Group after the date hereof as a Permitted European
Acquisition where such Borrowed Money existed at the date of
completion of such Permitted European Acquisition provided that (A)
such Borrowed Money was not incurred in contemplation of the
acquisition of such company, (B) the amount of such Borrowed Money is
not increased beyond the amount in existence at the date of completion
of the acquisition and (C) such Borrowed Money is discharged within
six months (or, in the case of Borrowed Money of Stjarn not exceeding
Euro 50,000,000, within twelve months) of the date of completion of
such Permitted European Acquisition;
(m) any Borrowed Money made available to Telekabel N.V. by The
First Hungary Fund in an amount not exceeding Euro 10,000,000
in aggregate;
(n) an unsecured loan of 100,000,000 Austria Schillings made by
Bank Austria to Telekabel Wien or any unsecured replacement of
such loan of up to the same amount;
(o) any Borrowed Money in addition to the Borrowed Money falling
within paragraphs (a) to (n) above (but including the Borrowed
Money referred to in paragraph (n ) above) and not exceeding
at any time more than Euro 55,000,000 in aggregate (or its
equivalent);
"Permitted Business" means the carrying on of the Business in
Europe (other than France and the Netherlands);
"Permitted Disposal" means:
(i) transfers, sales or disposals on arms' length commercial terms in the
ordinary course of business;
(ii) any disposals within the Restructuring;
(iii) transfers, sales or disposals or the payment of management,
consultancy or similar fees (a) by an Obligor to another
Obligor or (b) from a member of the Restricted Group (which is
not an Obligor) to any member of the Restricted Group or (c)
from an Obligor to another member of the Restricted Group
(which is not an Obligor) provided that (in the case of (c)
only) such member of the Restricted Group becomes an Acceding
Guarantor on, or prior to, such disposal in accordance with
clause 9.17;
(iv) the application of cash in payments which are not otherwise
restricted by the terms of this Agreement and the Security
Documents including, for the avoidance of doubt, Permitted
Acquisitions, Permitted European Acquisitions and Permitted
Payments, but excluding payments in respect of Permitted Third
Party Subordinated Debt;
(v) the payment of interest on Permitted Third Party Subordinated
Debt provided that (a) at the time of payment the applicable
ratio for the purpose of clause 12.1(b) is 4.5:1 (or less) and
(b) no Default has occurred and is continuing or would result
from such payment;
(vi) transfers, sales or disposals of any interest in an
Unrestricted Subsidiary;
(vii) the sale or disposal of property or other assets on bona fide
arm's length commercial terms in the ordinary course of
business in consideration for, or to the extent that the net
proceeds of sale are applied within 120 days after such sale
in the acquisition of, assets of a similar nature and
approximately equal value to be used in the Permitted
Business;
(viii) disposals of assets on bona fide arm's length commercial terms
where such assets are obsolete or no longer required for the
purposes of the Permitted Business;
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(ix) disposals made in connection with Approved Stock Options; and
(x)(A) disposals of assets (in addition to those described in
paragraph (i) to (ix) above), comprising or contributing in
aggregate a percentage value (as determined in accordance
with clause 6.6(c)) of less than 10 per cent. (adjusted in
accordance with clause 6.6(h)) of the total assets, revenues
or EBITDA of the Restricted Group provided that no Default
has occurred and is continuing or would occur as a result of
such disposal; and
(B) disposals of assets comprising or contributing in aggregate
a percentage value (as determined in accordance with clause
6.6(c)) of 10 per cent. or more of the total assets,
revenues or EBITDA of the Restricted Group (taken as a
whole) provided that (a) prior to the relevant disposal UPCF
has delivered to the Agent financial projections based on
assumptions which are no more aggressive than those used in
the preparation of the Information Memorandum which
demonstrate that the Restricted Group will be in compliance
with the undertakings set out in clause 12.1 for the period
commencing on completion of the relevant disposal and ending
on the Final Repayment Date, (b) no Default has occurred and
is continuing or would occur as a result of such disposal
and (c) the provisions of clause 6.6(c) have been complied
with;
"Permitted Encumbrances" means:
(a) any Encumbrance arising hereunder or under any Security Document;
(b) until (i) the date of the first Drawing hereunder (1) the
Austrian Security and (2) those Encumbrances referred to in
paragraph (c) of part II of schedule 3 and (ii) 31 October
1999, the Encumbrances constituting the Norwegian Asset
Security;
(c) any liens arising in the ordinary course of business by way of
contract which secure Indebtedness under any agreement for the
supply of goods or services in respect of which payment is not
deferred for more than 180 days;
(d) any Encumbrance imposed by any taxation or governmental
authority in respect of amounts which are being contested in
good faith and not yet payable and for which adequate reserves
have been set aside in the books of the Restricted Group in
respect of the same in accordance with GAAP;
(e) any Encumbrance approved in writing by the Agent (acting on the
instructions of the Majority Banks);
(f) any Encumbrance arising from any finance leases constituting
Permitted Borrowings provided that the maximum aggregate value
of assets subject to any such Encumbrances outstanding at any
time shall not exceed Euro 15,000,000;
(g) any Encumbrance in favour of any bank incurred in relation to any cash
management arrangements;
(h) rights of set-off arising in the normal course of business;
(i) any Encumbrance securing any Borrowed Money referred to in
paragraph (l) of the definition of Permitted Borrowings
provided that (A) such Encumbrance was not created in
contemplation of the acquisition of such asset or company, (B)
the debt secured by such Encumbrance is not increased beyond
that secured at the date the asset or company in question is
acquired and such Encumbrance secures only that debt and (C)
such Encumbrance is discharged within six months (or, in the
case of an Encumbrance entered into by Stjarn within 12
months) of completion of the relevant Permitted European
Acquisition;
(j) any Encumbrance not falling within paragraphs (a) to (i) above
and securing Indebtedness in aggregate not exceeding
Euro 20,000,000 (or its equivalent);
"Permitted European Acquisition" means the acquisition of a company or
all or any substantial part of the assets, property or business of any
other person or any assets that constitute a division or operating unit
of the business of any other person which operates and is situated in
Western Europe (other than France and The Netherlands) and/or in
Eastern Europe and the business of which is in the nature of the
business carried on by the Restricted Group at the date of this
Agreement provided that:
(a) the aggregate consideration (in cash or otherwise and whether or not
deferred) paid or payable by the Restricted Group in respect of all such
acquisitions is not more than Euro 400,000,000 (or its equivalent) provided
that (i) for the avoidance of doubt, any consideration funded by way of a
cash subscription for additional equity in UPCF by UPC or by way of an
additional cash Subordinated Shareholder Loan in relation to any such
acquisition shall not be taken into
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account for the purpose of this paragraph (a) except to the extent of
amounts repaid in respect of such Subordinated Shareholder Loan and (ii)
account shall be taken of the amount of any Borrowed Money owed by any
company or business acquired pursuant to a Permitted European Acquisition
and which constitutes "Permitted Borrowings" within paragraph (l) of that
definition so that the amount of such Borrowed Money shall be deemed to be
included in the aggregate consideration paid or payable by the Restricted
Group in relation to such acquisition;
(b) prior to the completion of the relevant acquisition UPCF has delivered to
the Agent financial projections based on assumptions which are no more
aggressive than those used in the preparation of the Information Memorandum
which demonstrate that the Restricted Group will be in compliance with the
undertakings set out in clause 12.1 for the period commencing on completion
of the relevant acquisition and ending on the Final Repayment Date;
(c) UPCF will have directly or indirectly greater than 50 per cent. of the
economic interest and voting interest in the acquired company or business
unless, if UPCF will have, directly or indirectly, 50 per cent. or less of
the economic interest and voting interest in the acquired company or
business, such acquisition is funded by means of a cash subscription for
additional equity in UPCF or an additional cash Subordinated Shareholder
Loan. If UPCF subsequently acquires more than 50 per cent. of the economic
interest and voting interest in any such company, (i) a Subordinated
Shareholder Loan which funded such acquisition may be repaid but the amount
of any such repayment shall be taken into account in calculating the
aggregate consideration paid in respect of such acquisition and/or (ii) any
additional equity subscribed to fund such acquisition may be redeemed and
any charge or pledge over such equity shall be released by the Security
Agent on such redemption at the expense of and following receipt of
reasonable written notice from UPCF but the amount of such additional
equity subscription shall be taken into account in calculating the
aggregate consideration paid in respect of such acquisition; and
(d) (in the case of the acquisition of a company or business which operates in
Eastern Europe) the acquisition must (i) have been notified to the Agent in
writing on or prior to the date of this Agreement or (ii) be of a company
or business having cable subscribers in Eastern Europe which when
aggregated with the cable subscribers in Eastern Europe at the date of
acquisition of companies or businesses acquired after the date of this
Agreement pursuant to this paragraph (d)(ii) do not exceed 150,000 or (iii)
be of the minority interest existing at the date of this Agreement in the
relevant company or business;
"Permitted Management Fees" means Management Fees (i) which are paid on
bona fide arms length terms in the ordinary course of business to a
Relevant Person or (ii) of up to Euro 5,000,000 in any financial year
provided that, at the time of payment, no Default is subsisting or
would occur as a result of such payment;
"Permitted Payments" means any payments or transfers of assets:
(a) to any Relevant Person in relation to transactions carried out
on bona fide arm's length commercial terms in the ordinary
course of business or on terms which are fair and reasonable
and in the best interests of the Restricted Group;
(b) by way of payment of Permitted Management Fees;
(c) by way of the repayment of the principal of the
Euro 50,000,000 note dated 17 February 1999 outstanding from
UPCF to UPC (as contributed by Belmarken to, and assumed by,
UPCF pursuant to the Restructuring) provided that no Default
has occurred and is continuing or would occur as a result of
such payment;
(d) to finance the payment by UPC of interest on the High Yield
Notes provided that (i) the then applicable ratio for the
purpose of clause 12.1(b) is 4.5:1 (or less) and (ii) no
Default has occurred and is continuing or would occur as a
result of such payment;
(e) by way of the repayment of the principal and interest of the
loan of up to US$200,000,000 made by UPC to UPCF to fund the
acquisition by Belmarken of Bratislava/KablePlus (as
contributed by Belmarken to, and assumed by, UPCF pursuant to
the Restructuring) provided that no Default has occurred and
is continuing or would occur as a result of such payment;
(f) by way of payment of interest on Subordinated Shareholder
Loans provided that (i) the then applicable ratio for the
purpose of clause 12.1(b) is 4.5:1 (or less) and (ii) no
Default has occurred and is continuing or would occur as a
result of such payment;
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(g) by way of distributions paid by UPCF in respect of its share
capital to UPC, or by way of repayment by UPCF to UPC in
respect of a Subordinated Shareholder Loan but only to the
extent that UPCF has either (i) received a cash distribution
from an Unrestricted Subsidiary of at least an equal amount to
such distribution or (ii) the payment is made from the
proceeds of sale of a disposal by UPCF permitted by paragraph
(vi) of the definition of "Permitted Disposals";
(h) by way of payment to any person or for any purpose to the
extent that any such payment would be permitted to be made to
UPC pursuant to paragraphs (c), (d), (e) or (f) above and
provided that any such payment shall automatically reduce the
liability to UPC under the relevant obligation referred to in
paragraph (c), (d), (e) or (f) above to the extent of the
amount paid; and
(i) by way of the repayment of any Subordinated Shareholder Loan
made by UPC or the redemption of equity share capital in UPCF
subscribed for by UPC to finance a Permitted European
Acquisition provided that (i) the repayment of such
Subordinated Shareholder Loan or the redemption of such equity
share capital would not cause the limit of Euro 400,000,000
referred to in paragraph (a) of the definition of "Permitted
European Acquisition" to be exceeded and (ii) no Default has
occurred and is continuing or would occur as a result of such
payment;
Provided further that, in the case of (c), (d), (e), (f), (h) and (i)
prior to making the relevant payment the Restricted Group is in
compliance with the undertakings set out in clause 12.1 and will be in
compliance with the undertakings set out in clause 12.1 on the next
Quarter Day following the making of such payment;
"Permitted Third Party Subordinated Debt" means any Borrowed Money
owing by a member of the Restricted Group to a creditor (not being a
Relevant Person) where (i) such creditor has subordinated its right to
receive payments in respect of such Borrowed Money to monies
outstanding under the Finance Documents on terms reasonably
satisfactory to the Agent and (ii) the terms of such Borrowed Money are
that (a) no principal of such Borrowed Money is payable during the
Finance Period and (b) no interest or any other sum is payable in
respect of such Borrowed Money during the Finance Period unless (in the
case of (b) only) the then applicable ratio for the purposes of 12.1(b)
is 4.5:1 (or less) and no Default has occurred and is continuing or
would occur as a result of such payment;
"Pledges of Shareholder Loans" means the Relevant Person Pledge of
Shareholder Loans and the Borrower Pledge of Shareholder Loans and such
other assignment or pledge of shareholder loans as may be executed in
favour of the Security Agent pursuant to the terms of this Agreement
from time to time;
"Principal Agreements" means the Interconnect Agreements and the
Shareholder Agreements as from time to time amended, varied, restated
or replaced together with any successor agreement, in each case in a
manner that does not constitute an Event of Default under clause
13.1(r);
"Pro-Forma Senior Debt Service" means the aggregate of (i) the total
amount of interest and any other charges paid in respect of the
Borrowed Money of the Restricted Group in respect of the twelve months
immediately preceding the date on which the relevant calculation under
this Agreement falls to be made and (ii) the principal amount of any
scheduled repayment of any Borrowed Money of the Restricted Group due
to be made during the twelve months immediately following the date on
which the relevant calculation falls to be made (including with respect
to Borrowed Money of the Restricted Group under revolving credit
facilities, an amount equal to the excess, if any, of (i) the aggregate
outstanding principal balance of all such Borrowed Money at the first
day of such 12 month period, minus (ii) the aggregate amount of all
commitments under such revolving credit facilities which, as of such
day, are scheduled to remain in effect as of the last day of such 12
month period);
"Qualifying Bank" means a person, being a bank or financial institution
(whether incorporated in the United Kingdom or elsewhere), which is
eligible to have payments made to it by the Borrowers under this
Agreement without any deduction or withholding in respect of Taxes
either (i) by virtue of a double taxation treaty (assuming for this
purpose only that a direction or consent such as is referred to in
clause 8.8 has been given), or (ii) by virtue of the fact that no such
deduction or withholding is imposed in the jurisdiction to which the
Obligors are subject;
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"Quarter Day" means 31st March, 30th June, 30th September and 31st
December in any year;
"Quarterly Management Accounts" means the quarterly consolidated
management accounts of the Restricted Group to be delivered (or which
may be delivered) to the Agent pursuant to clause 11.1(g) substantially
in the form set out in schedule 10 or containing information of the
same type as is required by such form;
"Quarterly Period" means each period of approximately three months
commencing on the day after a Quarter Day and ending on the next
following Quarter Day;
"Quotation Date" means, in relation to EURIBOR and National Currency
Units and any period for which EURIBOR is to be determined, the date
which is two Banking Days prior to the first day of the relevant period
and, in relation to any Optional Currency and any period for which
LIBOR is to be determined, the date on which quotations would
customarily be provided by leading banks in the London Interbank Market
for deposits in the relevant Optional Currency for delivery on the
first day of the relevant period;
"Radio Public" means Radio Public S.A., a company incorporated in
Belgium and having its registered office at 140, avenue Chazaal, 1030
Brussels, Belgium, registered in the register of commerce of Brussels
under no. 69,463 and in the register of commerce of Leuven under no.
44697;
"Reduction Period" means the period from 30 June 2002 until the Final
Repayment Date;
"Reference Banks" means the principal London offices of CIBC World
Markets plc, The Royal Bank of Scotland plc and The Toronto-Dominion
Bank and/or any other Bank appointed as such pursuant to clause 18.14;
"Relevant Jurisdiction" means each jurisdiction in which a member of
the Restricted Group is incorporated or formed or in which such member
of the Restricted Group has its principal place of business or owns any
material assets;
"Relevant Person" means UGC, any company (not being a member of the
Restricted Group) which is a Subsidiary of, or an Associated Company
of, UGC (other than Associated Companies of UGC which are its
Associated Companies by virtue of controlling UGC or owning
beneficially and/or legally directly or indirectly 10 per cent. or more
of the equity interests in UGC);
"Relevant Person Pledge of Shareholder Loans" means the pledge and
subordination of shareholder loans entered into by any Relevant Person
in respect of its loans to any Obligor in favour of the Security Agent
in the agreed form or such other form as may be reasonably agreed by
the Security Agent (acting on the instructions of the Majority Banks)
having regard to the applicable laws in the jurisdiction in which the
relevant loan is payable;
"Relevant Substance" means any substance whatsoever (whether in a solid
or liquid form or in the form of a gas or vapour and whether alone or
in combination with any other substance) or waste which is capable of
causing harm to man or any other living organism supported by the
environment, or damaging the environment or public health or welfare;
"Restricted Group" means (i) before the completion of the
Restructuring, the Obligors and their respective Subsidiaries from time
to time together with Eurosat SRL, Kabel Net Holding AS and Kabel Net
Brno AS or (ii) on and after the Restructuring, UPCF and its
Subsidiaries from time to time, (excluding, in either case,
Unrestricted Subsidiaries);
"Restricted Payment" means, in each case whether in cash, securities,
property or otherwise, (a) any direct or indirect distribution,
dividend or other payment on account of any class of its share capital
or capital stock or other securities, (b) any transfer of assets, loan,
gift or other payment or (c) any payment of principal of, or interest
on, any loan, in the case of each of (a), (b) and (c) to a Relevant
Person;
"Restructuring" means the transfer of all or part of the share capital
of certain members of the Restricted Group (together with any
inter-company payables from such member of the Restricted Group to its
Shareholders) to another member of the Restricted Group so that the
Restricted Group is UPCF and its Subsidiaries as set out in the chart
contained in Part B of schedule 13 pursuant to the Sale and Purchase
Agreements and the entering into of the other agreements and documents
referred to or contemplated therein;
"Revolving Drawing" means (i) in the case of each Borrower other than
Telekabel Wien, each borrowing by way of an advance under Facility A at
any time during the Facility A Revolving Period or, as the context
requires, the principal amount of that borrowing outstanding at any
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<PAGE>
relevant time and/or (ii) in the case of Telekabel Wien, each borrowing
by Telekabel Wien against the issue by Telekabel Wien of a Telekabel
Note under Facility A, or, as the context requires, the principal
amount of such Telekabel Note outstanding at any relevant time;
"Revolving Period" means, in relation to a Revolving Drawing, the
period for which such Revolving Drawing is, or is to be, made, as
specified in the Drawdown Notice for such Revolving Drawing, or as
otherwise determined in accordance with the provisions hereof;
"Revolving Period End Date" means, in relation to a Revolving Drawing,
the last day of the Revolving Period of such Revolving Drawing;
"RP Share Security" means the share pledge given to the Security Agent
by UPC in respect of its shareholding in Radio Public in the agreed
form;
"Sale and Purchase Agreements" means (i) the sale and purchase
agreement to be entered into between Belmarken, UPCF, Stipdon and UPC
Romania Holding B.V. in respect of, inter alia, the sale of Belmarken's
shareholding in Stipdon to UPCF, in the agreed form, (ii) the sale and
purchase agreement to be entered into between UPC, Belmarken, UPCF and
UPC Romania Holding B.V. in respect of, inter alia, the sale of Radio
Public, Janco and Telekabel Wien and (iii) the sale and purchase
agreement to be entered into between UPC and UPC Czech Holding B.V. in
respect of Kabel Net Holding AS and Kabel Net Brno AS;
"Secured Parties" means the Finance Parties, the High Yield Hedging
Banks and the Interest Rate Hedging Banks;
"Security Agent" means The Toronto-Dominion Bank of Triton Court, 14/18
Finsbury Square, London EC2A 1DB or such other person as may be
appointed as Security Agent pursuant to the Security Deed;
"Security Deed" means the Security Deed entered into or to be entered
into between the Secured Parties, each Subordinated Creditor, each
Security Provider and each Obligor;
"Security Documents" means the Pledges of Shareholder Loans, the Share
Securities and the Security Deed and all other mortgages, charges,
pledges, guarantees, inter-creditor agreements or deeds and other
instruments from time to time entered into in favour of the Secured
Parties (or any of them) by way of guarantee or other assurance and/or
security for or (in the case of inter-creditor agreements) otherwise in
relation to amounts owing to the Secured Parties (or any of them) in
respect of any Indebtedness of the Obligors under the Finance
Documents;
"Security Provider" has the meaning given to it in the Security Deed;
"Security Provider's Deed of Accession" has the meaning given to it in
the Security Deed;
"Senior Debt" means the aggregate principal amount of all Borrowed
Money of the Restricted Group other than (i) Subordinated Shareholder
Loans, (ii) loans from a member of the Restricted Group to another
member of the Restricted Group which are permitted by the terms of this
Agreement and (iii) any Permitted Third Party Subordinated Debt;
"Senior Debt Cash Interest Charges" means, in relation to any period,
the total amount of all interest, fees and commissions paid in respect
of the Senior Debt, Permitted Third Party Subordinated Debt and
Subordinated Shareholder Loans during such period (having taken into
account the effect of any Interest Rate Hedging Arrangements) together
with the amount of any interest, fees and commissions paid in respect
of the High Yield Notes during such period to the extent that the same
are funded by Permitted Payments except (in each case other than
payments in respect of Senior Debt) to the extent that such payments
are funded by distributions made by Unrestricted Subsidiaries to UPCF;
"Share Securities" means the Borrower Share Securities, the RP Share
Security, the CNA Share Security, the Stipdon Share Security, the
Telekabel Hungary Share Security and such other pledges/charges over
shares in any of the Obligors as may be executed in favour of the
Security Agent from time to time as security for the obligations of the
Obligors under this Agreement pursuant to clause 9.17 and, for the
avoidance of doubt, shall not include any pledge or charge over the
shares in TeleKabel Hungary not held by Stipdon;
"Shareholders Agreements" means the Austrian Agreements and the
Hungarian Agreement to the extent that they constitute agreements among
the shareholders;
"Six Month Period" means each period of two consecutive Quarterly
Periods ending on a Quarter Day;
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"Stipdon" means Stipdon Investments B.V. a private limited liability
company incorporated under the laws of The Netherlands with its
registered office at Frederick Roesterstraat 123, 1076 EE Amsterdam,
The Netherlands;
"Stipdon Share Security" means the share pledge given to the Security
Agent by UPCF in respect of its shareholding in Stipdon in the agreed
form;
"Subordinated Creditor" means any Relevant Person who has, at any
relevant time, entered into a Relevant Person Pledge of Shareholder
Loans and the Security Deed or a Security Provider's Deed of Accession;
"Subordinated Shareholder Loan" means any Borrowed Money of any member
of the Restricted Group owed to a Subordinated Creditor;
"Subsidiary" of a person means any company or entity directly or
indirectly controlled by such person, for which purpose "control" means
ownership of more than 50 per cent. of the economic and/or voting share
capital (or equivalent right of ownership of such company or entity);
"Target Day" means a day on which the Trans-European Automated
Real-time Gross Settlement Express Transfer System (TARGET) is
operating;
"Taxes" includes all present and future taxes, levies, imposts, duties,
fees or charges of a similar nature together with interest thereon and
penalties in respect thereof and "Taxation" shall be construed
accordingly;
"Telecommunications and Cable Laws" means all laws, statutes,
regulations and judgments relating to telecommunications, cable
television and data services applicable to any member of the Restricted
Group and/or the business carried on by any member of the Restricted
Group in any Relevant Jurisdiction;
"Telekabel Austrian Entities" means each of:
(a) Telekabel Wien;
(b) Telekabel-Fernsehnetz Region Baden Betriebsgesellschaft m.b.H,
a company incorporated in Austria with its corporate seat at
A-2514 Traiskirchen, Hauptplatz 13, and with registration
number FN 111149f;
(c) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen
Betriebsgesellschaft m.b.H, a company incorporated in Austria
with its corporate seat at A-2700 Wiener Neustadt,
Neunkirchner Strasse 24, and with registration number FN
114170y;
(d) Telekabel Graz Gesellschaft m.b.H, a company incorporated in
Austria with its corporate seat at A-8020 Graz, Lazarettgurtel
81, and with registration number FN 55555z;
(e) Telekabel Klagenfurt Gesellschaft m.b.H, a company
incorporated in Austria, with its corporate seat at A-9020
Klagenfurt, Villacher Strasse 161 and with registration number
FN 99365a; and
(f) CNA;
"TeleKabel Hungary" means TeleKabel Hungary N.V., a public limited
liability company incorporated under the laws of The Netherlands with
its registered office at Frederik Roeskestraat 123, 1076 EE Amsterdam,
The Netherlands;
"TeleKabel Hungary Share Security" means the share pledge given to the
Security Agent by Stipdon in respect of its 79.25% shareholding in
TeleKabel Hungary in the agreed form and, for the avoidance of doubt,
the share pledge shall not be in respect of the existing shareholding
in TeleKabel Hungary owned by The First Hungary Fund (or its successors
and assigns not being a Relevant Person or a member of the Restricted
Group);
"Telekabel Notes" means the bearer bonds to be issued by Telekabel Wien
in respect of each Drawing made to Telekabel Wien, in the form set out
in schedule 11;
"Telekabel Wien" means Telekabel Wien GmbH a company incorporated under
the laws of Austria with its corporate seat at Erlachgasse 116, 1100
Wien, Austria and with registration number FN 84116a;
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"Term Drawing" means (i) in the case of each Borrower other than
Telekabel Wien any borrowing by way of an advance under Facility B or,
as the context requires, the principal amount of that borrowing
outstanding at any relevant time and/or (ii) in the case of Telekabel
Wien each borrowing by Telekabel Wien against the issue by Telekabel
Wien of a Telekabel Note under Facility B or, as the context requires,
the principal amount of such Telekabel Note outstanding at any relevant
time;
"Term Repayment Date" means each date on which Facility B Outstandings
are to be repaid pursuant to clause 6.3;
"Total Cash Paying Debt" means Senior Debt to the extent that interest
is paid or payable in respect thereof and that part of the High Yield
Notes the proceeds of which have been on-lent to the Restricted Group;
"Total Commitments" means at any relevant time the aggregate of all the
Facility A Total Commitments and the Facility B Total Commitments at
such time;
"Total Outstandings" means the aggregate of the Facility A
Outstandings and the Facility B Outstanding;
"Transaction Documents" means this Agreement and the Security
Documents;
"Transferee" has the meaning given to it in clause 17.4;
"Transfer Certificate" means a certificate substantially in the terms
of schedule 5;
"Treaty" means the Treaty establishing the European Economic Community,
being the Treaty of Rome of 25 March 1957 as amended by the Single
European Act 1986 and the Maastricht Treaty (which was signed on 7
February 1992 and came into force on 1 November 1993) as amended,
varied or supplemented from time to time;
"UGC" means United GlobalCom, Inc. a corporation incorporated in the
State of Delaware, United States of America and having its principal
place of business at 4643 South Ulster, Suite 1300, Denver, Colorado
80237 U.S.A.;
"Unrestricted Subsidiaries" means any Subsidiaries of UPCF, the
acquisition cost of which and whose ongoing funding requirements are
not funded directly or indirectly by any member of the Restricted Group
by way of Drawings under this Agreement;
"UPC" means United Pan-Europe Communications N.V., a public limited
liability company incorporated under the laws of The Netherlands with
its registered office at Amsterdam and its business office at Frederik
Roeskestraat 123, 1076EE Amsterdam, The Netherlands;
"UPCF" means UPC Facility B.V., a private limited liability company
incorporated under the laws of The Netherlands with its registered
office at Amsterdam and its business office at Frederik Roekestraat
123, 1076EE Amsterdam, The Netherlands;
"UPC Group" means UPC and its Subsidiaries;
"Western Europe" means the countries that currently comprise the
European Community, Scandinavia, Luxembourg and Switzerland;
"Year 2000 Issue" means the failure of computer software, hardware and
firmware systems and equipment containing embedded microchips to
properly receive, transmit, process, manipulate, store, retrieve,
re-transmit or in any other way utilise data and information due to the
occurrence of the year 2000 or the inclusion of dates on or after 1
January, 2000.
1.3 Headings
Clause headings and the table of contents are inserted for convenience
of reference only and shall be ignored in the interpretation of this
Agreement.
1.4 Construction of certain terms
In this Agreement, unless the context otherwise requires:
(a) references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement
and references to this Agreement include its schedules;
(b) references to (or to any specified provision of) this
Agreement or any other document shall be construed as
references to this Agreement, that provision or that document
as in force for the time being and as from time to time
amended in accordance with its terms, or, as the case may be,
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<PAGE>
with the agreement of the relevant parties and (where such
consent is, by the terms of this Agreement or the relevant
document, required to be obtained as a condition to such
amendment being permitted) the prior written consent of the
Agent, all of the Banks or the Majority Banks (as the case may
be);
(c) references to a "regulation" include any present or future
regulation, rule, directive, requirement, request or guideline
(whether or not having the force of law but, if not having the
force of law, only if compliance therewith is in accordance
with the general practice of the relevant persons to whom it
is intended to apply or, in the case of clause 15.2 only, the
relevant Bank or its holding company) of any agency,
authority, central bank or government department or any
self-regulatory or other national or supra-national authority;
(d) words importing the plural shall include the singular and vice versa;
(e) references to a time of day are to London time unless otherwise
specified;
(f) references to a "person" shall be construed as including
references to an individual, firm, company, corporation,
unincorporated body of persons or any State or any of its
agencies;
(g) references to "assets" include all or part of any business,
undertaking, real property, personal property, uncalled
capital and any rights (whether actual or contingent, present
or future) to receive, or require delivery of, any of the
foregoing;
(h) references to a "guarantee" include references to an indemnity
or other assurance against financial loss including, without
limitation, an obligation to purchase assets or services as a
consequence of a default by any other person to pay any
Indebtedness and "guaranteed" shall be construed accordingly;
(i) references to the "equivalent" of an amount specified in a
particular currency (the "specified currency amount") shall be
construed as a reference to the amount of the other relevant
currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about 11
a.m. on the day on which the calculation falls to be made for
spot delivery as determined by the Agent in accordance with
its customary practices;
(j) references to the "agreed form" means, in relation to any
document, the form of such document as shall have been agreed
between the Borrowers and the Agent or the Security Agent, as
the case may be (acting for and on behalf of all of the
Banks);
(k) references to any enactment shall be deemed to include
references to such enactment as re-enacted, amended or
extended; and
(l) references to this "Agreement" include all Telekabel Notes
issued under this Agreement and references to sums payable
under this Agreement include sums payable under all Telekabel
Notes issued under this Agreement.
1.5 Majority Banks
Where this Agreement provides for any matter to be determined by
reference to the opinion of the Majority Banks or to be subject to the
consent or request of the Majority Banks or for any action to be taken
on the instructions of the Majority Banks, such opinion, consent,
request or instructions shall (as between the Banks) only be regarded
as having been validly given or issued by the Majority Banks if all the
Banks shall have received prior notice of the matter on which such
opinion, consent, request or instructions are required to be obtained
and the relevant majority of Banks shall have given or issued such
opinion, consent, request or instructions but so that (as between the
Obligors and the Banks), once informed by the Agent that such opinion,
consent, request or instructions have been given, the Obligors shall be
entitled (and bound) to assume that such notice shall have been duly
received by each Bank and that the relevant majority shall have been
obtained to constitute Majority Banks whether or not this is in fact
the case.
1.6 Agent's opinion
Where this Agreement provides for the Agent's opinion to determine
whether any matter would or is reasonably likely to have a Material
Adverse Effect the Agent shall act in accordance with the instructions
of the Majority Banks in making such determination.
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1.7 Bank's Commitments
For the purpose of the definition of "Majority Banks" in clause 1.2 and
of clause 18.12 references to the Commitment of a Bank shall, if the
Total Commitments have, at any relevant time, been reduced to zero, be
deemed to be a reference to the Commitment of that Bank immediately
prior to such reduction to zero.
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The Facilities
2.1 Amount
Upon and subject to the terms of this Agreement and in reliance on each
of the representations and warranties in clause 10, for the purposes
set out in clause 1.1, the Banks agree to make available to the
Borrowers:
(a) a reducing revolving credit and note issuance facility in the
principal sum of up to Euro 750,000,000 or the equivalent in Optional
Currencies; and
(b) a term loan and note issuance facility in the principal sum of
up to Euro 250,000,000 or the equivalent in Optional Currencies.
The obligation of each Bank under this Agreement shall be to contribute
that proportion of each Drawing which, as at the Drawdown Date of such
Drawing, its Commitment in respect of the relevant Facility bears to
the aggregate Commitments of all Banks in respect of that Facility. The
contribution of a Bank to a Drawing by Telekabel Wien shall be effected
by that Bank subscribing for the relevant proportion of the relevant
Telekabel Note.
2.2 Obligations several
The obligations of each Bank under this Agreement are several; the
failure of any Bank to perform such obligations shall not relieve any
Finance Party (other than to the defaulting party) or any Obligor of
any of their respective obligations or liabilities under this Agreement
nor shall the Agent, the Security Agent, or the Joint Arrangers be
responsible for the obligations of any Bank (except for its own
obligations, if any, as a Bank) nor shall any Bank be responsible for
the obligations of any other Bank under this Agreement.
2.3 Interests several
Notwithstanding any other term of this Agreement (but without prejudice
to the provisions of this Agreement relating to or requiring action by
the Majority Banks) the interests of the Secured Parties are several
and the amount due to each Secured Party is a separate and independent
debt. Each Secured Party shall have the right to protect and enforce
their respective rights arising out of this Agreement (but without
prejudice to the provisions of this Agreement relating to or requiring
action by the Majority Banks) and it shall not be necessary for any
other Secured Party to be joined as an additional party in any
proceedings for this purpose.
2.4 Telekabel Wien's interests several
For the avoidance of doubt, every obligation of Telekabel Wien under
this Agreement is several and it is acknowledged by all parties that
Telekabel Wien is not liable for any obligations of any other Obligor
under this Agreement.
2.5 Janco's interests several
Janco shall have no liability under the Finance Documents in excess of
the aggregate of the amounts drawn down and utilised by Janco under the
Finance Documents from time to time.
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Conditions
3.1 Documents and evidence
The obligation of each Bank to make its Commitment available shall be
subject to the condition that the Agent, or its duly authorised
representative, shall have received, not later than three Banking Days
before the day on which the first Drawing is to be made, the documents
and evidence specified in part I of schedule 3 in form and substance
(subject to clause 3.3) satisfactory to the Agent. UPCF undertakes to
deliver or procure the delivery to the Agent, or its duly authorised
representative on the Banking Day on which the first Drawing is made,
the documents and evidence specified in part II of schedule 3 in form
and substance (subject to clause 3.3) satisfactory to the Agent.
3.2 General conditions precedent
The obligation of each Bank to contribute to any Drawing is subject to
the further conditions that at the date of each Drawdown Notice and on
each Drawdown Date:
(a) the representations and warranties set out in clauses 10.1 and
10.2 to be repeated in accordance with clause 10.4 are true
and correct on and as of each such date as if each were made
with respect to the facts and circumstances existing at such
date; and
(b) no Default shall have occurred and be continuing or would result from the
making of such Drawing.
However in the case of a Revolving Drawing which would not, if drawn,
cause the aggregate Euro Amount of Revolving Drawings to exceed the
aggregate Euro Amount of Revolving Drawings outstanding immediately
prior to the making of that Revolving Drawing (after taking into
account of any Revolving Drawing due or due to be made or repaid on the
Drawdown Date of such Revolving Drawing) clause 3.2 shall not apply.
Nothing in this clause 3.2 shall be construed as constituting a waiver
of any right of the Banks (including, without limitation, their rights
under clause 13.2) arising from any Event of Default which shall have
occurred and be outstanding at the time of the drawing of the relevant
Drawing.
3.3 Waiver of conditions precedent
The conditions specified in this clause 3 are inserted solely for the
benefit of the Banks and may be waived on their behalf in whole or in
part and with or without conditions by the Agent acting on the
instructions of all of the Banks in respect of the first Drawing and on
the instructions of the Majority Banks with respect to any other
Drawing and the conditions subsequent specified in clause 3.6 without
prejudicing the right of the Agent acting on such instructions to
require fulfilment of such conditions in whole or in part in respect of
any other Drawing.
3.4 Notification
The Agent shall notify the Banks and UPCF promptly after receipt by it
of the documents and evidence referred to in clause 3.1 in form and
substance reasonably satisfactory to it.
3.5 Existing UPC Security
UPCF undertakes to procure that the Encumbrances referred to in
paragraph (b)(i) of the definition of Permitted Encumbrances are
discharged before or contemporaneously with the making of the Term
Drawings required to be made pursuant to clause 4.11.
3.6 Conditions subsequent
UPCF undertakes to procure that:
(a) an entry is made within two Banking Days of the first Drawing
under this Agreement in the share register of Radio Public in
respect of the RP Share Security, signed by UPC and that a
copy, certified as a true copy by an Authorised Officer of
UPCF, is delivered to the Agent as soon as practicable
thereafter;
(b) an entry is made within two Banking Days of the first Drawing
under this Agreement in the shareholders registers
("aksjeeierbok") of Janco evidencing that the pledge in
respect of the shares of Janco given by UPC in favour of the
Security Agent has been duly noted therein and that copies,
certified as true copies by an Authorised Officer of UPCF, are
delivered to the Agent as soon as practicable thereafter; and
(c) as soon as practicable after the date of the first Drawing
under this Agreement and in any event by no later than 31
October 1999, the Norwegian Asset Security is released.
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Drawings
4.1 Maximum Outstandings
(a) Period 1
Prior to (and including) 30th June, 2001, the amount of Senior
Debt shall not exceed 5.75 times Adjusted Annualised
Consolidated EBITDA (determined by reference to the Six Month
Period ending on the most recent Quarter Day in respect of
which Quarterly Management Accounts have been delivered to the
Agent under this Agreement) and no Drawings shall be made if,
following the making of such Drawing, such limit would be
exceeded.
(b) Period 2
On each day falling within the period set out in column (I)
below, the amount of Senior Debt shall not exceed the multiple
of Annualised Consolidated EBITDA (determined by reference to
the Six Month Period ending on the most recent Quarter Day in
respect of which Quarterly Management Accounts have been
delivered to the Agent under this Agreement) set out against
such period in column (II) below, and no Drawings shall be
made if, following the making of such Drawing, such limit
would be exceeded:
(I) (II)
Period Multiple of Annualised
Consolidated EBITDA
from (and including) 1st July, 2001 to (and 5.0
including) 31st March, 2002
from (and including) 1st April, 2002 to (and 4.5
including) 30th September, 2002
from (and including) 1st October, 2002 to (and 4.0
including) 31st March, 2003
from (and including) 1st April, 2003 to (and 3.5
including) 31st December, 2003
from (and including) 1st January, 2004 and 3.0
thereafter
(c) The aggregate principal amount of Drawings outstanding under the
Facilities shall not at any time exceed the Facilities' Limit or its
equivalent in Optional Currencies and no Drawing shall be made under
the Agreement if, on the date of such Drawing, the Euro Amount of the
Total Outstandings would exceed such limit. The aggregate Euro Amount
of Drawings outstanding under Facility A shall not at any time exceed
the Facility A Limit and no Drawing shall be made under Facility A if,
on the date of such Drawing, the Facility A Outstandings would exceed
such limit. The aggregate Euro Amount of Drawings outstanding under
Facility B shall not at any time exceed the Facility B Limit and no
Drawing shall be made under Facility B if, on the date of such Drawing
the Facility B Outstandings would exceed such limit.
4.2 Drawdown
Subject to the terms and conditions of this Agreement, a Drawing will
be made available to a Borrower following receipt by the Agent from
such Borrower of a Drawdown Notice (in the case of a Borrower other
than UPCF, countersigned by UPCF) not later than 10 a.m. on the third
Banking Day before the proposed Drawdown Date. A Drawdown Notice shall
be effective on actual receipt by the Agent and, once given, shall,
subject as provided in clause 5.9(a), be irrevocable. No Drawdown
Notice may be given in respect of an amount which is the subject of a
notice received by the Agent under clause 6.9.
4.3 Term and Amount of Revolving Drawings
(a) Revolving Drawings may be made only on Banking Days falling
within the Facility A Revolving Period and may be borrowed
only for a Revolving Period of one month or two, three or six
months or (with the prior agreement of all of the Banks) any
other period in any such case ending not later than the last
day of the Facility A Revolving Period provided that any
Revolving Drawings made less than one month prior to the last
day of the Facility A Revolving Period may only be borrowed
for the period up to and ending on such date;
(b) each Revolving Drawing (other than Revolving Drawings made
against the issue by Telekabel Wien of Telekabel Notes) shall
be of a Euro Amount which is a minimum of Euro 10,000,000
and, in the case of any such Revolving Drawing to be made in
euro, an integral multiple of Euro 5,000,000 or the balance
of the Facility A Total Commitments;
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(c) each Revolving Drawing to be made against the issue by
Telekabel Wien of a Telekabel Note shall be of a Euro Amount
which is a minimum of Euro 8,000,000 (unless such Telekabel
Note is to be issued in Austrian Schillings in which event it
shall be in a minimum amount of Austrian Schillings
100,000,000) and, in the case of any such Revolving Drawing to
be made in euro, an integral multiple of Euro 2,000,000 or
the balance of the Facility A Total Commitments;
(d) each Revolving Drawing shall be denominated in one currency only;
(e) no Revolving Drawing may be drawn down if, as a result, there
would be either more than (i) ten Revolving Drawings then
outstanding, other than Revolving Drawings made against the
issue by Telekabel Wien of Telekabel Notes or (ii) 25
Revolving Drawings made against the issue by Telekabel Wien of
Telekabel Notes.
4.4 Term and Amount of Term Drawings
(a) Term Drawings may only be made on any one Banking Day falling
on or before 3rd August, 1999 (or such other date as may be
agreed by the Agent) in the amounts and for the purposes
referred to in clause 1.1(a)(B). The Borrowers shall not be
permitted to make any other Term Drawings;
(b) each Term Drawing shall be denominated in one currency only
and shall remain in that currency until it is repaid in full;
and
(c) the Facility B Total Commitments will be automatically
cancelled following the making of the Term Drawings referred
to in paragraph (a) above.
4.5 Selection of currencies
Subject to the provisions of clause 4.6, if a Borrower so requests in
the Drawdown Notice for a Revolving Drawing, such Revolving Drawing may
be made in an Optional Currency.
4.6 Limit on currencies; non-availability
(A) A Revolving Drawing may not be made in an Optional Currency if (i)
in consequence thereof there would be Revolving Drawings outstanding in
more than 5 different currencies or (ii) the Agent determines after
consultation with the Reference Banks (which determination shall be
conclusive) at any time prior to 10 a.m. (local time in the place of
payment) on the Drawdown Date that by reason of any change in currency
availability, currency exchange rates or exchange controls it is or
will be impracticable for the relevant Drawing to be drawn down in that
Optional Currency. Accordingly, in any such event, the relevant Drawing
shall be drawn down in euros.
(B) If any Bank reasonably determines that deposits of the relevant
Optional Currency are not readily available to such Bank in an amount
comparable with such Bank's portion of any Revolving Drawing and so
notifies the Agent not later than 3 p.m. on the third Banking Day
before the proposed Drawdown Date the Agent shall so notify the
relevant Borrower and such Bank's proportion of such Revolving Advance
shall be drawn down in euro.
4.7 Currency Amounts
If a Drawing is to be made in an Optional Currency, the Banks shall,
subject to clause 3.2 and clause 4.6(B), advance to the relevant
Borrower on the making of such Drawing, the amount of such Optional
Currency requested. The Euro Amount of such Drawing shall be the amount
of euros (as determined by the Agent) which would be required to
purchase the amount of such Optional Currency advanced at the average
of the spot rates of exchange quoted to the Agent by the Reference
Banks to be ruling in the London Foreign Exchange Market for the
purchase of such Optional Currency with euros on receipt of the
relevant Drawdown Notice together with the amount of euros (if any)
drawn down in respect of such Drawing pursuant to clause 4.6(B). If a
Drawing is to be drawn down in euros, the Banks shall, subject to
clause 3.2, advance to the relevant Borrower on making of such Drawing,
the amounts of euros requested.
4.8 Notification to Banks
On the date of receipt of a Drawdown Notice complying with the terms of
this Agreement the Agent shall notify each Bank thereof, of the date on
which the relevant Drawing is to be made and (in the case of a
Revolving Drawing) the Revolving Period thereof. Subject to the
provisions of clause 3, on the date for the making of a Revolving
Drawing each of the Banks shall (subject to clause 4.9) make available
to the Agent its portion of such Revolving Drawing in accordance with
clause 8.2.
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4.9 Repayment of Revolving Drawings
If a Revolving Drawing (the "new Revolving Drawing") is to be made on a
day on which another Revolving Drawing (the "maturing Revolving
Drawing") denominated in the same currency and under the same Facility
as the new Revolving Drawing is due to be repaid by the same Borrower
then, subject to the terms of this Agreement and so long as the
conditions referred to in clause 3.2 shall have been satisfied in
relation to the new Revolving Drawing (if applicable) (i) the maturing
Revolving Drawing shall be deemed to have been repaid on its Revolving
Period End Date either in whole (if the new Revolving Drawing is equal
to or greater than the maturing Revolving Drawing) or in part (if the
new Revolving Drawing is less than the maturing Revolving Drawing) and
the relevant Borrower shall only be obliged to repay the principal
amount by which the maturing Revolving Drawing exceeds the new
Revolving Drawing and (ii) to the extent that the maturing Revolving
Drawing is so deemed to have been repaid, the principal amount of the
new Revolving Drawing to be made on such date shall be deemed to have
been credited to the account of the relevant Borrower by the Agent on
behalf of the Banks in accordance with the terms of this Agreement and
the Banks shall only be obliged to make available to the relevant
Borrower pursuant to clause 4.8 a principal amount (if any) equal to
the amount by which the new Revolving Drawing exceeds the maturing
Revolving Drawing.
4.10 Division and consolidation of Term Drawings
The relevant Borrower may by notice received by the Agent not later
than 10 a.m. on the third Banking Day before the beginning of each
Interest Period in respect of a Term Drawing specify that such Term
Drawing shall be either (a) divided into more than one Term Drawing, or
(b) consolidated with any other Term Drawing outstanding to such
Borrower in respect of the Facility B Outstandings in respect of which
the then current Interest Period ends on the same day as the current
Interest Period in respect of such Term Drawing. No more than five Term
Drawings (other than Term Drawings made against the issue by Telekabel
Wien of a Telekabel Note) and no more than twenty Term Drawings made
against the issue by Telekabel Wien of Telekabel Notes may be
outstanding under this Agreement at any time. If more than one Term
Drawing (other than a Term Drawing made against the issue by Telekabel
Wien of a Telekabel Note) is outstanding each such Term Drawing shall
be of a Euro Amount which is a minimum of Euro 10,000,000 and, in the
case of such a Term Drawing in euro, an integral multiple of
Euro 5,000,000 or the balance of the Facility B Outstandings. If more
than one Term Drawing made against the issue by Telekabel Wien of a
Telekabel Note is outstanding each such Term Drawing shall be of a Euro
Amount which is a minimum of Euro 8,000,000 (unless such Telekabel
Note is to be issued in Austrian Schillings in which event it shall be
of a minimum amount of Austrian Schillings 100,000,000) and, in the
case of any such Term Drawing in euro, an integral multiple of
Euro 2,000,000 or the balance of the Facility B Total Commitments.
4.11 Initial Drawings
Subject to the provisions of clause 3.1, the Borrowers undertake to
comply with the terms of this clause 4 so as to ensure that Drawdown
Notices are delivered for Term Drawings to be made on or before 3rd
August, 1999 (or such other date as may be agreed by the Agent) in
amounts not less than the aggregate principal amounts outstanding to
the relevant Borrower under the Existing UPC Senior Facility together
with all unpaid interest thereon and any other amounts payable in
relation thereto.
The Borrowers irrevocably authorise the Agent, and the Agent agrees, to
remit all or the relevant part of the proceeds of such Term Drawings in
discharge of the obligations of the relevant Borrowers under the
Existing UPC Senior Facility and the Agent's obligations under clause
8.2 in respect of such Term Drawings shall be to remit the balance
following such discharge (if any) to the relevant Borrower forthwith.
4.12 Revaluation of Term Drawings in Optional Currency
(a) If a Term Drawing has been drawn down in an Optional Currency, prior
to the end of each Interest Period, there shall be calculated the
difference between the Euro Amount of such Term Drawing for the
current Interest Period (the "Old Euro Amount") and for the next
Interest Period (the "New Euro Amount"). The New Euro Amount will be
the amount of euros that would be required to purchase the relevant
amount of such Optional Currency on the basis of the spot rate of
exchange reasonably determined by the Agent by reference to the
relevant page of the Reuter Monitor Money Rates Service (or such other
page as may replace such page on such service for the purpose of
displaying spot rates of exchange) to be ruling in the London Foreign
Exchange Market for the purchase of such Optional Currency with euros
at or about 11 a.m. on the third Banking Day before the start of that
Interest Period.
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(b) At the end of the current Interest Period the Euro Amount of
the relevant Term Drawing shall be the New Euro Amount.
(c) If the determination of the New Euro Amount of a Term Drawing
would cause the Facility B Limit to be exceeded the relevant
Borrower shall forthwith pay to the Agent for the account of
the Banks an amount in such Optional Currency required to
ensure that such limit is not exceeded and the New Euro Amount
of such Drawing shall be recalculated accordingly.
4.13 Application of proceeds
Without prejudice to the Borrowers' obligations under clause 11.1(c),
none of the Finance Parties shall have any responsibility for the
application of the proceeds of any Drawing by the relevant Borrower.
4.14 Telekabel Notes
Each borrowing of a portion of the Commitments to be made by Telekabel
Wien under this Agreement shall be made against the issue by Telekabel
Wien of a Telekabel Note to the Agent.
No more than 40 Drawings made against the issue by Telekabel Wien of
Telekabel Notes may be outstanding at any time.
At the same time as and together with a Drawdown Notice in connection
with any such Drawing to be made to Telekabel Wien, Telekabel Wien
shall deliver to the Agent an original Telekabel Note the details set
out in which shall correspond to the details of the Drawing described
in such Drawdown Notice. Telekabel Wien shall also deliver to the Agent
original Telekabel Notes the details of which correspond with the
relevant Term Drawings in respect of each Term Drawing outstanding to
Telekabel Wien either on consolidation pursuant to clause 4.10(b) or
together with any relevant notice given pursuant to clause 4.11.
The Banks shall be under no obligation to make any funds available to
Telekabel Wien unless the Agent shall have received such Telekabel Note
in a form satisfactory to it.
Telekabel Wien hereby authorises the Agent to complete the provisions
in each Telekabel Note relating to the calculation of interest payable
in connection therewith.
On the condition that the relevant Telekabel Note has been duly
completed and executed and provided that the conditions set out in
clause 3 have been satisfied, the Banks shall contribute to the Drawing
to be made to Telekabel Wien against the relevant Telekabel Note in
accordance with the provisions of clauses 4.2 to 4.14 (inclusive).
The Agent shall hold each Telekabel Note for and on behalf of the Banks
and shall not part with possession of such Telekabel Note without the
consent of the Banks. All payments received by the Agent under any
Telekabel Note shall be applied in accordance with the provisions of
clause 8. For the avoidance of doubt, for the purposes of the Security
Deed, all Indebtedness of Telekabel Wien under Telekabel Notes shall
constitute "Senior Indebtedness" (as defined in the Security Deed).
The Agent shall be entitled to place all Telekabel Notes deposited with
it in any safe deposit, safe or receptacle selected by the Agent and
the Agent shall not be responsible for any loss incurred in connection
with any such deposit, unless such loss results from the Agent's gross
negligence or wilful misconduct.
The Agent shall keep a full and complete record of all Telekabel Notes
and of their issue, payment, cancellation and destruction and of all
replacement Telekabel Notes issued in substitution for lost, stolen,
mutilated, defaced or destroyed Telekabel Notes. The Agent may cause to
be issued replacement Telekabel Notes in place of Telekabel Notes which
have been lost, stolen, mutilated, defaced or destroyed and Telekabel
Wien will cause replacement Telekabel Notes to be delivered to the
Agent for this purpose upon the provision to Telekabel Wien of such
evidence and indemnity in favour of Telekabel Wien as Telekabel Wien
shall reasonably require.
4.15 Subsidiary Drawings
UPCF shall not be permitted to on-lend any funds drawn down by it under
the Facilities to Telekabel Wien or Janco without the consent of the
Majority Banks. Telekabel Wien and Janco undertake that such funds as
they may respectively require for the purposes set out in clause 1.1
shall be drawn by them direct from the Banks in accordance with the
terms of this Agreement.
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Interest; alternative interest rates
5.1 Normal interest rate
The Borrowers shall pay interest on each Drawing made to them in
respect of each Interest Period relating thereto on each Interest
Payment Date (and, in the case of an Drawing having an Interest Period
of more than six months, by instalments on the dates falling at six
monthly intervals from the first day of such Interest Period and on the
last day of such Interest Period) at the rate per annum determined by
the Agent to be the aggregate of (a) the applicable Margin, (b) the
Additional Cost and (c) EURIBOR (in the case of Drawings denominated in
euro) or LIBOR (in the case of Drawings denominated other than in
euro).
5.2 Applicable Margin
The Margin in relation to any Drawing and any unpaid sum due under this
Agreement under clause 5.6 shall (subject to the proviso below) be the
rate set out in column (I) below against the ratio of Total Cash Paying
Debt to Annualised Consolidated EBITDA (determined by reference to the
Six Month Period ending on the most recent Quarter Day in respect of
which Quarterly Management Accounts have been delivered to the Agent
under this Agreement) set out in column II below as at the first day of
the relevant Interest Period or, in relation to any unpaid sum due
under clause 5.6, the first day of the relevant period determined in
accordance with clause 5.6:
(I) (II)
Rate (per cent. per annum) Ratio of Total Cash Paying Debt to Annualised
Consolidated EBITDA
2.000 6.5:1 or greater (or negative)
1.625 greater than or equal to 6:1 but less than 6.5:1
1.500 greater than or equal to 5:1 but less than 6:1
1.250 greater than or equal to 3.5:1 but less than 5:1
0.750 Less than 3.5:1 (but not negative)
Provided that (i) if on the relevant date on which the Margin is to be
determined any of the Borrowers have failed to deliver any relevant
financial statements then due under this Agreement within the time
period for the Borrowers so to deliver such financial statements then
the Margin for such Drawing or such unpaid sum shall be 2.00 per cent.
per annum for the period until such financial statements are delivered
and (ii) the Margin applicable at all times up to the date falling six
months after the date of this Agreement shall be 1.50 or such greater
rate which may be applicable in accordance with column (II) above.
5.3 Interest Periods
The Interest Period in relation to each Revolving Drawing shall be of a
duration equal to the Revolving Period of such Revolving Drawing.
Interest Periods in respect of Term Drawings shall be of a duration
determined in accordance with clauses 5.4 and 5.5.
5.4 Selection of Interest Periods for Term Drawings
The relevant Borrower may by notice received by the Agent not later
than 10 a.m. on the third Banking Day before the beginning of each
Interest Period in respect of a Term Drawing specify whether such
Interest Period shall have a duration of one month or two, three or six
months or (with the prior agreement of all of the Banks) any other
period.
5.5 Determination of Interest Periods for Term Drawings
Every Interest Period in respect of a Term Drawing shall be of the
duration specified by the Borrowers pursuant to clause 5.4 but so that:
(a) ((i)) (if there is more than one Term Drawing
outstanding) Interest Periods in respect of Term
Drawings of an aggregate amount at least equal to the
amount of the Facility A Outstandings to be repaid on
any Term Repayment Date shall end on such date; and
(ii) (if there is only one Term Drawing outstanding) if
any Interest Period in respect thereof would
otherwise overrun a Term Repayment Date then such
Interest Period shall end on such date; and
(b) if any Borrower fails to specify the duration of an Interest
Period in accordance with the provisions of clause 5.4 and
this clause 5.5 such Interest Period shall, subject to this
clause 5.5, have a duration of three months.
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5.6 Interest for late payment
If any Borrower fails to pay any sum (including, without limitation,
any sum payable pursuant to this clause 5.6) on its due date for
payment under this Agreement and/or any Telekabel Note the relevant
Borrower shall pay interest on such sum from the due date up to the
date of actual payment (as well after as before judgment) at a rate
determined by the Agent pursuant to this clause 5.6. The period
beginning on such due date and ending on such date of payment shall be
divided into successive periods of not more than three months as
selected by the Agent (after consultation with the Banks so far as
reasonably practicable in the circumstances) each of which (other than
the first, which shall commence on such due date) shall commence on the
last day of the preceding such period. The rate of interest applicable
to each such period shall be the aggregate (as determined by the Agent)
of (a) 1.5 per cent per annum, (b) the applicable Margin, (c) the
Additional Cost and (d) EURIBOR (in the case of amounts in euros) or
LIBOR (in the case of amounts in currencies other than euros), unless
such unpaid sum is an amount of principal which shall have become due
and payable, by reason of a declaration by the Agent under clause
13.2(b) or a prepayment pursuant to clauses 6.5 or 15.1, other than on
an Interest Payment Date, in which case the first such period selected
by the Agent shall end on such Interest Payment Date and interest shall
be payable on such unpaid sum during such period at a rate 1.5 per
cent. above the rate applicable thereto immediately before it shall
have become so due and payable. Interest under this clause 5.6 shall be
due and payable on the last day of each period determined by the Agent
pursuant to this clause 5.6 or, if earlier, on the date on which the
sum in respect of which such interest is accruing shall actually be
paid. If, for the reasons specified in clause 5.9(a)(i) or 5.9(a)(ii),
the Agent is unable to determine a rate in accordance with the
foregoing provisions of this clause 5.6, each Bank shall promptly
notify the Agent of the cost of funds to such Bank and interest on any
sum not paid on its due date for payment shall be calculated for each
Bank at a rate determined by the Agent to be 1.5 per cent. per annum
above the aggregate of the applicable Margin and the cost of funds to
such Bank.
5.7 Notification of interest periods and interest rates
The Agent shall notify the relevant Borrower and the Banks promptly of
the amount of each Term Drawing, the duration of each Interest Period
or other period for the calculation of interest (or, as the case may
be, default interest) and of each rate of interest determined by it
under this clause 5.
5.8 Reference Bank quotations
If (at any time when Reference Bank quotations are required having
regard to the definition of "EURIBOR" or "LIBOR" (as appropriate) in
clause 1.2) any Reference Bank is unable or otherwise fails to furnish
a quotation for the purpose of calculating EURIBOR or LIBOR, the
interest rate for the relevant Revolving Period, Interest Period or
other period shall be determined, subject to clause 5.9, on the basis
of the quotations furnished by the remaining Reference Banks.
5.9 Market disruption; non-availability
(a) If and whenever, at any time prior to the commencement of any
Interest Period:
(i) (at any time when Reference Bank quotations are
required having regard to the definition of "EURIBOR"
or "LIBOR" in clause 1.2) the Agent shall have
determined, after consultation with the Reference
Banks (which determination shall, in the absence of
manifest error, be conclusive), that adequate and
fair means do not exist for ascertaining EURIBOR or
LIBOR (as appropriate) during such Interest Period;
or
(ii) none of the Reference Banks supplies the Agent with a
quotation for the purpose of calculating EURIBOR or
LIBOR (as appropriate); or
(iii) the Agent shall have received notification from Banks
with Contributions aggregating not less than
one-third of the total of the Loan (or, prior to the
first Drawdown Date, Commitments aggregating not less
than one-third of the Total Commitments) that
deposits in euros are not available to such Banks in
the ordinary course of business in sufficient amounts
to fund their contributions to such Drawing or that
EURIBOR or LIBOR (as appropriate) does not accurately
reflect the cost to such Banks of obtaining such
deposits;
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the Agent shall forthwith give notice (a "Determination Notice")
to the Borrowers and to each of the Banks and, in the case of a
Revolving Drawing, such Drawing shall not be made. A
Determination Notice shall contain particulars of the relevant
circumstances giving rise to its issue.
(b) After the giving of any Determination Notice the undrawn amount
of the Total Commitments shall not be borrowed until the
circumstances giving rise to the issue of the Determination
Notice have ceased.
(c) During the period of 10 days after any Determination Notice has
been given by the Agent under clause 5.9(a) the Agent (after
consultation with, and on behalf of, the Banks) shall negotiate
with UPCF with a view to agreeing an alternative basis for
calculating interest and/or for funding Drawings. Any such basis
agreed between the Agent (with the consent of the Banks) and UPCF
shall take effect in accordance with its terms. If an alternative
basis is not so agreed during such period of 10 days each Bank
shall certify an alternative basis (the "Substitute Basis") for
making available or, as the case may be, maintaining its
contribution to the Drawing. The Substitute Basis may (without
limitation) include alternative interest periods, alternative
currencies or alternative rates of interest but shall include a
margin above the cost of funds including Additional Cost, if any,
to such Bank equivalent to the Margin. Each Substitute Basis so
certified shall be binding upon the Borrowers and shall take
effect in accordance with its terms from the date specified in
the Determination Notice until such time as the circumstances
specified in clause 5.9(a)(iii) and either 5.9(a)(i) or (ii) do
not apply whereupon the normal interest rate fixing provisions of
this Agreement shall apply.
6
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Repayment, prepayment and cancellation
6.1 Repayment of Revolving Drawings
The Borrowers agree to repay each Revolving Drawing in respect of which
the Revolving Period End Date falls prior to the last day of the
Facility A Revolving Period on such Revolving Period End Date in the
currency in which it is denominated.
6.2 Reduction of Tranche A Commitment
Each Borrower shall repay the Tranche A Revolving Drawings so that the
Facility A Outstandings on each date specified in column (1) below are
not more than the Euro Amount specified in column (2) below opposite
the relevant date (each, a "Reduction Date"):
(1) (2)
Date Euro Amount
(Euro 000)
30 June 2002 727,500
30 September 2002 705,000
31 December 2002 682,500
31 March 2003 652,500
30 June 2003 622,500
30 September 2003 592,500
31 December 2003 562,500
31 March 2004 525,000
30 June 2004 487,500
30 September 2004 450,000
31 December 2004 412,500
31 March 2005 365,625
30 June 2005 318,750
30 September 2005 271,875
31 December 2005 225,000
31 March 2006 178,125
27 July 2006 0
The Tranche A Commitments of each Bank shall be reduced on each
Reduction Date accordingly and the Facility A Outstandings shall not
thereafter exceed the amount set opposite such Reduction Date.
6.3 Repayment of the Facility B Loan
The Borrowers shall repay the Term Drawings so that the Facility B
Outstandings on each date specified in column (1) below are not more
than the Euro Amount specified in column (2) below opposite the
relevant date (each a "Reduction Date").
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(1) (2)
Date Euro Amount
(Euro 000)
30 June 2002 242,500
30 September 2002 235,000
31 December 2002 227,500
31 March 2003 217,500
30 June 2003 207,500
30 September 2003 197,500
31 December 2003 187,500
31 March 2004 175,000
30 June 2004 162,500
30 September 2004 150,000
31 December 2004 137,500
31 March 2005 121,875
30 June 2005 106,250
30 September 2005 90,625
31 December 2005 75,000
31 March 2006 59,375
27 July 2006 0
6.4 Voluntary prepayment
Any Borrower may, without premium or penalty, prepay any Drawing made
to it (in whole or in part provided that, in the case of part, the Euro
Amount of such part is a minimum of Euro 10,000,000 and, in the case
of Drawings made in euro, an integral multiple of Euro 5,000,000) at
any time subject to the provisions of this clause 6. Any amount prepaid
pursuant to this clause 6.4 shall be applied against the Facility A
Outstandings and the Facility B Outstandings in a proportion of 3:1. If
it is not possible to apply the amount prepaid in such proportion
because there are insufficient Facility A Outstandings, or, as the case
may be, Facility B Outstandings, any amount that cannot be applied
against the Facility A Outstandings shall be applied against the
Facility B Outstandings and vice versa. Each Euro Amount in respect of
each subsequent Reduction Date specified in clause 6.2 shall be reduced
by each amount prepaid under this clause 6.4 on or after 30 June 2002
in respect of the Facility A Outstandings. Each Euro Amount in respect
of each subsequent Reduction Date specified in clause 6.3 shall be
reduced by each amount prepaid under this clause 6.4 in respect of the
Facility B Outstandings.
6.5 Additional voluntary prepayment
The Borrowers may also prepay (in whole but not in part only), without
premium or penalty, but without prejudice to its obligations under
clauses 5.9, 8.5, 8.6 and 15.2, the Contribution of any Bank to which
any Borrower shall have become obliged to pay additional amounts under
clause 5.9, 8.5 or 15.2. Upon any notice of such prepayment being
given, the Commitment of the relevant Bank shall be reduced to zero and
the amount of the Total Commitments shall be reduced accordingly. Any
amount prepaid pursuant to this clause 6.5 shall be applied against the
Facility A Outstandings to the extent of the relevant Bank's Facility A
Outstandings and the Facility B Outstandings to the extent of the
relevant Bank's Facility B Outstandings. Each Euro Amount in respect of
each subsequent Reduction Date specified in clause 6.2 shall be reduced
by each amount prepaid under this clause 6.5 in respect of the Facility
A Outstandings. Each Euro Amount in respect of each subsequent
Reduction Date specified in clause 6.3 shall be reduced by each amount
prepaid under this clause 6.5 in respect of the Facility B
Outstandings.
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6.6 Mandatory prepayment
(a) The Borrowers shall be obliged to prepay the Loan in whole within 5 Banking
Days of written request from the Agent (which it shall give unless
otherwise instructed by all of the Banks in the case of (A) below and the
Majority Banks in the case of (B) below) following the occurrence of a
Change of Ownership. For the purpose of this clause 6.6(a), "Change of
Ownership" means any of (A) UPC (i) is not or ceases to be the direct or
indirect legal and beneficial owner of more than 50 per cent. of the issued
share capital of UPCF or (ii) ceases to Control UPCF or (B) UGC ceases (i)
directly or indirectly to own more than 50 per cent. of the issued share
capital of UPC and (ii) to Control UPC.
(b) Without prejudice to the obligations of the Borrowers under paragraph (a)
above and subject to the terms of the Security Deed, if UPC disposes of any
part of its interest in the equity share capital of UPCF, (unless otherwise
agreed in writing by the Agent acting on the instructions of the Majority
Banks) the Borrowers undertake to prepay the Loan in an amount equal to the
net proceeds of such disposal or the cash equivalent thereof.
(c) The Borrowers undertake (unless otherwise agreed in writing by the Agent
acting on the instructions of the Majority Banks), subject to the terms of
the Security Deed, to apply and to procure the application of all of the
proceeds of all disposals or the cash equivalent thereof (other than under
paragraphs (i) to (ix) inclusive and (x)(A) of the definition of Permitted
Disposals) made by any member of the Restricted Group of assets comprising
or contributing in aggregate a percentage value of (A) 20 per cent. or more
of the total assets, revenues or EBITDA of the Restricted Group (taken as a
whole) in prepayment of the Loan (or, if less the amount of the Loan) and
(B) not less than 10 per cent. but not more than 20 per cent. of the total
assets, revenues or EBITDA of the Restricted Group (taken as a whole) in
prepayment of the Loan (or, if less the amount of the Loan) unless in the
case of (B) only the entire amount of such proceeds are, within 12 months
of receipt, reinvested in the business of the Restricted Group in which
event the percentage value of such assets shall not be taken into account
for the purposes of this clause 6.6(c). Prior to being reinvested in the
business of the Restricted Group, the entire amount to be reinvested shall
be either (i) used to prepay the Loan (and, for the avoidance of doubt, the
Borrowers shall not be required to cancel a corresponding amount of the
Facility A Commitments) or (ii) deposited with the Agent or as the Agent
may reasonably direct in an account (or accounts) bearing interest at rates
customarily offered by the Agent in such circumstances on terms that the
principal amount so deposited may only be released by the making of the
relevant payment or payments by which such amount will be reinvested in the
business of the Restricted Group.
For the purposes of this clause 6.6(c) and the definition of
"Permitted Disposal", "percentage value" of an asset disposed
of means the percentage of the total assets, revenues or
EBITDA of the Restricted Group (as the case may be)
attributable to such asset in respect of the financial year
(in the case of revenues or EBITDA) or as at the end of the
financial year (in the case of total assets) immediately
preceding the financial year in which the asset is disposed of
and for the avoidance of doubt the value of assets disposed of
will be calculated on an increasing percentage basis such that
any percentage value will automatically be added to the
percentage value of any subsequent disposal. For the purpose
of this clause 6.6(c) all calculations shall be by reference
to the annual consolidated financial statements of UPCF or, as
the case may be, the annual combined financial statements of
the Restricted Group required to be produced pursuant to this
Agreement.
(d) The Borrowers undertake (unless otherwise agreed in writing by the Agent
acting on the instructions of the Majority Banks) to apply or procure the
application of 50 per cent. of Excess Cash Flow (if any) in respect of each
financial year of the Restricted Group commencing with the financial year
ending on 31st December, 2003 in prepayment of the Loan provided that (i)
no such prepayment shall be required to be made if the then applicable
ratio for the purpose of clause 12.1(b) is 3.5:1 (or less) and (ii) no such
prepayment shall be required if the amount of Excess Cash Flow in respect
of the relevant financial year is less than Euro 5,000,000.
(e) Each amount to be prepaid under paragraphs (b), (c) and (d) above shall be
deposited immediately with the Agent or as the Agent may reasonably direct
in an account (or accounts) bearing interest at rates customarily offered
by the Agent in such circumstances on terms that the principal amount so
deposited may only be released by making the relevant prepayment on
Interest Payment Dates falling immediately thereafter in accordance with
clause 6.6(f) until the prepayment obligations under paragraphs (b), (c)
and (d) above have been satisfied.
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(f) Each amount to be prepaid under paragraphs (b), (c) and (d) above shall be
applied against the Facility A Outstandings and the Facility B Outstandings
in a proportion of 3:1. If it is not possible to apply the amount prepaid
in such proportion because there are insufficient Facility A Outstandings,
or, as the case may be, Facility B Outstandings, any amount that cannot be
applied against the Facility A Outstandings shall be applied against the
Facility B Outstandings and vice versa. The Facility A Total Commitments
and each Euro Amount in respect of each subsequent Reduction Date specified
in clause 6.2 shall be reduced by the amount prepaid under paragraphs (b),
(c) or (d) above in respect of the Facility A Outstandings. The Facility B
Total Commitments and each Euro Amount in respect of each subsequent
Reduction Date specified in clause 6.3 shall be reduced by the amount
prepaid under paragraphs (b), (c) or (d) above in respect of the Facility B
Outstandings.
(g) Subject to clause 6.6(f), if on any Interest Payment Date following the
making of a deposit pursuant to clause 6.6(e):
(A) the deposit is less than the amount of the Drawings
under the relevant Facility whose Interest Periods
end on such date, the relevant Borrower may select
against which Drawing or Drawings under such Facility
the prepayment is to be made and the proportion of
the relevant amount to be prepaid on each such
Drawings but shall ensure that the full amount
required to be applied is so applied in prepayment;
or
(B) the deposit is equal to or greater than the amount of
the Drawings under the relevant Facility whose
Interest Periods end on such date, the Borrowers
shall prepay, or procure the prepayment of, each such
Drawing on such date.
(h) If the proceeds of disposals of assets comprising or contributing in
aggregate a percentage value of less than 10 per cent. of the total assets,
revenues or EBITDA of the Restricted Group are either (i) reinvested in the
business of the Restricted Group within 12 months of receipt or (ii)
deposited immediately with the Agent and applied in prepayment of the
Facility A Outstandings and the Facility B Outstandings and reduction of
the Facility A Total Commitments and the Euro Amount in respect of each
subsequent Reduction Date specified in clause 6.2 and reduction of the
Facility B Total Commitments and the Euro Amount in respect of each
subsequent Reduction Date specified in clause 6.3 in accordance with the
mechanics set out in clause 6.6(e) and (f), the percentage value of such
assets shall not be taken into account for the purposes of clause 6.6(c) or
paragraph (x)(A) of the definition of Permitted Disposal.
(i) Cancellation
For the avoidance of doubt, and without prejudice to any other
provision of this Agreement, on the date upon which any
mandatory prepayment under clause 6.6(a) is required to be
made the Facility A Total Commitments shall be automatically
reduced to zero.
6.7 Application and amounts payable on prepayment
Any prepayment under this Agreement shall be made in the currency in
which the relevant Drawing is then denominated together with: (a)
accrued interest to the date of prepayment; (b) any additional amount
payable under clause 5.9, 8.5 or 15.2; and (c) all other sums payable
by the relevant Borrower to the relevant Bank under this Agreement
including, without limitation, any accrued commitment commission
payable under clause 7.1(c) on any undrawn amount that is cancelled at
the same time as such prepayment and any amounts payable under clause
14.1.
6.8 Notice of prepayment
No prepayment may be effected under this clause 6 (other than following
written request from the Agent under clause 6.6(a)) unless the relevant
Borrower shall have given the Agent at least three Banking Days' notice
of its intention to make such prepayment. Every notice of prepayment
shall be effective only on actual receipt by the Agent, shall be
irrevocable and shall oblige the relevant Borrower to make such
prepayment on the date specified. No amount prepaid pursuant to clause
6.6 or at any time in respect of Facility B may be reborrowed. The
Borrowers may not prepay the Loan or any part thereof save as expressly
provided in this Agreement.
6.9 Cancellation of Commitments
The Borrowers may at any time by notice to the Agent (effective only on
actual receipt) cancel with effect from a date not less than three
Banking Days after the receipt by the Agent of such notice the whole or
any part (being Euro 10,000,000 or any larger sum which is an integral
multiple Euro 5,000,000) of the Facility A Total Commitments which is
not then outstanding or requested in a Drawdown Notice in respect of
which a Drawing has not been made. Any such notice of cancellation,
once given, shall be irrevocable and upon such cancellation taking
effect the Facility A Commitment of each Bank shall be reduced
proportionately. The Facility A Total Commitments shall be
automatically reduced by the amount cancelled and each Euro Amount in
respect of each subsequent Reduction Date specified in clause 6.2 shall
be reduced by the amount so cancelled.
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Fees and expenses
7.1 Fees
UPCF shall pay to the Agent whether or not any part of the Commitments
is ever drawn:
(a) on the earlier of (i) the date of the first Drawing and (ii)
the date falling ten Banking Days after the date of this
Agreement, for the account of the Joint Arrangers, an
arrangement fee of an amount agreed between the Borrowers and
the Joint Arrangers in a letter dated the date hereof;
(b) on the earlier of (i) the date of the first Drawing and (ii)
the date falling ten Banking Days after the date of this
Agreement, and on each anniversary of the date of this
Agreement until all moneys owing under this Agreement have
been paid in full, for the account of the Agent, an agency fee
of an amount agreed between the Borrowers and the Agent in a
letter dated the date hereof; and
(c) for the account of each Bank, a commitment commission in
respect of that Bank's Facility A Commitment on a daily basis
in arrears on each Quarter Day after the date of this
Agreement and on the Final Repayment Date at the rate of 0.50
per cent. per annum on the daily undrawn and uncancelled
amount of such Bank's Facility A Commitment.
7.2 Expenses
UPCF shall pay to the Agent on demand:
(a) all reasonable expenses (including reasonable legal, printing and
out-of-pocket expenses) incurred by the Agent, the Security Agent, and the
Joint Arrangers in connection with the negotiation, preparation and
execution of this Agreement and the Security Documents, the syndication of
the Facilities and the preparation and distribution of the Information
Memorandum and of any amendment or extension of, or the granting of any
waiver or consent under, this Agreement or the Security Documents together
with interest at the rate referred to in clause 5.6 from the date of demand
for payment of such expenses to the date of payment (as well after as
before judgment); and
(b) all expenses (including legal and out-of-pocket expenses) incurred by the
Secured Parties or any of them in contemplation of, or otherwise in
connection with, the enforcement or bona fide attempted enforcement of, or
preservation or bona fide attempted preservation of any rights under, this
Agreement and/or the Security Documents, including, without limitation,
after the occurrence of an Event of Default or if otherwise agreed with
UPCF, the fees and expenses of accountants or other experts incurred in
relation to any investigation into the affairs of UPCF or any member of the
Restricted Group, or otherwise in respect of the moneys owing under this
Agreement and/or the Security Documents, together with interest at the rate
referred to in clause 5.6 from the date on which such expenses were
incurred to the date of payment (as well after as before judgment).
7.3 Value Added Tax
All fees and expenses payable pursuant to this clause 7 shall be paid
together with an amount equal to any value added tax payable by the
relevant Secured Party in respect of such fees and expenses.
7.4 Stamp and other duties
UPCF shall pay all stamp, documentary, registration or other similar
duties or Taxes (including any such duties or Taxes payable by, or
assessed on, any Secured Party) imposed on or in connection with this
Agreement and/or the Security Documents or the Facilities (other than
those imposed by reason of any assignment or novation by any Bank).
7.5 Indemnity
UPCF shall indemnify the relevant Secured Party against any liability
arising by reason of any delay or omission by UPCF to pay such duties
or Taxes under clause 7.4.
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Payments and Taxes; accounts and calculations
8.1 No set-off or counterclaim; distribution to the Banks
All payments to be made by the Obligors under this Agreement and/or the
Security Documents shall be made in full, without any set-off or
counterclaim whatsoever and, subject as provided in clause 8.5, free
and clear of any deductions or withholdings, in euros or the relevant
Optional Currency (except for costs, charges or expenses which shall be
payable in the currency in which they are incurred) on the due date to
the account of the Agent at such bank as the Agent may from time to
time specify for this purpose. Save where the Security Deed otherwise
provides or where this Agreement and/or the Security Documents provide
for a payment to be made for the account of a particular Bank
(including, without limitation, clauses 6.5, 7, 8.5, 14.1, 14.2, 15.1
and 15.2), in which case the Agent shall distribute the relevant
payment to the Bank concerned, or for the account of the Agent (for its
own account), the Joint Arrangers or the Security Agent payments to be
made by any Obligor under this Agreement and/or the Security Documents
shall be for the account of all the Banks and the Agent shall forthwith
distribute such payments in like funds as are received by the Agent to
the Banks rateably in accordance with their Commitments or
Contributions, as the case may be.
8.2 Payments by the Banks
All sums to be advanced by the Banks to the Borrowers under this
Agreement shall be remitted in euros or the relevant Optional Currency
on the relevant Drawdown Date to the account of the Agent at such bank
as the Agent may have notified to the Banks and shall be paid by the
Agent on such date in like funds as are received by the Agent to the
account of the relevant Borrower specified in the relevant Drawdown
Notice.
8.3 Non-Banking Days
When any payment under this Agreement would otherwise be due or any
reduction in the Total Commitments pursuant to clause 6 would otherwise
be effected on a day which is not a Banking Day, the due date for
payment or the date of such reduction shall be postponed to the next
following Banking Day unless such Banking Day falls in the next
calendar month in which case payment shall be made on the immediately
preceding Banking Day. If any date or day specifically referred to in
this Agreement is not a Banking Day all references thereto shall be
deemed to be to the immediately preceding Banking Day.
8.4 Agent may assume receipt
Where any sum is to be paid under this Agreement to the Agent for the
account of another person, the Agent may assume that the payment will
be made when due and may (but shall not be obliged to) make such sum
available to the person so entitled. If it proves to be the case that
such payment was not made to the Agent, then the person to whom such
sum was so made available shall on request refund such sum to the Agent
together with interest thereon sufficient to compensate the Agent for
the cost of making available such sum up to the date of such repayment
and the person by whom such sum was payable shall indemnify the Agent
for any and all loss or reasonable expense which the Agent may sustain
or incur as a consequence of such sum not having been paid on its due
date.
8.5 Grossing-up for Taxes
Subject to clause 8.6, at any time any Obligor is required to make any
deduction or withholding in respect of Taxes from any payment due under
this Agreement and/or the Security Documents for the account of any
Secured Party (or if the Agent or the Security Agent is required to
make any such deduction or withholding from a payment to any other
Secured Party), the sum due from the relevant Obligor in respect of
such payment shall, subject to the relevant Secured Party's compliance
with clause 8.8(b), be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, each Secured
Party receives on the due date for such payment (and retains, free from
any liability in respect of such deduction or withholding) a net sum
equal to the sum which it would have received had no such deduction or
withholding been required to be made and the relevant Obligor shall
indemnify each Secured Party against any losses or costs incurred by
any of them by reason of any failure of such Obligor to make any such
deduction or withholding or by reason of any increased payment not
being made on the due date for such payment. The relevant Obligor shall
promptly deliver to the Agent any receipts, certificates or other proof
evidencing the amounts (if any) paid or payable in respect of any such
deduction or withholding.
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8.6 Qualifying Banks
If any Secured Party is not or ceases to be a Qualifying Bank then it
shall promptly notify the relevant Obligor upon becoming aware of the
same and the relevant Obligor shall not be obliged to pay such Secured
Party under clause 8.5 any amount in excess of the amount it would have
been obliged to pay if such Secured Party was or had not ceased to be a
Qualifying Bank provided that this clause 8.6 shall not apply (and the
relevant Obligor shall be obliged to comply with its obligations under
clause 8.5) if after today's date there shall have been any change in,
or in the interpretation or application of, any relevant law,
directive, treaty (including, without limitation, any applicable double
tax treaty) or regulation or practice of any applicable taxation
authority and as a result thereof the relevant Secured Party ceases to
be a Qualifying Bank or the relevant Obligor will be required to make
deduction or withholding on account of tax irrespective of whether the
recipient of the relevant payment is or is not a Qualifying Bank. Each
Secured Party confirms to each of the Obligors that it is, as at the
date of this Agreement, a Qualifying Bank.
8.7 Claw-back of Tax benefit
If following any such deduction or withholding as is referred to in
clause 8.5 any Secured Party shall receive or be granted a credit
against or remission for any Taxes payable by it, the relevant Secured
Party shall, subject to the relevant Obligor having made any increased
payment in accordance with clause 8.5 and to the extent that the
relevant Secured Party can do so without prejudicing the retention of
the amount of such credit or remission and without prejudice to the
right of the relevant Secured Party to obtain any other relief or
allowance which may be available to it, reimburse the relevant Obligor
with such amount as the relevant Secured Party shall in its absolute
discretion certify to be the proportion of such credit or remission as
will leave the relevant Secured Party (after such reimbursement) in no
worse position than it would have been in had there been no such
deduction or withholding from the payment by the relevant Obligor as
aforesaid. Such reimbursement shall be made forthwith upon the relevant
Security Party certifying that the amount of such credit or remission
has been received by it. Nothing contained in this Agreement shall
oblige any Secured Party to rearrange its tax affairs or to disclose
any information regarding its tax affairs and computations. Without
prejudice to the generality of the foregoing, the Obligors shall not,
by virtue of this clause 8.7, be entitled to enquire about any Secured
Party's tax affairs.
8.8 Certification to secure a Tax benefit
If, in order to make any payment due under this Agreement and/or any
Security Document to any Secured Party without deduction or withholding
for or on account of Tax or to secure the benefit of any reduced rate
of such deduction or withholding, any Obligor requires a direction from
or the consent of a government or taxing authority:
(a) the relevant Obligor agrees to use its reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to such Secured Party),
execute, arrange for any required certification of, and deliver to such
Secured Party or such government or taxing authority as such Secured Party
reasonably directs, any form or document reasonably required of it, and to
provide such information that such Secured Party or such government or
taxing authority may reasonably require or request in order to assist or
enable such Secured Party to secure that such a direction or consent is
given to the relevant Obligor in respect of any payment. Each Obligor shall
perform its obligations under this sub-paragraph (a) as soon as reasonably
practicable following the earlier of:
(i) being notified that the form, document or information is required or
reasonably requested; and
(ii) reasonable demand being made by such Secured Party or the demand by
the relevant government or taxing authority, as the case may be;
(b) each Secured Party agrees to use its reasonable endeavours to complete
(accurately and in a manner reasonably satisfactory to the relevant
Obligor), execute, arrange for any required certification of, and deliver
to the relevant Obligor, or such government or taxing authority as the
relevant Obligor may reasonably direct, any form or document reasonably
required of it, and to provide such information that the relevant Obligor
or such government or taxing authority may reasonably require or request in
order to assist or enable the relevant Obligor to secure that such a
direction or consent is given to the relevant Obligor in respect of any
payment. The obligations of the Secured Parties under this sub-paragraph
(b) shall be performed within 30 days of reasonable demand by the relevant
Obligor.
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8.9 Bank accounts
Each Bank shall maintain, in accordance with its usual practices, an
account or accounts evidencing the amounts from time to time lent by,
owing to and paid to it under this Agreement. The Agent shall maintain
a control account showing each Drawing and other sums owing by each
Borrower under this Agreement and all payments in respect thereof made
by the Obligors from time to time. The control accounts shall be prima
facie evidence of the amount from time to time owing by the Borrowers
under this Agreement.
8.10 Partial payments
If, on any date on which a payment is due to be made by any Obligor
under this Agreement and/or the Security Documents, the amount received
by the Agent from the relevant Obligor falls short of the total amount
of the payment due to be made by the relevant Obligor on such date
then, without prejudice to any rights or remedies available to the
Secured Parties under this Agreement and/or the Security Documents, the
Agent shall apply the amount actually received from the relevant
Obligor in or towards discharge of the obligations of the Borrowers
under this Agreement in the following order, notwithstanding any
appropriation made, or purported to be made, by the relevant Obligor:
(a) firstly, in or towards payment, on a pro rata basis, of any
unpaid fees, costs and expenses of the Agent under this
Agreement and/or the Security Documents;
(b) secondly, in or towards payment to the Joint Arrangers of any
portion of the arrangement fee payable under clause 7.1(a)
which remains unpaid, to the Agent of any portion of the
agency fee payable under clause 7.1(b) which remains unpaid;
(c) thirdly, in or towards payment to the Banks, on a pro rata
basis, of any accrued commitment commission payable under
clause 7.1(c) which shall have become due but remains unpaid;
(d) fourthly, in or towards payment to the Banks, on a pro rata
basis, of any accrued interest which shall have become due but
remains unpaid;
(e) fifthly, in or towards payment to the Banks, on a pro rata
basis, of any principal which shall have become due but
remains unpaid; and
(f) sixthly, in or towards payment of any other sum which shall
have become due but remains unpaid (and, if more than one such
sum so remains unpaid, on a pro rata basis).
The order of application set out in this clause 8.10(b)-8.10(f) shall
be varied by the Agent if all Banks so direct, without any reference
to, or consent or approval from, any of the Obligors.
8.11 Calculations
All interest and other payments of an annual nature under this
Agreement shall accrue from day to day and be calculated on the basis
of actual days elapsed and (in the case of euros) a 360 day year or (in
the case of an Optional Currency) in accordance with standard London
interbank market practice in respect of calculating the numbers of days
comprising a year. In calculating the actual number of days elapsed in
a period which is one of a series of consecutive periods with no
interval between them or a period on the last day of which any payment
falls to be made in respect of such period, the first day of such
period shall be included but the last day excluded.
8.12 Certificates conclusive
Any certificate or determination of the Agent or any Secured Party as
to any rate of interest or any amount payable under this Agreement
shall, in the absence of manifest error, be conclusive and binding on
the Obligors and (in the case of a certificate or determination by the
Agent) on the Secured Parties.
8.13 Reconventioning
After consultation between the Agent, UPCF and the Banks and
notwithstanding clause 18.11 the Agent (acting reasonably) shall be
entitled to make such amendments to the provisions of this Agreement as
it may determine to be necessary to conform them to market practices
(whether as to the settlement or rounding of obligations, the
calculation of interest or otherwise howsoever) then applicable to
instruments denominated in euro.
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Any amendment so made to this Agreement by the Agent shall be promptly
notified to the Banks and the Obligors by the Agent and shall be
binding on all the Banks and the Obligors.
8.14 Effect of monetary union
If the country of any national currency in which any amount is
expressed to be payable under this Agreement participates in Economic
and Monetary Union in accordance with Article 109j of the Treaty, then:
(a) any amount expressed to be payable under this Agreement in
that national currency shall be made in that national currency
or in euro as the Agent may, by not less than five Banking
Days' notice to the Obligors and the Banks to that effect,
require;
(b) any amount so required to be paid in euro shall be converted
from that national currency at the rate stipulated pursuant to
Article 109l(4) of the Treaty and payment of the amount in
euro derived from such conversion shall discharge the
obligation of the relevant party to pay such national currency
amount in accordance with, and subject to, the Regulation(s)
made pursuant to Article 109l(4).
Guarantee
9.1 Limits of Guarantee
Notwithstanding the provisions of clause 9.2 to 9.17 inclusive, the
following limitations shall apply to the relevant Guarantors:
(a) Belgium
The liability of Radio Public under the Guarantee shall be
limited to the amount that has been on-lent to Radio Public
from time to time from Drawings made to the Borrowers,
together with the amount of any Drawings which have been
applied by the relevant Borrower in satisfaction of
obligations of Radio Public.
(b) Netherlands
Notwithstanding any provision to the contrary under this
clause 9, the total amount that can be recovered from the
Guarantors incorporated in The Netherlands under this
Guarantee shall not at any time exceed 85% of the net asset
value (Netto Vermogens Waarde) of the relevant Guarantor from
time to time as reflected in the latest audited approved
financial statements proceeding the date of payment by the
Guarantor under this Guarantee provided that determining net
asset value for these purposes any loans or balances due from
the Guarantor to any member of the Restricted Group, shall be
treated as if such amounts have been subscribed by way of
equity share capital in the Guarantor and should not be
treated as reducing the gross assets. For the purpose of this
clause 9.1(b), all terms used herein shall have the meaning
usually given to them in accordance with Dutch accounting laws
and rules consistently applied.
9.2 Covenant to pay
In consideration of the Banks making or continuing to make available
Drawings to the Borrowers pursuant to this Agreement and the High Yield
Hedging Banks entering into the High Yield Hedging Arrangements, the
Guarantors hereby irrevocably and unconditionally but subject always to
the provisions of clause 9.1:
(a) jointly and severally guarantee in favour of the Security
Agent on behalf of each Secured Party on demand (which demand
may only be given following the making of demand on the
relevant Borrower) the due performance by the Borrowers or UPC
of all of their respective obligations under or pursuant to
the Finance Documents; and
(b) jointly and severally guarantee in favour of the Security
Agent on behalf of each Secured Party on demand (which demand
may only be given following the making of demand on the
relevant Borrower) the payment of all moneys now or hereafter
due, owing or incurred by the Borrowers or UPC under or
pursuant to the Finance Documents when the same become due
whether by acceleration or otherwise.
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9.3 Guarantors as principal debtors; indemnity
As a separate and independent stipulation, but subject always to the
provisions of clause 9.1, the Guarantors jointly and severally agree
that if any purported obligation or liability of any member of the
Restricted Group or UPC which would have been the subject of this
Guarantee had it been valid and enforceable is not or ceases to be
valid or enforceable against such member of the Restricted Group or UPC
on any ground whatsoever whether or not known to the Secured Parties,
or any of them, (including, without limitation, any irregular exercise
or absence of any corporate power or lack of authority of, or breach of
duty by, any person purporting to act on behalf of such member of the
Restricted Group or UPC or any legal or other limitation, or any
disability or Incapacity or any change in the constitution of any
relevant member of the Restricted Group or UPC) the Guarantors shall
nevertheless be jointly and severally liable in respect of that
purported obligation or liability as if the same were fully valid and
enforceable and such Guarantor was the principal debtor in respect
thereof. The Guarantors hereby irrevocably and unconditionally jointly
and severally agree to indemnify and keep indemnified the Secured
Parties against any loss or liability arising from any failure of any
member of the Restricted Group or UPC to perform or discharge any such
purported obligation or liability or from any invalidity or
unenforceability of any of the same against any member of the
Restricted Group or UPC (subject to the provisions of clause 9.1).
9.4 No security taken by Guarantors
The Guarantors hereby jointly and severally warrant that they have not
taken or received, and undertake that until all the Guaranteed
Liabilities have been paid or discharged in full, they will not take or
receive, the benefit of any security from any other Obligor, UPC or any
other person in respect of their obligations under this Guarantee save
as may be agreed by the Majority Banks.
9.5 Interest
Each Guarantor agrees to pay interest on each amount demanded of it
under this Guarantee from the date of such demand until payment (as
well after as before judgment) at the rate specified in clause 5.6.
Such interest shall be compounded at the end of each period determined
for this purpose by the Agent in the event of it not being paid when
demanded but without prejudice to the Security Agent's right to require
payment of such interest.
9.6 Continuing security and other matters
This Guarantee shall:
(a) extend to the ultimate balance from time to time owing to the
Secured Parties by the members of the Restricted Group and UPC
and shall be a continuing guarantee, notwithstanding any
settlement of account or other matter whatsoever;
(b) be in addition to any present or future Collateral Instrument,
right or remedy held by or available to the Secured Parties or
any of them; and
(c) not be in any way prejudiced or affected by the existence of
any such Collateral Instrument, rights or remedies or by the
same becoming wholly or in part void, voidable or
unenforceable on any ground whatsoever or by the Secured
Parties or any of them dealing with, exchanging, varying or
failing to perfect or enforce any of the same or giving time
for payment or indulgence or compounding with any other person
liable.
9.7 New accounts
If this Guarantee ceases to be continuing for any reason whatsoever
each Secured Party may nevertheless continue any account of any member
of the Restricted Group or UPC or open one or more new accounts and the
liability of each Guarantor under this Guarantee shall not in any
manner be reduced or affected by any subsequent transactions or
receipts or payments into or out of any such account.
9.8 Liability unconditional
The liability of each Guarantor shall not be affected nor shall this
Guarantee be discharged or reduced by reason of:
(a) the Incapacity or any change in the name, style or constitution of any
Obligor or UPC or any other person liable; or
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(b) any of the Secured Parties granting any time, indulgence or concession
to, or compounding with, discharging, releasing or varying the
liability of any other Obligor or UPC or any other person liable or
renewing, determining, varying or increasing any accommodation,
Facilities or transaction or otherwise dealing with the same in any
manner whatsoever or concurring in, accepting or varying any
compromise, arrangement or settlement or omitting to claim or enforce
payment from any Obligor or UPC or any other person liable; or
(c) any act or omission which would not have discharged or affected the
liability of such Guarantor had it been a principal debtor instead of
a guarantor or by anything done or omitted which but for this
provision might operate to exonerate such Guarantor.
9.9 Collateral Instruments
None of the Secured Parties shall be obliged to make any claim or
demand on the Borrowers or UPC or to resort to any Collateral
Instrument or other means of payment now or hereafter held by or
available to them or it before enforcing this Guarantee and no action
taken or omitted by any of the Secured Parties in connection with any
such Collateral Instrument or other means of payment shall discharge,
reduce, prejudice or affect the liability of any Guarantor under this
Guarantee nor shall any of the Secured Parties be obliged to apply any
money or other property received or recovered in consequence of any
enforcement or realisation of any such Collateral Instrument or other
means of payment in reduction of the Guaranteed Liabilities.
9.10 Waiver of Guarantors' rights
Until all the Guaranteed Liabilities have been paid, discharged or
satisfied in full (and notwithstanding payment of a dividend in any
liquidation or under any compromise or arrangement) each Guarantor
agrees that, without the prior written consent of the Agent, it will
not:
(a) exercise its rights of subrogation, reimbursement and indemnity
against any other Obligor or UPC or any other person liable; or
(b) demand or accept any security to be executed in respect of any of its
obligations under this Guarantee or any other Indebtedness now or
hereafter due to such Guarantor from any other member of the
Restricted Group or UPC or from any other person liable; or
(c) take any step or enforce any right against any Obligor or UPC or any
other person liable in respect of any Guaranteed Liabilities; or
(d) exercise any right of set-off or counterclaim against any other
Obligor or UPC or any other person liable or claim or prove or vote as
a creditor in competition with any of the Secured Parties in the
bankruptcy, liquidation, administration or other insolvency proceeding
of any other Obligor or UPC or any other person liable or have the
benefit of, or share in, any payment from or composition with, any
other Obligor or UPC or any other person liable or any other
Collateral Instrument now or hereafter held by any of the Secured
Parties of the Guaranteed Liabilities or for the obligations or
liabilities of any other person liable but so that, if so directed by
the Agent, it will prove for the whole or any part of its claim in the
liquidation of any other Obligor or UPC, as the case may be, on terms
that the benefit of such proof and of all money received by it in
respect thereof shall immediately be transferred to an account to be
designated by the Security Agent for the Secured Parties and applied
in or towards discharge of the Guaranteed Liabilities in accordance
with the Security Deed.
9.11 Suspense accounts
Any money received in connection with this Guarantee (whether before or
after any Incapacity of any Obligor or UPC) may be placed to the credit
of a suspense account with a view to preserving the rights of the
Secured Parties to prove for the whole of their respective claims
against any Obligor or UPC or any other person liable or may be applied
in or towards satisfaction of the Guaranteed Liabilities in accordance
with the Security Deed, save that if the amounts standing to the credit
of the suspense account are at least equal to the Guaranteed
Liabilities such amounts must be promptly applied in or towards
satisfaction of the Guaranteed Liabilities in accordance with the
Security Deed.
9.12 Settlements conditional
Any release, discharge or settlement between any Guarantor and any of
the Secured Parties shall be conditional upon no security, disposition
or payment to any of the Secured Parties by any Obligor or UPC or any
other person liable being void, set aside or ordered to be refunded
pursuant to any enactment or law relating to bankruptcy, liquidation,
administration or insolvency or for any other reason whatsoever and if
such condition shall not be fulfilled the Secured Parties shall be
entitled to enforce this Guarantee subsequently as if such release,
discharge or settlement had not occurred and any such payment had not
been made.
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9.13 Guarantors to deliver up certain property
If, contrary to clauses 9.4 or 9.10, any Guarantor takes or receives
the benefit of any security or receives or recovers any money or other
property, such security, money or other property shall be held on trust
for the Secured Parties and shall be delivered to the Security Agent on
demand.
9.14 Retention of this guarantee
The Secured Parties shall be entitled to retain this Guarantee until
the irrevocable and unconditional payment or discharge of all the
Guaranteed Liabilities and the reduction of the Total Commitments to
zero in accordance with this Agreement.
9.15 Changes in constitution or reorganisations of Secured Parties
For the avoidance of doubt and without prejudice to the provisions of
clause 18, this Guarantee shall remain binding on each Guarantor
notwithstanding any change in the constitution of the Secured Parties
or any of them or their or its absorption in, or amalgamation with or
the acquisition of all or part of their or its undertaking or assets
by, any other person, or any reconstruction or reorganisation of any
kind, to the intent that this Guarantee shall remain valid and
effective in all respects in favour of the Security Agent, and any
successor or additional Security Agent appointed pursuant to the
Security Deed for the benefit of each Secured Party in the same manner
as if such successor or additional Security Agent had been named in
this guarantee as a party instead of, or in addition to the Security
Agent.
9.16 Other Guarantors
Each Guarantor agrees to be bound by this Guarantee notwithstanding
that any other person intended to execute or to be bound by any other
guarantee or assurance under or pursuant to this Agreement may not do
so or may not be effectually bound and notwithstanding that such other
guarantee or assurance may be determined or be or become invalid or
unenforceable against any other person, whether or not the deficiency
is known to the Secured Parties or any of them.
9.17 Acceding Guarantors
(a) Unless UPCF would still be in compliance with clause 11.1(w) without
such entity becoming an Acceding Guarantor, UPCF shall procure that
each entity which becomes a direct or indirect Subsidiary of UPCF
after the date of this Agreement (whether or not it is a wholly owned
Subsidiary of UPCF), which is not an Unrestricted Subsidiary or
pursuant to the Restructuring, becomes an Acceding Guarantor, within
60 days of it becoming a Subsidiary of UPCF by delivering to the Agent
a Guarantor's Deed of Accession duly executed by such Subsidiary and
UPCF. If it would be unlawful for any such entity to become an
Acceding Guarantor it shall not be required to become an Acceding
Guarantor provided that UPCF procures that other members of the
Restricted Group become Acceding Guarantors in accordance with the
terms of this clause 9.17 within 60 days of UPCF becoming aware of
such unlawfulness so as to ensure compliance with clause 11.1(w).
(b) On or prior to the date of any transfer, sale or disposal by an
Obligor to a member of the Restricted Group which is not an Obligor,
UPCF shall deliver to the Agent a Guarantor's Deed of Accession duly
executed by such member of the Restricted Group and UPCF.
(c) UPCF shall procure that, at the same time as a Guarantor's Deed of
Accession is delivered to the Agent, there is delivered to the Agent
all the documents and evidence listed in schedule 9, part B in respect
of the relevant Subsidiary or member of the Restricted Group, as the
case may be, in each case in form and substance satisfactory to the
Agent acting reasonably provided that a Share Security, as referred to
in paragraph (b) of part B of schedule 9 and the relevant supporting
documentation shall not be required to be delivered to the Agent where
the relevant Subsidiary or member of the Restricted Group is becoming
a member of the Restricted Group other than to ensure compliance with
clause 11.1(w).
(d) Delivery of a Guarantor's Deed of Accession duly executed by an
Acceding Guarantor and UPCF constitutes confirmation by the relevant
Acceding Guarantor (with respect to itself only) that the
representations and warranties set out in clauses 10.1 and 10.2 to be
made by it on the date of the Guarantor's Deed of Accession in
accordance with clause 10.4 are correct as if made by it with
reference to the facts and circumstances then existing.
(e) Each Acceding Guarantor, before entering into such a Guarantor's Deed
of Accession, shall comply with all relevant legislation in its
country of incorporation, to the satisfaction of the Agent, to ensure
that the proposed guarantee to be given is in compliance with any
relevant provisions of such legislation and to ensure that the
proposed guarantee to be given is to be legal valid and binding on the
proposed Acceding Guarantor.
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(f) Each Secured Party irrevocably authorises the Security Agent to
countersign each Guarantor's Deed of Accession on its behalf without
any further consent of, or consultation with, any of the other Secured
Parties.
(g) Each of the other Obligors irrevocably authorises UPCF to countersign
each Guarantor's Deed of Accession on its behalf without any further
consent of or consultation with, any of the other Obligors.
Representations and warranties
10.1 Repeated representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group represents and warrants to each of
the Secured Parties that:
(a) Due incorporation
all of the members of the Restricted Group which are not
Immaterial Subsidiaries are duly incorporated and validly
existing under the laws of the respective countries of their
incorporation and have power to carry on their respective
businesses as they are now being conducted and to own their
respective property and other assets;
(b) Power to borrow etc.
each Obligor has power to execute, deliver and perform its
obligations under this Agreement and the Security Documents to
which it is a party and, in the case of the Borrowers, to
borrow the Commitments; all necessary corporate, shareholder
and other action has been taken to authorise the execution,
delivery and performance of the same and no limitation on the
powers of the Borrowers to borrow or on the powers of any
Guarantor to give guarantees will be exceeded as a result of
borrowings under this Agreement, the issue of Telekabel Notes
or as a result of the giving of the Guarantee (in the case of
any Guarantor as limited, where appropriate, by clause 9.1);
(c) Binding obligations
this Agreement constitutes and any Telekabel Notes issued by
it and the Security Documents to which it is a party, when
executed and delivered by the relevant Obligor will
constitute, valid and legally binding obligations of such
Obligor enforceable in accordance with their respective terms
subject to the qualifications contained in the legal opinions
referred to in schedule 3 and mandatory provisions of law
affecting creditors rights generally;
(d) No conflict with other obligations
the execution and delivery of, the performance of its
obligations under, and compliance with the provisions of, this
Agreement, any Telekabel Notes and the Security Documents to
which it is a party by the Obligors will not (i) contravene in
any material respect any existing material applicable law,
statute, rule or regulation or any judgment, decree or permit
to which any Obligor is subject, (ii) conflict with, or result
in any material breach of any of the terms of, or constitute a
default under, any material agreement or other instrument to
which any Obligor is a party or is subject or by which it or
any of its property is bound, (iii) contravene or conflict
with any provision of any Obligor's constitutive documents or
(iv) save for the Encumbrances granted to the Secured Parties
pursuant to the Security Documents, result in the creation or
imposition of or oblige any member of the Restricted Group
which is not an Immaterial Subsidiary to create any
Encumbrance (other than a Permitted Encumbrance) on any member
of the Restricted Group's undertakings, assets, rights or
revenues;
(e) No litigation
save as set out in the Disclosure Letter, no litigation,
arbitration or administrative proceeding is taking place,
pending or, to the knowledge of the officers of any Obligor,
threatened against any member of the Restricted Group which is
not an Immaterial Subsidiary in which there is a reasonable
likelihood of an adverse determination, and which if adversely
determined against such member of the Restricted Group which
is not an Immaterial Subsidiary would or is reasonably likely
to have a Material Adverse Effect;
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(f) Financial statements correct and complete:
(i) the audited consolidated financial statements of the UPC Group in
respect of the financial year ended on 31 December 1998 and the
financial statements of the relevant members of the Restricted Group
which have been used in the preparation of the pro forma unaudited
combined financial statements of the Restricted Group in respect of
the financial year ended on 31st December 1998, which consolidated
financial statements of the UPC Group and combined financial
statements of the Restricted Group have each been delivered to the
Agent, have been prepared in accordance with GAAP (except that the
combined financial statements for the Restricted Group do not include
all consolidated Subsidiaries to the extent that there are any
Unrestricted Subsidiaries) which principles have been consistently
applied and, in conjunction with the footnotes thereto, present fairly
in all material respects in accordance with GAAP the consolidated
financial position of the UPC Group and the combined financial
position of the Restricted Group respectively as at such date and the
consolidated results of the operations of the UPC Group and the
combined results of the operations of the Restricted Group
respectively for the financial year ended on such date; and
(ii) the unaudited Quarterly Management Accounts for the UPC Group and the
Restricted Group respectively in respect of the Quarterly Period ended
31st March 1999 as delivered to the Agent have been prepared in
accordance with GAAP (other than year end adjustments and absence of
footnotes) which principles have been consistently applied and present
fairly in all material respects in accordance with GAAP the results of
the operations of the UPC Group and the Restricted Group for such
Quarterly Period as at such date.
10.2 Further representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group further represents and warrants to
each of the Secured Parties that:
(a) Choice of law
the choice by the Obligors of English law to govern this
Agreement and any Telekabel Note and the submission by the
Obligors to the non-exclusive jurisdiction of the High Court
of Justice in England are valid and binding;
(b) Intellectual Property Rights:
(i) the Intellectual Property Rights owned by or licensed to each member
of the Restricted Group which is not an Immaterial Subsidiary are free
from material rights or interests in favour of third parties;
(ii) the Intellectual Property Rights owned by or licensed to each member
of the Restricted Group which is not an Immaterial Subsidiary are all
the Intellectual Property Rights required by them in order to carry
on, maintain and operate in all material respects their respective
businesses, properties and assets and no member of the Restricted
Group which is not an Immaterial Subsidiary in carrying on its
business, to its knowledge, infringes any Intellectual Property Rights
of any third party where any action taken by such third party in
respect of any such infringement would or is reasonably likely to have
a Material Adverse Effect; and
(iii)to the knowledge of the Obligor, no Intellectual Property Rights owned
by any member of the Restricted Group which is not an Immaterial
Subsidiary are being infringed, nor is there any threatened
infringement of any such Intellectual Property Rights which, in either
case would or is reasonably likely to have a Material Adverse Effect;
(c) Copyright matters
each member of the Restricted Group which is not an Immaterial
Subsidiary has obtained all consents and taken all other
action required in connection with the secondary transmission
by it of any broadcast television signals (other than where
failure to do so would or is reasonably likely to have a
Material Adverse Effect) and no member of the Restricted Group
which is not an Immaterial Subsidiary has any knowledge, nor
is it aware of any claim, that it is or may be liable to any
person for any copyright infringement of any nature whatsoever
as a result of the operation of its business which liability
would or is reasonably likely to have a Material Adverse
Effect;
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(d) Environmental Matters
after due enquiry, no Environmental Claim is, to the knowledge
of any member of the Restricted Group which is not an
Immaterial Subsidiary, pending, threatened or existing which
has or is reasonably likely to have a Material Adverse Effect;
(e) Year 2000 Issue
there is an ongoing review of the effect of the Year 2000
Issue on the computer software, hardware and firmware systems
and equipment containing embedded microchips owned or operated
by or for each member of the Restricted Group which is not an
Immaterial Subsidiary or used or relied upon in the conduct of
the business of each member of the Restricted Group which is
not an Immaterial Subsidiary (including systems and equipment
supplied by others or with which such computer systems of such
member of the Restricted Group which is not an Immaterial
Subsidiary interface). The costs to the Restricted Group of
any reprogramming required in respect of the systems and
equipment owned or operated by any member of the Restricted
Group which is not an Immaterial Subsidiary as a result of the
Year 2000 Issue to permit the proper functioning of, and the
proper processing of data by such systems and equipment, and
the testing of such reprogramming, and of the reasonably
foreseeable consequences of the Year 2000 Issue to the
Restricted Group (including reprogramming errors and the
failure of systems or equipment supplied by others) are not
expected to result in an Event of Default or to have a
Material Adverse Effect;
(f) Shares
all shares issued by each member of the Restricted Group have
been validly allotted;
(g) Works councils
if any works council has been instituted by an Obligor, all
action has been taken by or in relation to such works council
necessary to authorise the performance by the Obligors of
their respective obligations under this Agreement and the
Security Documents;
(h) No Default
no Default has occurred and is continuing.
10.3 First Drawing representations and warranties
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group further represents and warrants to
each of the Secured Parties as at the date of the first Drawing or, in
the case of clause 10.3(h) only, as at the date of the Information
Memorandum, that:
(a) No filings required
save for the filings, registrations and notarisations obtained
by the relevant Obligor referred to in the legal opinions
referred to in schedule 3 and subject to any reservations
contained in such legal opinions, it is not necessary to
ensure the legality, validity, enforceability or admissibility
in evidence of this Agreement, any Telekabel Note or the
Security Documents that any of them or any other instrument be
notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere in any Relevant Jurisdiction
or that any stamp, registration or similar tax or charge be
paid in any Relevant Jurisdiction on or in relation to this
Agreement, any Telekabel Notes or any of the Security
Documents and this Agreement, the Telekabel Notes and the
Security Documents are in proper form for their enforcement in
the courts of any Relevant Jurisdiction;
(b) Principal Agreements:
(i) the Principal Agreements which have been entered into
on or prior to the date of this Agreement are in full
force and effect; and
(ii) save as set out in the Disclosure Letter, to the best
of its knowledge and belief after due enquiry, (1) no
party is in breach of any material term thereof and
(2) there is no material dispute subsisting between
the parties thereto;
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(c) Compliance with laws
to the best of its knowledge and belief after due enquiry,
each member of the Restricted Group which is not an Immaterial
Subsidiary is in compliance in all material respects with all
material laws (including Telecommunications and Cable Laws)
applicable to it but excluding, for these purposes only,
breaches of Telecommunications and Cable Laws which have been
expressly waived by the relevant regulatory authority;
(d) No material adverse change
there has been no material adverse change in the consolidated
financial position of the Restricted Group from that set forth
in the financial statements referred to in clause 10.1(f)(i)
and (ii) which in the reasonable opinion of the Agent would or
is reasonably likely to have a Material Adverse Effect;
(e) No dividends
save as set out in the Disclosure Letter, since 31st December
1998, no dividends (in cash or specie) of UPCF, Janco, Radio
Public, CNA, Eurosat SRL, Kabel Net Holding AS, Kabel Net Brno
AS or Belmarken or any other rights or benefits have been
declared, made or paid by UPCF, Janco, Radio Public, CNA,
Eurosat SRL, Kabel Net Holding AS, Kabel Net Brno AS or
Belmarken;
(f) Title to assets
save as set out in the Disclosure Letter, each member of the
Restricted Group which is not an Immaterial Subsidiary (i) is
the legal and/or beneficial owner of the percentage
shareholding in each company shown on the structure chart set
out in part A of schedule 13 in relation to which it is shown
as a shareholder and (ii) is the legal and/or beneficial owner
of or has the legal right to use all its material assets;
(g) Consents obtained
every material consent, authorisation, licence or approval of
or registration with or declaration to, governmental or public
bodies or authorities of courts (other than Necessary
Authorisations) required (subject to the reservations outlined
in the legal opinions referred to in schedule 3) by each
member of the Restricted Group which is not an Immaterial
Subsidiary to authorise, or required by any member of the
Restricted Group which is not an Immaterial Subsidiary in
connection with, the execution, delivery, validity,
enforceability or admissibility in evidence in its Relevant
Jurisdiction of this Agreement, any Telekabel Notes and the
Security Documents to which it is a party or the performance
by each member of the Restricted Group which is not an
Immaterial Subsidiary of their respective obligations under
this Agreement, any Telekabel Notes and the Security Documents
to which they are a party has been obtained or made and is in
full force and effect and there has been no material default
in the observance of the conditions or restrictions (if any)
imposed in, or in connection with, any of the same;
(h) Information Memorandum
to the best of the Borrowers' knowledge after due inquiry,
as of the date of the Information Memorandum:
(i) the factual information relating to the Restricted
Group contained in the Information Memorandum is
accurate in all material respects;
(ii) all projections and forecasts contained in the
Information Memorandum were based on and arrived at
after due and careful consideration and have been
prepared by the Borrowers on the basis of assumptions
that the Borrowers believed were reasonable as of the
date of the projections;
(iii) there are no material facts or circumstances which
have not been disclosed to the Banks in writing prior
to the date of the Information Memorandum and which
would make any material factual information referred
to in (i) above untrue, inaccurate or misleading in
any material respect as at the date of the
Information Memorandum, or any such opinions,
projections, or assumptions referred to in (ii) above
misleading in any material respect as at the date of
the Information Memorandum,
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Notwithstanding the above, no representation is made in
respect of (i) any information, facts, statements, opinions,
projections, forecasts, demographic statistics or
circumstances relating to the cable, media, telecommunications
and data services industry as a whole, (ii) the research
reports contained in Book Two of the Information Memorandum
and (iii) any person other than any member of the Restricted
Group. Further the Information Memorandum in respect of the
High Yield Notes contained in Book 2 of the Information
Memorandum was prepared after Book 1 of the Information
Memorandum and as consequence may contain more up to date
information about members of the Restricted Group;
(i) Environmental Matters
each Obligor and other member of the Restricted Group which is
not an Immaterial Subsidiary complies, in all respects, with
all requirements of Environmental Laws where failure to do so
has or is reasonably likely to have a Material Adverse Effect;
(j) No Immunity
no member of the Restricted Group other than Immaterial
Subsidiaries nor any of their respective assets is entitled to
immunity on the grounds of sovereignty from any legal action
or proceedings (which shall include, without limitation, suit,
attachment prior to judgment, execution or other enforcement);
(k) Financial Projections
the combined financial projections for the Restricted Group
for the financial years ending 1999 to 2007 inclusive, the
operating statistics projections for such financial years and
the Management Base Case have been prepared based upon
historical financial information and upon the assumptions set
forth therein, which assumptions were reasonable at such time;
and
(l) Licences
save as set out in the Disclosure Letter, each member of the
Restricted Group which is not an Immaterial Subsidiary has
secured all Licences being those necessary for the Permitted
Business in Belgium, Austria, Norway and Hungary, all such
Licences are in full force and effect and each member of the
Restricted Group which is not an Immaterial Subsidiary is in
compliance in all material respects with all provisions
thereof. To the best of its knowledge and belief after due
enquiry, none of such Licences are the subject of any pending
proceedings or revocation.
10.4 Repetition
The representations and warranties in (i) clause 10.1 (so that (a) the
representation and warranty in clause 10.1 (f)(i) shall for this
purpose refer to the then latest audited consolidated financial
statements of UPCF verified by the auditors to the Restricted Group and
delivered to the Agent under clause 11.1 and to any annual audited
combined financial statements of the Restricted Group required to be
produced under clause 11.1 and (b) the representation and warranty in
clause 10.1 (f)(ii) shall for this purpose refer to the then latest
Quarterly Management Accounts delivered to the Agent under clause 11.1
and to any combined Quarterly Management Accounts of the Restricted
Group required to be produced under clause 11.1) and (ii) clause 10.2,
shall be deemed to be repeated by the Obligors on and as of each
Drawdown Date as if made with reference to the facts and circumstances
existing on each such date unless, in the case of a Revolving Drawing
to be drawn on such Drawdown Date, such Revolving Drawing would not, if
drawn, cause the aggregate Euro Amount of Revolving Drawings to exceed
the aggregate Euro Amount of Revolving Drawings outstanding immediately
prior to the making of that Revolving Drawing (after taking into
account any Revolving Drawing due or due to be made or repaid on the
Drawdown Date of such Revolving Drawing). In the case of an Obligor
which becomes a party to this Agreement after the date hereof the
representations and warranties in clause 10.1 (amended as set out
above) and clause 10.2 (where applicable, in respect of itself only),
shall be deemed to be made by that Obligor on the date that it executes
a Guarantor's Deed of Accession as if made with reference to the facts
and circumstances existing on such day.
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Undertakings
11.1 Positive covenants
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group undertakes with each of the Secured
Parties that, from the date of this Agreement and so long as any moneys
are owing under this Agreement or remain available for drawing by the
Borrowers, it will:
(a) Notice of Default etc.
procure that the Agent is promptly informed of (i) any Default
and any potential breach of any of the undertakings set out in
clause 12 forthwith upon becoming aware thereof and will from
time to time, if so requested by the Agent, confirm to the
Agent in writing that, save as otherwise stated in such
confirmation, no Default has occurred and is continuing, (ii)
(to the extent known to any member of the Restricted Group
which is not an Immaterial Subsidiary) the commencement of all
proceedings and investigations by or before any governmental
body and all actions and proceedings in any court or before
any arbitrator where any such proceedings, investigations or
actions would, if adversely determined, have a Material
Adverse Effect and (iii) any material dispute under any
Principal Agreement where the other party to such Principal
Agreement has threatened to terminate or cancel such Principal
Agreement or withdraw services provided pursuant to such
Principal Agreement;
(b) Consents and licences
without prejudice to clauses 3 and 10.3, ensure that all
action required to be taken by or in relation to any works
council in relation to the Finance Documents is taken promptly
and, for the avoidance of doubt, excluding such consents,
licences and registrations required for the construction,
installation and operation of the Cable Systems, obtain or
cause to be obtained, maintain in full force and effect and
comply in all material respects with the material conditions
and restrictions (if any) imposed in, or in connection with,
every consent, authorisation, licence, registration or
approval of governmental or public bodies or authorities or
courts and do, or cause to be done, all other acts and things
which may from time to time be necessary under applicable law
for the continued due performance of all its material
obligations under this Agreement and the Security Documents;
(c) Use of proceeds
use the proceeds of drawings under this Agreement
exclusively for the purposes specified in clause 1.1;
(d) Pari passu
ensure that its obligations under this Agreement and any
Telekabel Note shall, without prejudice to the provisions of
clause 11.2 or to the security intended to be created pursuant
to the Security Documents, at all times rank at least pari
passu with all its other present and future unsecured and
unsubordinated Indebtedness with the exception of any
obligations which are mandatorily preferred by law and not by
contract;
(e) Business
engage solely in the Permitted Business and in the business of
acting as the holder of shares and/or interests in other
members of the Restricted Group (which shall include the
raising of Permitted Borrowings and the on-lending of such
Borrowed Money to its Subsidiaries in accordance with the
provisions of this Agreement and the entry into of hedging
arrangements on behalf of its Subsidiaries);
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(f) Financial statements
(i) (in the case of UPCF) prepare annual audited consolidated financial
statements of UPCF in accordance with GAAP and cause such financial
statements to be reported on by its auditors and deliver to the Agent
sufficient copies of the same together with the annual financial
statements of each of Radio Public (unconsolidated), the Telekabel
Austrian Entities (consolidated), Stipdon (consolidated), Janco
(unconsolidated) and each Acceding Guarantor, used in the preparation
of the annual audited consolidated financial statements of UPCF, for
distribution to all of the Banks as soon as practicable but not later
than 120 days (or 150 days if UPC or UPCF is in active discussions
with its auditors and if such financial statements of UPCF would have
been subject to a qualification (other than a qualification of a
technical nature and the remedy for the matter giving rise to the
qualification would have no effect on the results of the relevant
members of the Restricted Group for the period to which such financial
statements relate or on the financial position of the relevant member
of the Restricted Group as at the end of such period) if delivered
within 120 days) after the end of the financial year to which they
relate provided that if at the end of the relevant financial year,
UPCF and its Subsidiaries does not constitute the Restricted Group,
UPCF shall also prepare annual audited combined financial statements
in respect of the Restricted Group in accordance with GAAP other than
by reason of the Unrestricted Subsidiaries being excluded in relation
to the same period as the annual audited consolidated financial
statements of UPCF and deliver to the Agent copies of such financial
statements in accordance with the foregoing provisions of this clause
11.1(f))i); and
(ii) procure that sufficient copies for all the Banks of the consolidated
financial statements of UPC and its Subsidiaries in respect of each
fiscal year and quarterly period on forms 10Q and 10K (respectively)
as delivered to the Securities and Exchange Commission are delivered
to the Agent within 120 days of the end of each fiscal year and 45
days of the end of each quarterly period;
(g) Quarterly Management Accounts
(in the case of UPCF) in respect of each Quarterly Period
commencing with the Quarterly Period ending 30th June, 1999
prepare unaudited consolidated Quarterly Management Accounts
in respect of UPCF in accordance with GAAP but without
footnotes and subject to normal year end adjustments and
deliver a copy of the same to the Agent together with the
Quarterly Management Accounts of each of Radio Public
(unconsolidated), the Telekabel Austrian Entities
(consolidated), Stipdon (consolidated), Janco (unconsolidated)
and each Acceding Guarantor, used in the preparation of the
Quarterly Management Accounts of UPCF for distribution to all
of the Banks as soon as practicable but not later than 45 days
after the Quarterly Period to which they relate (except in
relation to the Quarterly Management Accounts in respect of
the Quarterly Period ended 30 June 1999 which shall be
delivered to the Agent as soon as practicable but not later
than 75 days after such Quarterly Period) provided that if at
the end of the relevant Quarterly Period, UPCF and its
Subsidiaries does not constitute the Restricted Group, UPCF
shall also prepare combined Quarterly Management Accounts in
respect of the Restricted Group in relation to the same
Quarterly Period in accordance with GAAP other than by reason
of the Unrestricted Subsidiaries being excluded and deliver a
copy of the same to the Agent for distribution to all of the
Banks as soon as practicable but not later than 45 days after
the Quarterly Period to which they relate;
(h) Monthly information
(in the case of UPCF) in respect of each calendar month
commencing with August 1999, prepare unaudited Monthly
Information for each of:
(i) Radio Public (unconsolidated),
(ii) the Telekabel Austrian Entities (consolidated),
(iii) Stipdon (consolidated),
(iv) Janco (unconsolidated),
(v) each Acceding Guarantor (unconsolidated); and
(vi) the Restricted Group (combined)
and deliver a copy of the same to the Agent for distribution
to all of the Banks as soon as practicable but not later than
45 days after the calendar month to which they relate;
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(i) Delivery of reports
deliver to the Agent, for distribution to the Banks, in each
case at the time of issue thereof or (in the case of the
Compliance Certificates referred to in (i) below) together
with the audited financial statements prepared in respect of
each financial year (in the case of a Compliance Certificate
from the auditors of the Restricted Group) delivered pursuant
to clause 11.1(f)(i) or Quarterly Management Accounts prepared
in respect of each Quarterly Period (in the case of a
Compliance Certificate from an Authorised Officer) delivered
pursuant to clause 11.1(g) in respect of the financial period
to which such Compliance Certificate relates:
(i) a Compliance Certificate from the auditors of the
Restricted Group in respect of each financial year
and an Authorised Officer of UPCF or UPC in respect
of each Quarterly Period;
(ii) an Annual Budget for each financial year for the
Restricted Group no later than the last day of the
preceding financial year;
(j) Change in basis of accounts
(in the case of UPCF) ensure that all financial statements
delivered under clause 11.1(f) are prepared in accordance with
GAAP and in accordance with the accounting principles and
practices used in the preparation of the financial statements
referred to in clause 10.1(f) and the 1999 Budget, including,
without limitation, the cost capitalisation policy used
therein, (the "Original Basis") consistently applied in
respect of each financial year unless to do so would be
inconsistent with then current GAAP (the "New Basis"). If the
preparation of financial statements on the Original Basis is
contrary to the New Basis then UPCF shall promptly notify the
Agent in writing of the relevant change and (at the option of
UPCF) shall either (1) prepare and deliver to the Agent
audited financial statements on both the Original Basis and
the New Basis (or shall prepare and deliver financial
statements on the New Basis only but shall also prepare and
deliver an audited reconciliation statement (a "Reconciliation
Statement") showing those adjustments necessary in order to
reconcile the financial statements produced on the New Basis
to the Original Basis) or (2) request the Agent to enter into
good faith negotiations for such amendments (if any) as are
necessary to the covenants contained in clause 12.1 and any
other provisions of this Agreement affected by such change, in
which event the Agent will enter into such negotiations for a
period of not more than 60 days. If agreement is reached
between UPCF and the Agent (acting on the instructions of the
Majority Banks) within such period as to the amendment of any
such covenants or provisions, then the parties hereto will
enter into such documentation and take such other steps as are
required to put such amendments into effect following which
UPCF shall then be obliged to produce financial statements on
the New Basis only. If no such agreement is reached then UPCF
shall be obliged to prepare and deliver financial statements
on both the Original Basis and the New Basis (or shall prepare
and deliver audited financial statements on the New Basis
accompanied by a Reconciliation Statement).
Where UPCF is under an obligation to deliver financial
statements under clause 11.1(f) on both the Original Basis and
the New Basis (or on the New Basis but accompanied by a
Reconciliation Statement), Monthly Information and Quarterly
Management Accounts shall also be delivered on both bases or
on the New Basis but accompanied by a Reconciliation
Statement.
All financial statements, Quarterly Management Accounts,
Monthly Information and Reconciliation Statements delivered
pursuant to this clause 11.1 (j) shall be delivered within the
relevant time periods set out in clause 11.1.
The provisions of this clause 11.1 (j) shall also apply,
mutatis mutandis, to the preparation and delivery of the
Annual Budget under clause 11.1 (i)(ii);
(k) Financial Year End
maintain a financial year end of 31 December for each member
of the Restricted Group save with the prior written consent of
the Agent acting on the instructions of the Majority Banks;
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(l) Authorised Officers
ensure that any new or replacement Authorised Officer has
provided the Agent with evidence satisfactory to it of such
new officer(s)' authority and a specimen of his or their
signature(s) prior to signing any Compliance Certificates,
Drawdown Notices, or any other notices, requests or
confirmations referred to in this Agreement, any Telekabel
Notes or relating to the Facilities;
(m) Auditors
ensure that Arthur Andersen & Co. is appointed as auditor of
each member of the Restricted Group, in the case of any member
of the Restricted Group which is acquired after the date of
this Agreement, as soon as practicable following such
acquisition, and not change such appointment without
appointing a major accounting firm of recognised international
standing and repute;
(n) Provision of further information
provide the Agent with such financial and other information
concerning each member of the Restricted Group which is not an
Immaterial Subsidiary and their respective affairs as the
Agent or any Bank (acting through the Agent) may from time to
time reasonably request;
(o) Insurance
maintain insurance cover of a type and level which a prudent
company in the same business would effect;
(p) Inspection
if required by the Agent (acting on the instructions of the
Majority Banks), at any time whilst an Event of Default is
continuing, permit, to the extent it is able to do so,
representatives of the Agent or any of the Banks upon
reasonable prior written notice to UPCF or its relevant
Subsidiary, after having made arrangements with UPCF so to do
and after entering into a confidentiality undertaking if
reasonably required by UPCF (a) visit and inspect the
properties of any member of the Restricted Group which is not
an Immaterial Subsidiary during normal business hours, (b)
inspect its books and records other than records which the
relevant member of the Restricted Group is prohibited by law
or contract from disclosing to the Agent and/or any relevant
Bank and (c) discuss with its principal officers and auditors
its business, assets, liabilities, financial position, results
of operations and business prospects provided that any such
discussion with the auditors shall only be on the basis of the
audited accounts of the Restricted Group and Compliance
Certificates issued by the auditors;
(q) Compliance with laws and regulations
comply with the terms and conditions of all laws (excluding
Telecommunications and Cable Laws), regulations, agreements,
licences and including, without limitation, all Environmental
Laws and all Environmental Licences if the failure to comply
therewith, would or is reasonably likely to have a Material
Adverse Effect;
(r) Taxes
file or cause to be filed all tax returns required to be filed
in all jurisdictions in which it is situated or carries on
business or is otherwise subject to Taxation and will pay all
Taxes shown to be due and payable on such returns or any
assessments made against it within the period stipulated for
such payment (other than those being contested in good faith);
(s) Agreed Hedging Programme
with effect from such time as three months EURIBOR exceeds
4.25 per cent. per annum procure that any one or more of the
Obligors maintain interest rate protection arrangements with a
Bank or an Affiliate of a Bank (or any other bank or financial
institution, provided that such bank or financial institution
provides such interest rate protection arrangements on an
unsecured and unguaranteed basis), on a rolling forward not
less than two year basis in respect of at least 50 per cent.
of the then forecast amount of the Loan, which interest rate
protection arrangements have the effect of fixing the maximum
rate of interest payable (excluding the Margin and any other
associated costs) by the Borrowers within 200 basis points of
three month EURIBOR (as at the date that the relevant
arrangements come into effect) for the relevant currency;
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(t) Necessary Authorisations
comply with the terms and conditions of all Telecommunications
and Cable laws if the failure to comply therewith would or is
reasonably likely, in the opinion of the Agent acting on the
instructions of the Majority Banks (acting reasonably) to have
a Material Adverse Effect and to obtain or cause to be
obtained, every material consent, authorisation, licence or
approval of or registration with or declaration to,
governmental or public bodies or authorities or courts in any
Relevant Jurisdiction necessary for the construction,
installation or operation of the Cable Systems (including,
without limitation, the Licences and the Necessary
Authorisations) and (A) ensure that none of the same (to the
extent that it is required to enable any member of the
Restricted Group (other than an Immaterial Subsidiary) to
carry on its business) is revoked, cancelled, suspended,
withdrawn, terminated, expires and is not renewed or otherwise
ceases to be in full force and effect without a new one having
first been put in place with a member of the Restricted Group
(other than an Immaterial Subsidiary) on substantially
identical terms, on terms more beneficial to the Restricted
Group or on terms then required by the relevant governmental
or public body or authority or court in the Relevant
Jurisdiction where failure to take such action would or is
reasonably likely to have a Material Adverse Effect in the
opinion of the Agent acting on the instructions of the
Majority Banks (acting reasonably) and (B) ensure that none of
the same is modified in any respect (other than modifications
of the same so that following such modification the same is on
terms more beneficial to the Restricted Group (other than an
Immaterial Subsidiary) or required by the relevant
governmental or public body or authority or court in the
Relevant Jurisdiction) and that no member of the Restricted
Group (other than an Immaterial Subsidiary) commits any
default in the observance of the conditions or restrictions
(if any) imposed in, or in connection with, any of the same
which, in the case of any of the events listed in this
sub-paragraph (B), in the opinion of the Agent acting on the
instructions of the Majority Banks (acting reasonably), would
or is reasonably likely to have a Material Adverse Effect;
(u) Subordination of loans from Subordinated Creditor
procure that prior to any Relevant Person making any Borrowed
Money (other than Permitted Payments) available to any member
of the Restricted Group, which Borrowed Money will only be
made available to a member of the Restricted Group through an
Obligor, such Relevant Person shall enter into a Relevant
Person Pledge of Shareholder Loans on terms and conditions
satisfactory to the Agent and a Security Provider's Deed of
Accession and provides the Agent with such documents and
evidence as it may reasonably require as to the power and
authority of the Relevant Person to enter into such Relevant
Person Pledge of Shareholder Loans and Security Provider's
Deed of Accession and that the same constitute valid and
legally binding obligations of such Relevant Person
enforceable in accordance with their terms subject (to the
extent applicable) to substantially similar qualifications to
those made in the legal opinions referred to in schedule 3;
(v) UPCF debt to be reduced first
(in the case of UPCF) it shall ensure that during the
Reduction Period and in making any prepayment pursuant to
clause 6.4 or clause 6.6, and so long as such action does not
result in any adverse taxation, legal or other material
consequences, the aggregate of the Drawings outstanding to
UPCF shall be reduced in accordance with the terms of this
Agreement in preference to the aggregate of the Drawings
outstanding to any other Borrower by procuring, where
appropriate, that members of the Restricted Group make
intercompany loans directly or indirectly to UPCF to enable
the relevant Drawings made to UPCF under this Agreement to be
repaid as required by clause 6 provided that (i) this clause
shall not require Telekabel Wien to make any loans to CNA or
other members of the Restricted Group incorporated in Austria
except in accordance with Austrian law and shall not require
or permit Telekabel Wien to make any loans to any other person
other than CNA or other members of the Restricted Group
incorporated in Austria and (ii) shall not require any member
of the Restricted Group which is not a party to the Borrower
Pledge of Shareholder Loans to accede to the Borrower Pledge
of Shareholder Loans solely by reason of it making an
intercompany loan to UPCF or another member of the Restricted
Group for the purposes referred to in this clause 11.1(v);
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(w) Obligor Group
ensure that the combined, consolidated total assets,
consolidated revenues and consolidated EBITDA of each Borrower
and its Subsidiaries as at the date of this Agreement, each
Original Guarantor and its Subsidiaries as at the date of this
Agreement and each Acceding Guarantor and its Subsidiaries as
at the date on which it became a Guarantor (other than
Unrestricted Subsidiaries) is not less than 90 per cent. of
the consolidated total assets, consolidated revenues and
consolidated EBITDA of the Restricted Group. For the purposes
of this clause 11.1(w) the consolidated revenues and
consolidated EBITDA of the Restricted Group or any Obligor
shall be determined by reference to the 12 month period ending
on the most recent Quarter Day in respect of which Quarterly
Management Accounts have been delivered to the Agent under
this Agreement and consolidated total assets shall be
determined as at such Quarter Day by reference to such
Quarterly Management Accounts. In determining compliance with
the undertaking contained in this clause 11.1(w) following any
acquisition by a member of the Restricted Group, the
consolidated revenues and consolidated EBITDA of the
Restricted Group shall be adjusted to take account of the
revenues and EBITDA attributable to the acquisition in respect
of the 12 month period ending on such Quarter Day and the
consolidated total assets of the Restricted Group shall be
adjusted to take account of the total assets attributable to
such acquisition as at such Quarter Day;
(x) Shareholdings and Unrestricted Subsidiaries
notify the Agent in writing at the time of delivery of each
Compliance Certificate by an Authorised Officer of UPCF or UPC
of (i) any changes to the structure chart set out in part B of
schedule 13 and (ii) the identity of each Unrestricted
Subsidiary;
(y) Inter-connection and chello
ensure that each member of the Restricted Group which is not
an Immaterial Subsidiary (i) which offers residential and/or
business telephony services in any country maintains
inter-connection arrangements with one or more major fixed
line telephony operators in that country and (ii) which offers
internet and/or data services is provided with such services
by chello broadband N.V. (or if chello broadband N.V. does not
offer such services, by another provider on arm's length
commercial terms provided that as soon as chello broadband
N.V. does offer such services, such member of the Restricted
Group shall be provided with such services by chello broadband
N.V. on terms no less favourable to the relevant member of the
Restricted Group to those being offered by its existing
provider);
(z) Restructuring
(in the case of UPCF) ensure that:
(i) notwithstanding anything to the contrary in this Agreement, the
Restructuring, so far as it affects members of the Restricted Group
which are incorporated in Western Europe, is completed within 3 months
of the date hereof, and so far as it affects members of the Restricted
Group which are incorporated in Eastern Europe, is completed within
six months of the date hereof and that the Agent is promptly notified
of the completion of the Restructuring; and
(ii) in respect of any Obligor whose shares are subject to an existing
pledge or charge in favour of the Security Agent and which is
transferred as part of the Restructuring, any member of the Restricted
Group which holds shares in such company as a result of the
Restructuring enters into a pledge or charge in favour of the Security
Agent in respect of such shares of at least an equivalent nature and
ranking to the existing pledge or charge and provides the Agent with
such evidence as it may reasonably request as to the power and
authority of such member of the Restricted Group to enter into the
pledge or charge and that such pledge or charge constitutes valid and
legally binding obligations of such party enforceable in accordance
with its terms subject (to the extent applicable) to substantially
similar qualifications to those made in the legal opinions referred to
in schedule 3.
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(aa) Shareholder Loans
(in the case of UPCF) ensure that:
(i) each Subordinated Shareholder Loan and each shareholder loan entered
into between a member of the Restricted Group which is a party to the
Borrower Pledge of Shareholder Loans as a creditor and a Subsidiary of
such member of the Restricted Group is governed by the law of The
Netherlands;
(ii) any member of the Restricted Group (other than the Telekabel Austrian
Entities) which operates or is incorporated in Western Europe accedes
to the Borrower Pledge of Shareholder Loans prior to making a
shareholder loan to any other member of the Restricted Group and
provides the Agent with such evidence as it may reasonably request as
to the power and authority of such member of the Restricted Group to
accede to the Borrower Pledge of Shareholder Loans and that the
Borrower Pledge of Shareholder Loans constitutes valid and legally
binding obligations of such party enforceable in accordance with its
terms subject (to the extent possible) to substantially similar
qualifications to those made in the legal opinions referred to in
schedule 3; and
(iii)any member of the Restricted Group (other than the Telekabel Austrian
Entities) which operates or is incorporated in Western Europe provides
a notification of pledge to the Security Agent in respect of any
shareholder loan made to it;
(bb) First Hungary Fund Shares
if any member of the Restricted Group acquires all or any part
of the shareholding in Telekabel Hungary owned by The First
Hungary Fund it shall as soon as practicable after such
acquisition enter into a pledge or charge in favour of the
Security Agent in respect of such shares in substantially the
form of the Telekabel Hungary Share Security and shall provide
the Agent with such evidence as it may reasonably request as
to the power and authority of such member of the Restricted
Group to enter into such pledge or charge and that such pledge
or charge constitutes valid and legally binding obligations of
such member of the Restricted Group enforceable in accordance
with its terms subject (to the extent possible) to
substantially similar qualifications to those made in the
legal opinions referred to in schedule 3;
11.2 Negative covenants
Each Obligor in respect of itself and its Material Subsidiaries which
are members of the Restricted Group undertakes with each of the Secured
Parties that, from the date of this Agreement and so long as any moneys
are owing under this Agreement or remain available for drawing by the
Borrowers, without the prior written consent of the Agent acting on the
instructions of the Majority Banks:
(a) Negative pledge
it will not permit any Encumbrance (other than the Permitted
Encumbrances) by any member of the Restricted Group to
subsist, arise or be created or extended over all or any part
of their respective present or future undertakings, assets,
rights or revenues to secure or prefer any present or future
Indebtedness of any member of the Restricted Group or any
other person;
(b) No merger
it will not merge or consolidate with any other company or
person and it will procure that no member of the Restricted
Group merges or consolidates with any other company or person
save for mergers between any members of the Restricted Group
with (i) any or all of the other members of the Restricted
Group or (ii) an Unrestricted Subsidiary ("Original Entities")
into one or more entities (each a "Merged Entity") provided
that:
(i) reasonable details of the proposed merger in order to demonstrate
satisfaction with paragraphs (ii) to (v) below are provided to the
Agent at least 10 days before the merger is to be entered into and, if
the proposed merger is between any members of the Restricted Group and
an Unrestricted Subsidiary, UPCF has delivered to the Agent financial
projections based on assumptions which are no more aggressive than
those used in the preparation of the Information Memorandum which
demonstrate that the Restricted Group will be in compliance with the
undertakings set out in clause 12.1 for the period commencing on the
date of merger and ending on the Final Repayment Date;
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(ii) such Merged Entity will be a member of the Restricted Group and will
be liable for the obligations of the relevant Original Entities
(including the obligations under this Agreement and the Security
Documents) which obligations remain unaffected thereby and entitled to
the benefit of all the rights of such Original Entities;
(iii)such Merged Entity has entered into Security Documents (if applicable)
which provide security over the same assets of at least an equivalent
nature and ranking to the security provided by the relevant Original
Entities pursuant to any Security Documents entered into by them and
any possibility of the Security Documents referred to in this
paragraph or paragraph (iv) below being challenged or set aside is not
materially greater than any such possibility in relation to the
Security Documents entered into by or in respect of the share capital
of any relevant Original Entity;
(iv) (if all or any part of the share capital of any of the relevant
Original Entities was charged pursuant to a Security Document) the
equivalent part of the issued share capital of such Merged Entity is
charged pursuant to a Security Document on terms of at least an
equivalent nature and equivalent ranking as any Security Document
relating to the shares in each relevant Original Entity; and
(v) that all the property and other assets of the relevant Original
Entities are vested in the Merged Entity and that the Merged Entity
has assumed all the rights and obligations of the relevant Original
Entities under any relevant Principal Agreements, material Necessary
Authorisations, Licences and other licences or registrations (to the
extent reasonably necessary for the business of the relevant Original
Entities) granted in favour of the Original Entities under
Telecommunications and Cable Laws and/or all such rights and
obligations have been transferred to the Merged Entity and/or the
relevant Principal Agreements, Necessary Authorisations, Licences and
other licences or registrations (to the extent reasonably necessary
for the business of the relevant Original Entities) granted in favour
of the Original Entities under Telecommunications and Cable Laws have
been reissued to the Merged Entity;
(c) Disposals
it will not and will procure that no other member of the
Restricted Group (other than an Immaterial Subsidiary) will
sell, transfer, lend or otherwise dispose of or cease to
exercise direct control over any part of its present or future
undertaking, assets, rights or revenues whether by one or a
series of transactions related or not (other than Permitted
Disposals);
(d) Intra Group accounts
(without limiting the generality of and subject to the
exceptions set out in clause 11.2(c)) it will not (other than
pursuant to the Security Documents) subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any member of the Restricted Group
and will procure that no member of the Restricted Group (other
than an Immaterial Subsidiary) will subordinate, postpone,
defer, assign or otherwise dispose of or deal with, any
Indebtedness owing to it by any other member of the Restricted
Group save as required pursuant to this Agreement for the
benefit of the Secured Parties provided that this clause
11.2(d) shall not restrict the repayment by one member of the
Restricted Group of Indebtedness owed to another member of the
Restricted Group or any assignment or disposal of any Borrowed
Money owing by one member of the Restricted Group to another
provided that following such assignment or disposal such
Borrowed Money would be permitted by clause 11.2(e);
(e) Loans and guarantees
it will not, and will procure that no member of the Restricted
Group will, make any loans, grant any credit or give any
guarantee to or for the benefit of, or enter into any
transaction having the effect of lending money with, any
person other than (i) loans from a member of the Restricted
Group which is a party to the Borrower Pledge of Shareholder
Loans to another member of the Restricted Group provided that
(1) loans from one Borrower to another Borrower shall not be
permitted and none of Janco, CNA or Telekabel Wien may enter
into any loan with another member of the Restricted Group save
that Telekabel Wien may make loans to other Telekabel Austrian
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Entities, and (2) any loan made by a member of the Restricted
Group to another member of the Restricted Group which has not
given a notification of pledge to the Security Agent shall be
made through a member of the Restricted Group which has given
a notification of pledge to the Security Agent, (ii) normal
trade credit in the ordinary course of business, (iii) loans
to employees or directors of the relevant member of the
Restricted Group for any purpose, including for the purpose of
meeting tax liabilities in connection with Approved Stock
Options in a maximum aggregate amount during the Finance
Period of Euro 15,000,000, (iv) as permitted by clause
11.2(f), (v) guarantees given (1) by any Obligor in respect of
the liabilities of another Obligor, or (2) by a member of the
Restricted Group in respect of the liabilities of an Obligor
or, (3) by an Obligor in respect of the liabilities of another
member of the Restricted Group (which is not an Obligor)
provided that such member of the Restricted Group becomes an
Acceding Guarantor on, or prior to, the giving of such
guarantee in accordance with clause 9.17 or, (4) by a member
of the Restricted Group (which is not an Obligor) in respect
of the liabilities of another member of the Restricted Group
(which is not an Obligor) or (vi) to the extent that the same
constitute Permitted Payments;
(f) Borrowed Money
it will not and will procure that no other member the
Restricted Group (other than an Immaterial Subsidiary) will
create, incur or otherwise permit to be outstanding any
Borrowed Money (other than Permitted Borrowings);
(g) Issue of shares
(i) the Obligors will not and will procure that no member of
the Restricted Group (other than in respect of such other
members of the Restricted Group in order to permit a solvent
reorganisation permitted under clause 11.2(b)) reduces its
capital or purchases or redeems any class of its shares or any
other ownership in it and (ii) it will not and will procure
that no member of the Restricted Group issues any shares of
any class provided that (A) any member of the Restricted Group
may issue shares to or otherwise acquire additional rights
from any other member of the Restricted Group so long as (if
any of the existing shares in the relevant member of the
Restricted Group are charged or pledged in favour of any
Secured Party) such shares are charged or pledged in favour of
the Secured Parties pursuant to the terms of a Security
Document and there are delivered at the same time to the
Security Agent the relevant share certificates and blank stock
transfer forms (or equivalent documents) in respect thereof
together with such other documents and evidence and legal
opinions as the Agent may reasonably require, (B) UPCF may
issue shares to (1) UPC, or (2) any other person provided that
in the case of (1) such shares are charged or pledged in
favour of the Secured Parties pursuant to the terms of a
Security Document and there are delivered at the same time to
the Security Agent the relevant share certificates and blank
stock transfer forms (or equivalent documents) in respect
thereof together with such other documents and evidence and
legal opinions as the Agent may reasonably require and in the
case of (2), UPCF shall apply the market value of such shares
as are issued by it in prepayment of the Loan as if such
obligation to prepay had arisen under clause 6.6(b) and the
Facility A Total Commitments shall be automatically cancelled
by the amount prepaid on the same basis, and (C) any member of
the Restricted Group may issue shares pursuant to the exercise
of Approved Stock Options;
(h) Investments
it will not and will procure that no member of the Restricted
Group:
(i) acquires all or any substantial part of the assets,
property or business of any other person or any
assets that constitute a division or operating unit
of the business of any other person; or
(ii) creates or acquires any Subsidiary or Associated
Company or otherwise enters into any joint venture
arrangement or partnership or similar undertaking
with any person
other than Permitted Acquisitions and Permitted European
Acquisitions;
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(i) Capital expenditure
it will not and will procure that no member of the Restricted
Group incurs any capital expenditure other than in relation to
the Permitted Business;
(j) Swaps and hedging
it will not and will procure that no member of the Restricted
Group enters into any interest rate or currency swaps or other
hedging arrangements other than non-speculative arrangements
directly relating to the risk management of any Borrowed Money
permitted to subsist by the terms of this Agreement and
entered into in the ordinary course of business for the
genuine hedging of the relevant underlying transaction;
(k) Restricted Payments
it will not and will procure that no member of the Restricted
Group makes any Restricted Payments other than Permitted
Payments or enters into any transaction with a Relevant Person
other than on bona fide arms length commercial terms or on
terms which are fair and reasonable and in the best interests
of the Restricted Group. The restriction contained in this
clause 11.2(k) on the payment by any member of the Restricted
Group of Management Fees shall cease to apply during such
period as the applicable ratio for the purposes of clause
12.1(b) is 3.50:1 (or less);
(l) Constitutive documents
it will not, and will procure that none of members of the
Restricted Group amends its constitutive documents in any way
which would or is reasonably likely to adversely affect (in
terms of value, enforceability or otherwise) the charge or
pledge granted to the Secured Parties pursuant to the Share
Securities; and
(m) chello and Priority
it will not and will not permit any contractual arrangements
between chello broadband N.V. and Priority Telecom N.V. and
the Restricted Group to be entered into other than on bona
fide arm's length commercial terms or on terms which are fair
and reasonable and in the best interests of the Restricted
Group.
Financial covenants
12.1 Financial covenants
Each of the Borrowers undertakes with each of the Secured Parties that,
from the date of this Agreement and so long as any moneys are owing
under this Agreement or any of the Commitments remain outstanding, it
will ensure that:
(a) Maximum Senior Debt to Adjusted Annualised Consolidated EBITDA
on each Quarter Day falling after the date of this Agreement
but on or before 30th June, 2001 the ratio of Senior Debt to
Adjusted Annualised Consolidated EBITDA (calculated on each
Quarter Day by reference to the Six Month Period ending on
such day) shall not exceed 5.75:1.
(b) Maximum Senior Debt to Annualised Consolidated EBITDA
on each Quarter Day falling within the period set out in
column (1) below the ratio of Senior Debt to Annualised
Consolidated EBITDA (calculated on each Quarter Day by
reference to the Six Month Period ending on such date) shall
not exceed the number set out against such period in column
(2) below:
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- ------------------------------------------------------ -------------------
(1) (2)
Period Ratio
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 1st July, 2001 to (and 5.00:1
including) 31st March 2002
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 1st April, 2002 to (and 4.50:1
including) 30th September, 2002
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 1st October, 2002 to (and 4.00:1
including) 31st March 2003
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 1st April, 2003 to (and 3.50:1
including) 31st December, 2003
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 1st January, 2004 and thereafter 3.00:1
- ------------------------------------------------------ -------------------
(c) Senior Debt Cash Interest Charges
on each Quarter Day falling within the period set out in
column (1) below the ratio of Consolidated EBITDA (calculated
on each Quarter Day by reference to the Six Month Period
ending on such day) to the amount of Senior Debt Cash Interest
Charges attributable to the Six Month Period ending on such
Quarter Day shall be greater than the number set out against
such period in column (2) below:
------------------------------------------------------ --------------------
(1) (2)
Period Ratio
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from the date of this Agreement to (and including) 1.5:1
31st December, 2001
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2002 to (and 1.75:1
including 31st December, 2002)
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2003 to (and 2.00:1
including) 31st December, 2003
------------------------------------------------------ --------------------
------------------------------------------------------ --------------------
from (and including) 1st January, 2004 and thereafter 2.50:1
------------------------------------------------------ --------------------
(d) Senior Debt Service Cover
on each Quarter Day falling within the period set out in
column (1) below the ratio of Annualised Consolidated EBITDA
(calculated on each Quarter Day by reference to the Six Month
Period ending on such day) to Pro Forma Senior Debt Service in
respect of the period of twelve months immediately following
such Quarter Day shall be equal to or greater than the number
set out against such period in column (2) below:
- ------------------------------------------------------ -------------------
(1) (2)
Period Ratio
- ------------------------------------------------------ -------------------
- ------------------------------------------------------ -------------------
from (and including) 30 June 2002 and thereafter 1.00:1
- ------------------------------------------------------ -------------------
(e) Minimum EBITDA
on each Quarter Day falling after the date of this Agreement
the aggregate consolidated EBITDA of the Telekabel Austrian
Entities, Janco and Radio Public and their respective
Subsidiaries (taken as a whole) in respect of the twelve month
period ending on such Quarter Day shall be not less than 75
per cent. of the projected aggregate consolidated EBITDA of
the TeleKabel Austrian Entities, Janco and Radio Public and
their respective Subsidiaries (taken as a whole) in respect of
such period as set out in the Management Base Case.
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12.2 Auditors certificate
If at any time the Majority Banks (acting reasonably and following
consultation with UPCF) do not consider that any figure set out in any
Compliance Certificate issued by any Authorised Officer is correct,
they shall be entitled within 30 days of the date of the delivery of
such Compliance Certificate to the Agent pursuant to clause 12.1 to
call for a certificate from UPCF's auditors as to such figure. For such
purposes UPCF's auditors shall act as independent experts and not as
arbiters and every such certificate shall be addressed to the Agent (on
behalf of the Banks) and be at the expense of UPCF (unless the
certificate so provided by UPCF's auditors shows that the relevant
figures set out in the Compliance Certificate are in fact correct in
which case such certificate shall be at the expense of the Banks). The
Majority Banks may only call for one such certificate in any financial
year unless the relevant figures set out in the Compliance Certificate
are in fact incorrect in which case the Majority Banks may call for up
to three further such certificates in such financial year, provided
that if; in any of such certificates, the relevant figures set out in
the Compliance Certificate are certified as being in fact correct, then
the Majority Banks may not call for such further certificates in such
financial year. If the Majority Banks call for such a certificate all
calculations under this Agreement by reference to the relevant figure
shall (i) until the UPCF's auditors deliver the relevant certificate
under this clause 12.2 be made by reference to the figure set out in
the relevant Compliance Certificate delivered to the Agent under this
Agreement and (ii) following the delivery by UPCF's auditors of a
certificate under this clause 12.2 be made by reference to such
certificate and UPCF undertakes forthwith to take all action including,
without limitation, the prepayment of all or part of the Loan so as to
procure that all action taken on the basis of the relevant Compliance
Certificate which on the basis of such auditors' certificate would not
have been permitted is reversed.
12.3 Negative EBITDA
UPCF agrees that negative EBITDA attributable to New Services shall not
exceed Euro 50,000,000 in aggregate for the period from 30 June 1999
to 30 June 2001 unless funded by UPC by means of a new cash
Subordinated Shareholder Loan or by a cash subscription for equity
share capital of UPCF which Subordinated Shareholder Loan or
subscription for equity share capital is made no later than 45 days
after the date on which such limit was exceeded.
Events of Default
13.1 Events of default
Each of the events and circumstances set out below is an Event of
Default (whether or not caused by any reason outside the control of a
member of the Restricted Group):
(a) Non-payment
any Borrower fails to pay any principal sum due from it under
this Agreement and/or any Telekabel Note within one Banking
Day of the due date in the currency, at the time and in the
manner stipulated in this Agreement and/or the relevant
Telekabel Note, or any other sum due from it under this
Agreement and/or any Telekabel Note within three Banking Days
of the due date in the currency and in the manner stipulated
in this Agreement and/or the relevant Telekabel Note; or
(b) Breach of certain obligations
any Obligor commits any breach of or omits to observe any of
the obligations or undertakings expressed to be assumed by it
under clauses 11.1(c), (d), (e), (f), (g), (h), (i)(i) and
(k), clause 11.2(a), (b), (c), (f),(g), (h), (i) and (k) and
clause 12; or
(c) Breach of other obligations
UPC or any Obligor commits any breach of or omits to observe
any of the obligations or undertakings expressed to be assumed
by it under any of the Finance Documents (other than failure
to pay any sum when due or any breach of the undertakings
referred to in (b) above) and, in respect of any such breach
or omission which is capable of remedy, such action as the
Agent may require shall not have been taken within 28 days of
the Agent notifying UPC or the relevant Obligor of such
default and of such required action; or
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(d) Misrepresentation
any representation or warranty made or deemed to be made or
repeated by or in respect of UPC or any Obligor or any other
member of the Restricted Group in or pursuant to any of the
Finance Documents or in any notice, certificate or statement
referred to in or delivered under any of the Finance Documents
is or proves to have been incorrect or misleading in any
material and adverse respect and, in the event that the act or
circumstance which led to such representation or warranty
being incorrect or misleading is capable of remedy, such
action as the Agent may require shall not have been taken
within 28 days of the Agent notifying the person who made or
was deemed to have made or repeated such representation or
warranty of such act or circumstance and such required action;
or
(e) Challenge to security
any Security Document is not or ceases to be effective or UPC
or any member of the Restricted Group shall in any way
challenge, or proceedings shall in any way be brought to
challenge, the prior status of the charges created by the
Security Documents or the validity or enforceability of the
Security Documents; or
(f) Cross-default
(i) any Borrowed Money of UPC or any member of the Restricted
Group is not paid when due (or within any applicable grace
period expressly contained in the agreement relating to such
Borrowed Money in its original terms) or (ii) any Borrowed
Money of UPC or any member of the Restricted Group becomes
(whether by declaration or automatically in accordance with
the relevant agreement or instrument constituting the same)
due and payable prior to the date when it would otherwise have
become due or (iii) any creditor of UPC or any member of the
Restricted Group becomes entitled to declare any Borrowed
Money of UPC or any member of the Restricted Group so due and
payable or to require cash collateralisation or security for
any such Borrowed Money or (iv) any facility or commitment
available to UPC or any member of the Restricted Group
relating to Borrowed Money is withdrawn, suspended or
cancelled by reason of any default (however described) of UPC
or the relevant member of the Restricted Group and the amount,
or aggregate amount at any one time, of all Borrowed Money in
relation to which any of the foregoing events set out in (i),
(ii), (iii) or (iv) shall have occurred and be continuing is
equal to or greater than Euro 15,000,000 in aggregate (in the
case of the members of the Restricted Group) or
Euro 50,000,000 (in the case of UPC) or, in each case, its
equivalent in the currency in which the same is denominated
and payable provided that (1) there shall not be an Event of
Default under sub-clauses (ii) or (iii) by reason solely of an
event which entitles the Agent to give a notice requiring
prepayment of the Loan pursuant to clause 6.6(a) and (2) there
shall not be an Event of Default under sub-clauses (i), (ii)
or (iii) in respect of Borrowed Money owing by a member of the
Restricted Group to another member of the Restricted Group
which is permitted under this Agreement; or
(g) Derivatives Contract default
(i) UPC or any member of the Restricted Group fails to make
payment in relation to a Derivatives Contract of any sum equal
to or greater than Euro 15,000,000 in aggregate at any one
time (or its equivalent in the relevant currency of payment)
with respect to any member of the Restricted Group and
Euro 50,000,000 in aggregate at any one time (or its
equivalent in the relevant currency payment) with respect to
UPC on its due date (or within any applicable grace period
expressly contained in the agreement relating to such
Derivatives Contract in its original terms); or (ii) the
counterparty to a Derivatives Contract becomes entitled to
terminate that Derivatives Contract early by reason of default
on the part of UPC or any member of the Restricted Group and
the Net Derivatives Liability of UPC or members of the
Restricted Group, in the aggregate, under all its Derivatives
Contracts in relation to which any of the foregoing events
shall have occurred at the relevant time is equal to or
greater than the amount set forth herein for the applicable
entity (or its equivalent in the relevant currency) provided
that there shall not be an Event of Default under sub-clause
(ii) by reason solely of an event which entitles the Agent to
give a notice requiring prepayment of the Loan pursuant to
clause 6.6(a); or
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(h) Legal process
(i) any judgment or order for an amount of Euro 15,000,000 (or its
equivalent) made against any member of the Restricted Group or for an
amount of Euro 50,000,000 (or its equivalent) made against UPC, is not
stayed, complied with or being appealed against in good faith by
appropriate proceedings (provided that such appeal is being diligently
pursued and UPCF has demonstrated to the reasonable satisfaction of
the Agent (acting on the instructions of the Majority Banks) that the
appeal is not frivolous, vexatious or an abuse of the process of the
court) within 14 days; or
(ii a creditor attaches or takes possession of or a distress, execution,
sequestration or other process is levied or enforced upon or sued out
against, any material part of the undertaking assets, rights or
revenues of any member of the Restricted Group (other than an
Immaterial Subsidiary) and is not discharged within 14 days save where
the relevant member of the Restricted Group is, in good faith,
contesting the relevant process by appropriate proceedings diligently
pursued and the Majority Banks are reasonably satisfied that the
ability of the Obligors to comply with their respective obligations
under the Finance Documents will not be materially and adversely
affected whilst such process is being so contested; or
(i) Insolvency
(i) The Netherlands: UPC or any member of the Restricted Group organised
in The Netherlands is declared bankrupt (in staat van faillissement
verklaard) or enters into a preliminary or definitive moratorium (in
voorlopige of definitieve surseance van betaling gaan) pursuant to the
Dutch Bankruptcy Act (Faillissementswet); or
(ii) Austria: any "Reorganisationsverfahren", "Ausgleich" or "Konkurs"
under the applicable Austrian Laws is being opened on the assets of
any member of the Restricted Group organised in Austria or any such
member of the Restricted Group enters into an agreement with its
creditors having the same effect;
(iii)Belgium: any member of the Restricted Group incorporated in Belgium is
declared bankrupt under the Bankruptcy Act of 8 August 1997 of Belgium
(or any replacement enactment therefor which is entered into after the
date of this Agreement) or is otherwise subject to the proceeding
provided under Section 8 of that Bankruptcy Act or takes any step to
or otherwise enters into composition proceedings under the
Compositions Act of 17 July 1997 of Belgium (or any replacement
enactment therefor which is entered into after the date of this
Agreement);
(iv) Norway: with respect to any member of the Restricted Group
incorporated in Norway, any order of a competent court or an event
analogous thereto shall be made or any effective resolution passed
with a view to the bankruptcy, composition proceedings, debt
negotiations, liquidation, winding-up or similar event pursuant to the
Norwegian Bankruptcy Act of 8th June 1984 or any replacement enactment
therefor which is entered into after the date of this Agreement;
(v) United States of America: any member of the Restricted Group (other
than an Immaterial Subsidiary) which is a partner of any partnership
formed under the laws of the states of Colorado or Delaware, United
States of America: (A) shall become insolvent, have made a transfer in
fraud of creditors or an assignment for the benefit of creditors, or
have admitted in writing its inability to pay its debts as they become
due; (B) is generally not paying its debts as such debts because due;
(C) shall have had appointed a receiver, a custodian for, or taken
possession of, all or substantially all of its assets, in a proceeding
brought by or against such Restricted Group member, and such
appointment shall not have been discharged or such possession shall
not have been terminated within thirty days after the effective date
thereof such Restricted Group member shall have consented to or
acquiesced in such appointment or possession; (D) shall have filed a
petition for relief under the insolvency, bankruptcy or similar laws
of the United States of America or any state thereof, or an
involuntary petition for such relief shall have been filed against any
such Restricted Group member under such laws and shall not have been
dismissed or terminated within thirty days after such involuntary
petition is filed; or (E) shall have failed to have discharged or
obtained a stay of any proceeding to enforce, within a period of ten
days after the commencement thereof, any attachment, sequestration or
similar proceeding asserted against all or substantially all of the
assets of such Restricted Group member;
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(vi) Czech Republic: any member of the Restricted Group (other than an
Immaterial Subsidiary) which is incorporated in or which has a branch
office in the Czech Republic is subject in the Czech Republic to: (A)
bankruptcy proceedings under Act No. 328/1991 Coll., as amended, on
Bankruptcy and Composition (the "Bankruptcy Act"); (B) involuntary
composition proceedings under the Bankruptcy Act; (C) voluntary
composition proceedings under the Bankruptcy Act; (D) voluntary
winding up with liquidation under Act No. 513/1991 Coll., as amended
(the "Commercial Code"); or (E) involuntary winding up with
liquidation under the Commercial Code; or
(vii)Republic of Hungary: any member of the Restricted Group (other than an
Immaterial Subsidiary) which is incorporated or which has a branch
office in the Republic of Hungary:
(A) shall have filed a petition for bankruptcy (csod); or
(B) becomes insolvent: or
(C) is not paying its debts as such debts become due; or
(D) shall have filed a petition for voluntary liquidation
(felszamolas); or
(E) an involuntary liquidation (felszamolas) proceedings shall
have been commenced against; or
(F) an involuntary liquidation (felszamolas) proceedings shall
have been commenced against its branch office; or
(j) Reduction or loss of capital
a meeting is convened by UPCF or any other entity in the
Restricted Group which is not, directly or indirectly, a
Subsidiary of UPCF for the purpose of passing any resolution
or agreeing to, or UPCF or any such entity does, purchase,
reduce or redeem any of its share capital; or
(k) Winding up
any petition is presented and is not withdrawn or discharged
within 14 days or other step is taken for the purpose of
winding up UPC or any member of the Restricted Group (other
than an Immaterial Subsidiary) (not being a petition which
UPC, or the relevant member of the Restricted Group (as the
case may be) can demonstrate to the satisfaction of the Agent,
is frivolous, vexatious or an abuse of the process of the
court or relates to a claim to which UPC or the relevant
member of the Restricted Group (as the case may be) has a good
defence and which is being vigorously contested by UPC or the
relevant member of the Restricted Group (as the case may be))
or an order is made or resolution passed for the winding up of
or any member of the Restricted Group which is not an
Immaterial Subsidiary or a notice is issued convening a
meeting for the purpose of passing any such resolution other
than of a member of the Restricted Group other than Obligors
in relation to, or for the purpose of, a solvent
reorganisation (i) permitted under clause 11.2(b) or (ii) on
terms previously approved by the Agent (acting on the
instructions of the Majority Banks); or
(l) Administration: any petition is presented and is not withdrawn
or discharged within 14 days or any other step is taken for
the purpose of the appointment of an administrator of UPC or
any member of the Restricted Group (other than an Immaterial
Subsidiary) or an administration order is made in relation to
UPC or any member of the Restricted Group (other than an
Immaterial Subsidiary); or
(m) Appointment of receivers and managers: any administrative or
other receiver is appointed of UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary) or any
material part of their respective assets and/or undertakings
or any other steps are taken to enforce any Encumbrance over
all or any material part of the assets of UPC or any member of
the Restricted Group (other than an Immaterial Subsidiary); or
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(n) Compositions
any steps are taken, or negotiations commenced, by UPC or any
member of the Restricted Group (other than an Immaterial
Subsidiary) or by any of their respective creditors with a
view to proposing any kind of composition, compromise or
arrangement involving such company and any of its creditors;
or
(o) Analogous proceedings
there occurs, in relation to UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary), in any
country or territory in which it carries on business or to the
jurisdiction of whose courts any part of its assets is
subject, any event which corresponds with, or have an effect
equivalent or similar to, any of those mentioned in clauses
14.1(h) to 14.1(n) (inclusive) or UPC or any member of the
Restricted Group (other than an Immaterial Subsidiary)
otherwise becomes subject, in any such country or territory,
to the operation of any law relating to insolvency, bankruptcy
or liquidation (other than merely by virtue of its existence);
or
(p) Cessation of business
UPC or the Restricted Group (taken as a whole) suspends or
ceases or threatens to suspend or cease to carry on their
respective businesses; or
(q) Seizure
all or a material part of the undertakings, assets, rights or
revenues of; or shares or other ownership interests in UPC or
the Restricted Group (taken as a whole) are seized,
nationalised, expropriated or compulsorily acquired by or
under the authority of any government; or
(r) Principal Agreements
(i) save as is required by any term of this Agreement any Principal
Agreement is terminated, suspended, revoked or cancelled or otherwise
ceases to be in full force and effect (unless, either (i) in the case
of an Interconnect Agreement only, services of a similar nature to
those provided pursuant to such Principal Agreement are at all times
provided to the Restricted Group on terms which are not materially
more onerous on the relevant member of the Restricted Group or on the
terms imposed by the mandatory requirements of any regulatory body or
(ii), in the case of a Shareholders Agreement only, such termination,
suspension, revocation, cancellation or cessation (in the reasonable
opinion of the Agent) would not or is not reasonably likely to have a
Material Adverse Effect); or
(ii) any alteration or variation is made to any term of any Principal
Agreement which individually or cumulatively (in the reasonable
opinion of the Agent) would or is reasonably likely to have a Material
Adverse Effect; or
(iii)any party breaches any term of or repudiates any of its obligations
under any of the Principal Agreements where such breach or repudiation
(in the opinion of the Agent exercised reasonably) would or is
reasonably likely to have a Material Adverse Effect unless, in the
case of a breach of a Principal Agreement by any person other than any
member of the Restricted Group, the relevant services are at all
relevant times provided to the appropriate members of the Restricted
Group on the basis set out in clause 14.1(r)(i); or
(s) Unlawfulness
it becomes unlawful at any time for UPC, any Obligor or any
Subordinated Creditor to perform any of their respective
material obligations under any of the Finance Documents or any
of the material obligations of UPC, any Obligor or any
Subordinated Creditor under any of the Finance Documents
becomes unenforceable in any way or there ceases to be
security over the relevant property or assets of UPC or the
relevant Obligor as intended and created by the Security
Documents; or
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(t) Environmental matters
as a result of any Environmental Law any of the Finance
Parties becomes subject to a material, in the reasonable
opinion of the Agent, obligation (actual or contingent, in the
case of any contingent obligation, being one which, at the
relevant time, would be likely to arise) directly as a result
of it entering into any of the Finance Documents which was not
caused by its negligence or wilful default; or
(u) Repudiation
UPC, any Obligor or any Subordinated Creditor repudiates any
of the Finance Documents to which it is a party or does or
causes or permits to be done any act or thing clearly
evidencing an intention to repudiate this Agreement or any
such Security Document; or
(v) Subordinated Creditors
(i) a Subordinated Creditor commits any material breach of or omits to
observe any of the obligations or undertakings expressed to be assumed
by it under the Relevant Person Pledge of Shareholder Loans and in
respect of any such breach or omission which, in the opinion of the
Agent (acting on the instructions of the Majority Banks (acting
reasonably)) is capable of remedy, such action as the Agent may
require shall not have been taken within 28 days of the Agent
notifying the relevant Subordinated Creditor thereof and of such
required action; or
(ii) any representation or warranty made or deemed to be made or repeated
by or in respect of any Subordinated Creditor in or pursuant to the
Relevant Person Pledge of Shareholder Loans is or proves to have been
incorrect or misleading in any material and adverse respect on the
date on which it was made or deemed to be made or repeated and, in the
event that the act or circumstance which led to such representation or
warranty being incorrect or misleading is capable of remedy, such
action as the Agent may require shall not have been taken within 28
days of the Agent notifying the relevant Subordinated Creditor of such
act or circumstance and such required action; or
(iii)any Subordinated Creditor is not or ceases to be bound by a Relevant
Person Pledge of Shareholder Loans; or
(iv) any payment due from a member of the Restricted Group to a
Subordinated Creditor is not or ceases to be subordinated to the
amounts owing under this Agreement other than any payment that is not
required to be so subordinated according to the terms of this
Agreement or any other Finance Document; or
(v) any Subordinated Creditor takes steps to contest the subordination
effected by a Relevant Person Pledge of Shareholder Loans; or
(w) Material events
any other event occurs or circumstances arise which in the
reasonable opinion of the Agent would or is reasonably likely
to have a Material Adverse Effect; or
(x) Qualification of accounts
the auditors of UPC or the Restricted Group qualify their
report on the audited consolidated financial statements of UPC
or, as the case may be, the Restricted Group in such a way as
to assume that UPC or, as the case may be, the Restricted
Group, is not a going concern.
13.2 Acceleration
The Agent may and if so requested by the Majority Banks shall, without
prejudice to any other rights of the Banks, at any time after the
happening of an Event of Default so long as the same is continuing,
unremedied or unwaived by notice to the Borrowers declare that:
(a) the obligation of each Bank to make its Commitment available
shall be terminated, whereupon the Commitments shall be
reduced to zero forthwith; and/or
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(b) the Loan, all or any outstanding Telekabel Notes, and all
interest and commitment commission accrued and all other sums
payable under this Agreement and/or all or any of the
Telekabel Notes have become immediately due and payable or
have become due and payable on demand, whereupon the same
shall, immediately or in accordance with the terms of such
notice, become so due and payable; and/or
(c) the Security Documents (or any of them) have become enforceable whereupon
the same shall be enforceable.
On or at any time after the making of any such declaration, the Agent
shall be entitled, to the exclusion of the Borrowers (and without
prejudice to clause 5.6), to select the duration of each period for the
calculation of interest in relation to any outstanding Drawings or
other sums payable under this Agreement provided that the Agent agrees
that, without prejudice to any of its other rights under this
Agreement, it shall not accelerate the due date of any sums payable by
Telekabel Wien until 28 days after the date that the Agent has given
notice to Telekabel Wien that a Default has occurred unless at such
time (i) Telekabel Wien has breached any of its obligations under this
Agreement or (ii) an Event of Default has otherwise occurred in
relation to Telekabel Wien, in which case such 28 day grace period (or
any unexpired part thereof) shall not apply.
13.3 Demand basis
If, pursuant to clause 13.2(b), the Agent declares the Loan and/or the
outstanding principal amount of all or any of the Telekabel Notes to be
due and payable on demand then the Agent may (and, if so instructed by
the Majority Banks, shall) at any time by written notice to the
Borrowers (a) call for repayment of all or any of the Drawings and/or
the outstanding principal amount of all or any of the Telekabel Notes
on such date as may be specified in such notice whereupon the relevant
Drawings and/or the outstanding principal amount of the relevant
Telekabel Notes shall become due and payable on the date so specified
together with all interest and commitment commission accrued and all
other sums payable under this Agreement and/or the relevant Telekabel
Notes or (b) withdraw such declaration with effect from the date
specified in such notice.
Indemnities
14.1 Miscellaneous indemnities
UPCF shall on demand indemnify each Finance Party without prejudice to
any of their other rights under this Agreement and the Transaction
Documents, against any loss (including loss of Margin) or expense which
such Finance Party shall certify as sustained or incurred by it as a
consequence of:
(a) any default in payment by any Obligor of any sum under any Finance
Documents when due;
(b) the occurrence of any other Event of Default;
(c) any repayment or prepayment of the Drawings or part thereof being made
otherwise than on an Interest Payment Date relating thereto;
(d) any Drawing not being made or issued for any reason (excluding any default
by any relevant Finance Party) after a Drawdown Notice has been given;
including, in any such case, but not limited to, any loss or expense
sustained or incurred by such Finance Party in maintaining or funding
all or any part of its Contribution or in liquidating or re-employing
deposits from third parties acquired or contracted for to fund all or
any part of its Contribution or any other amount owing to such Finance
Party.
14.2 Currency of account: currency indemnity
No payment by any Obligor under this Agreement which is made in a
currency other than the currency ("Contractual Currency") in which such
payment is required to be made pursuant to this Agreement shall
discharge the obligation in respect of which it is made except to the
extent of the net proceeds in the Contractual Currency received by the
Agent or the Security Agent as the case may be upon the sale of the
currency so received, after taking into account any premium and costs
of exchange in connection with such sale. For the avoidance of doubt,
the Secured Parties shall not be obliged to accept any such payment in
a currency other than the Contractual Currency nor shall the Secured
Parties be liable to any Obligor for any loss or alleged loss arising
from fluctuations in exchange rates between the date on which such
payment is so received by the Agent or the Security Agent as the case
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may be and the date on which the Agent or the Security Agent as the
case may be effects such sale, as to which the Agent or the Security
Agent as the case may be shall (as against the relevant Obligor) have
an absolute discretion but shall consult with UPCF. If any sum due from
any Obligor under this Agreement or any order or judgment given or made
in relation hereto is required to be converted from the Contractual
Currency or the currency in which the same is payable under such order
or judgment (the "first currency") into another currency (the "second
currency") for the purpose of (a) making or filing a claim or proof
against the relevant Obligor, (b) obtaining an order or judgment in any
court or other tribunal or (c) enforcing any order or judgment given or
made in relation to this Agreement, the relevant Obligor shall
indemnify and hold harmless the Secured Parties from and against any
loss suffered as a result of any difference between (i) the rate of
exchange used for such purpose to convert the sum in question from the
first currency into the second currency and (ii) the rate or rates of
exchange at which such Secured Party may in the ordinary course of
business purchase the first currency with the second currency upon
receipt of a sum paid to it in satisfaction, in whole or in part, of
any such order, judgment, claim or proof. Any amount due from any
Obligor under the indemnity contained in this clause 14.2 shall be due
as a separate debt and shall not be affected by judgment being obtained
for any other sums due under or in respect of this Agreement and the
term "rate of exchange" includes any premium and costs of exchange
payable in connection with the purchase of the first currency with the
second currency.
14.3 Environmental indemnity
Each Borrower agrees to indemnify on demand each Secured Party, and
their respective officers, employees and agents (together the
"Indemnified Parties") in respect of which each Secured Party holds
this indemnity on trust, without prejudice to any of their other rights
under this Agreement, against any loss, liability, action, claim,
demand, cost, expense, fine or other outgoing whatsoever whether in
contract, tort, delict or otherwise and whether arising at common law,
in equity or by statute which the relevant Indemnified Party shall
certify as sustained or incurred by it at any time as a consequence of,
or relating to, or arising directly or indirectly out of, any
Environmental Claims made or asserted against such Indemnified Party
which would not have arisen if this Agreement had not been executed and
which was not caused by the negligence or wilful default of the
relevant Indemnified Party.
14.4 ESGB reserve requirements
Each Borrower shall on demand indemnify each Bank against any cost or
loss suffered by it as a result of complying with the European Central
Bank's reserve requirements to the extent such requirements relate
solely to its participation in the Facilities and are not recoverable
by such Bank under clause 15.2.
Unlawfulness and increased costs; mitigation
15.1 Unlawfulness
If it is or becomes contrary to any law or regulation for any Bank to
contribute to Drawings or to maintain its Commitment or fund its
Contribution, such Bank shall promptly, through the Agent, notify the
relevant Borrower whereupon (a) such Bank's Commitment under the
Facilities shall be reduced to zero and (b) the Borrowers shall be
obliged to prepay the Contribution of such Bank either (A) forthwith,
if such unlawfulness has immediate or retrospective effect, or (B) on
future specified dates falling on or before the latest date permitted
by the relevant law or regulation so as to minimise any loss or expense
incurred by the relevant Bank liquidating or re-employing deposits from
third parties acquired or contracted to fund all or any part of its
Contribution. Any prepayment pursuant to this clause 15.1 shall be made
together with all amounts referred to in clause 6.7.
15.2 Increased costs
If the result of any change in, or change in the interpretation or
application or the introduction of (in each case taking effect after
the date of this Agreement) any law or any regulation, request or
requirement (whether or not having the force of law, but, if not having
the force of law, with which the relevant Bank or, as the case may be,
its holding company habitually complies), including (without
limitation) those relating to Taxation, capital adequacy, liquidity,
reserve assets, cash ratio deposits and special deposits, is to:
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(a) subject any Bank to Taxes or change the basis of Taxation of
any Bank with respect to any payment under this Agreement
(other than Taxes or Taxation on the overall net income,
profits or gains of such Bank); and/or
(b) increase the cost to, or impose an additional cost on, any
Bank or its holding company in making or keeping available all
or part of such Bank's Commitment or maintaining or funding
all or part of such Bank's Contribution; and/or
(c) reduce the amount payable or the effective return to any Bank under this
Agreement; and/or
(d) reduce any Bank's or its holding company's rate of return on
its overall capital by reason of a change in the manner in
which it is required to allocate capital resources to such
Bank's obligations under this Agreement; and/or
(e) require any Bank or its holding company to make a payment or
forgo a return calculated by reference to or on any amount
received or receivable by such Bank under this Agreement;
and/or
(f) require any Bank or its holding company to incur or sustain a
loss (including a loss of future potential profits) by reason
of being obliged to deduct all or part of such Bank's
Commitment or Contribution from its capital for regulatory
purposes,
then and in each such case (but subject to clause 15.3):
(i) such Bank shall notify the Borrowers through the Agent in
writing of such event promptly upon its becoming aware of the
same; and
(ii) the Borrowers shall on demand, made at any time whether or not
such Bank's Contribution has been repaid, pay to the Agent for
the account of such Bank the amount which such Bank specifies
(in a certificate setting forth the basis of the computation
of such amount but not including any matters which such Bank
or its holding company regards as confidential) is required to
compensate on an after-tax basis such Bank and/or its holding
company for such liability to Taxes, increased or additional
cost, reduction, payment, forgone return or loss.
For the purposes of this clause 15.2 and clause 15.4 "holding company"
means, in relation to a Bank, the company or entity (if any) within the
consolidated supervision of which such Bank is included.
15.3 Exceptions
Nothing in clause 15.2 shall entitle any Bank to receive any amount in
respect of compensation for any such liability to Taxes, increased or
additional cost, reduction, payment, forgone return or loss to the
extent that the same:
(a) is taken into account in calculating the Additional Cost; or
(b) is the subject of an additional payment under clause 8.5; or
(c) arises as a consequence of (or of any law or regulation
implementing) (i) the proposals for international convergence
of capital measurement and capital standards published by the
Basle Committee on Banking Regulations and Supervisory
Practices in July 1988 and/or (ii) any applicable directive of
the European Union (in each case) unless it results from any
change in, or in the interpretation or application of; such
proposals or any such applicable directive (or any law or
regulation implementing the same) occurring after the date
hereof; or
(d) arises as a result of a breach by such Bank of any regulation,
request or requirement (which either (i) is in existence at
the date of this Agreement or (ii) which comes into effect
after the date of this Agreement and with which such Bank
would have complied if such regulation, request or requirement
was in effect on the date of this Agreement) of any applicable
central bank or other fiscal, monetary or other authority
(whether or not having the force of law).
For the purposes of clause 15.3(c) the term "applicable directive"
means (exclusively) each of the Own Funds Directive (89/299/EEC of 17th
April 1989) and the Solvency Ratio Directive (89/647/EEC of 18th
December 1989).
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15.4 Mitigation
If circumstances arise which would or would upon the giving of notice,
result in:
(a) the application of clause 5.9 in relation to any Bank;
(b) any Obligor being required to make an increased payment to any Bank pursuant
to clause 8.5;
(c) the reduction of any Bank's Commitment to zero or the
Borrowers being required to prepay any Bank's Contribution
pursuant to clause 15.1; or
(d) any Borrower being required to make a payment to any Bank to
compensate such Bank or its holding company for a liability to
Taxes, increased or additional cost, reduction, payment,
forgone return or loss pursuant to clause 15.2(ii);
then, without in any way limiting, reducing or otherwise qualifying the
obligations of the Borrowers under clause 8 and this clause 15, such
Bank shall, in consultation with the Agent, endeavour to take such
reasonable steps (and/or, in the case of clause 15.2(ii) and where the
increased or additional cost, reduction, payment, forgone return or
loss is that of its holding company, endeavour to procure that its
holding company takes such reasonable steps) as are open to it (or, as
the case may be, its holding company) to mitigate or remove such
circumstances (including (in the case of such Bank) the transfer of its
rights and obligations under this Agreement to another bank or
financial institution acceptable to the Borrower) unless the taking of
such steps might (in the reasonable opinion of such Bank) be
prejudicial to such Bank (or, as the case may be, its holding company)
or be in conflict with such Bank's (or, as the case may be, its holding
company's) general banking policies or involve such Bank (or, as the
case may be, its holding company) in any material expense or any
material increased administrative burden.
15.5 Replacement of Banks
If at any time, any Bank becomes a Non-Funding Bank then UPCF may, on
10 Banking Days' prior written notice to the Agent and such Bank,
replace such Bank by causing such Bank to (and such Bank shall) assign
and transfer all of its rights and obligations under this Agreement to
a Bank or other entity selected by UPCF and acceptable to the Agent for
a purchase price equal to such Bank's Contribution and all accrued
interest, fees and other amounts payable to it under this Agreement and
the Telekabel Notes provided that:
(a) UPCF shall have no right to replace the Agent;
(b) neither the Agent nor any Bank shall have any obligation to
any Borrower to find a replacement Bank or other such entity;
(c) in no event shall the Bank hereby replaced be required to pay
or surrender to such replacement Bank or other entity any of
the fees received by such Bank hereby replaced pursuant to
this Agreement; and
(d) UPCF's right to replace a Non-Funding Bank is, and shall be,
in addition to and not in lieu of all other rights and
remedies available to the Borrowers against such Non-Funding
Bank under this Agreement, at law, in equity or by statute.
For the purposes of this clause 15.5:
"Non-Funding Bank" means any Bank:
(a) to whom any Borrower is obliged to pay any sum pursuant to
clause 15.2 or 8.5; or
(b) in respect of which it becomes contrary to any law or
regulation for it to contribute to Drawings or to maintain its
Commitment or fund its Contribution pursuant to clause 15.1.
Set-off and pro rata payments
16.1 Set-off
Each Obligor authorises each Finance Party at any time whilst an Event
of Default is subsisting to apply any credit balance to which such
Obligor is then entitled on any account of such Obligor with such Bank
at any of its branches in or towards satisfaction of any sum then due
and payable from such Obligor to such Finance Party under this
Agreement. For this purpose each Finance Party is authorised to
purchase with the moneys standing to the credit of such account such
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other currencies as may be necessary to effect such application. No
Finance Party shall be obliged to exercise any right given to it by
this clause 16.1. Each Finance Party shall notify the Agent and the
relevant Obligor (giving full details) forthwith upon the exercise or
purported exercise of any right of set-off and the Agent shall inform
the other Finance Parties.
16.2 Pro rata payments
(a) If at any time any Finance Party receives or recovers any amount owing to
it by any Obligor under this Agreement by direct payment, set-off or in any
manner other than by payment through the Agent pursuant to clause 8.1 or
8.10 (not being a payment received, in the case of a Bank, from a
Transferee in such Bank's Contribution or any other payment of an amount
due to the Recovering Bank for its sole account pursuant to clauses 6.5, 7,
8.5, 14.1, 14.2, 15.1 or 15.2) (the "Recovering Bank"), the Recovering Bank
shall, within two Banking Days of such receipt or recovery (a "Relevant
Receipt") notify the Agent of the amount of the Relevant Receipt. If the
Relevant Receipt exceeds the amount which the Recovering Bank would have
received if the Relevant Receipt had been received by the Agent and
distributed pursuant to clause 8.1 or 8.10 (as the case may be) then:
(i) within two Banking Days of demand by the Agent, the
Recovering Bank shall pay to the Agent an amount
equal (or equivalent) to the excess;
(ii) the Agent shall treat the excess amount so paid by
the Recovering Bank as if it were a payment made by
the relevant Obligor and shall distribute the same to
the Finance Parties (other than the Recovering Bank)
in accordance with clause 8.10; and
(iii) as between the relevant Obligor and the Recovering
Bank the excess amount so re-distributed shall be
treated as not having been paid but the obligations
of the relevant Obligor to the other Finance Parties
shall, to the extent of the amount so re-distributed
to them, be treated as discharged.
(b) If any part of the Relevant Receipt subsequently has to be
wholly or partly refunded by the Recovering Bank (whether to a
liquidator or otherwise) each Finance Party to which any part
of such Relevant Receipt was so re-distributed shall on
request from the Recovering Bank repay to the Recovering Bank
such Finance Party's pro rata share of the amount which has to
be refunded by the Recovering Bank.
(c) Each Finance Party shall on request supply to the Agent such
information as the Agent may from time to time request for the
purpose of this clause 16.2.
(d) Notwithstanding the foregoing provisions of this clause 16.2
no Recovering Bank shall be obliged to share any Relevant
Receipt which it receives or recovers pursuant to legal
proceedings taken by it to recover any sums owing to it under
this Agreement with any other party which has a legal right
to, but does not, either join in such proceedings or commence
and diligently pursue separate proceedings to enforce its
rights in the same or another court (unless the proceedings
instituted by the Recovering Bank are instituted by it without
prior notice having been given to such party through the
Agent).
16.3 No release
For the avoidance of doubt it is hereby declared that failure by any
Recovering Bank to comply with the provisions of clause 16.2 shall not
release any other Recovering Bank from any of its obligations or
liabilities under clause 16.2.
16.4 No charge
The provisions of this clause 16 shall not, and shall not be construed
so as to, constitute a charge by a Finance Party over all or any part
of a sum received or recovered by it in the circumstances mentioned in
clause 16.2.
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Assignment substitution and lending offices
17.1 Benefit and burden
This Agreement shall be binding upon, and ensure for the benefit of;
the Finance Parties and the Obligors and their respective successors
and permitted assigns.
17.2 No assignment by Obligors
None of the Obligors may assign or otherwise transfer any of its rights
or obligations under this Agreement other than pursuant to a merger in
accordance with clause 11.2(b).
17.3 Assignment by Banks
Each Bank (an "Assignor Bank") may assign all or any part (being, in
the case of part, at least Euro 5,000,000 (or Euro 2,500,000 in the
case of an assignment to another Bank) and an integral multiple of
Euro 1,000,000) of its rights to a Qualifying Bank (an "Assignee")
with the prior consent in writing of UPCF, such consent not to be
unreasonably withheld or delayed, other than in the case of an
assignment to another Bank or Subsidiary or Holding Company of the
Assignor Bank in which event the consent of UPCF shall not be required.
The Assignor Bank shall promptly notify the Borrowers and the Agent of
any such assignment.
17.4 Transfer
Each Bank (a "Transferor Bank") may transfer all or any part (being, in
the case of part, at least Euro 5,000,000 (or Euro 2,500,000 in the
case of a transfer to another Bank) and an integral multiple of
Euro 1,000,000) of its rights, benefits and/or obligations under this
Agreement (including, for the avoidance of doubt, any outstanding
Telekabel Notes) to a Qualifying Bank (a "Transferee") with the prior
consent in writing of UPCF (acting on behalf of itself and each
Obligor), such consent not to be unreasonably withheld or delayed,
other than in the case of a transfer to another Bank or a Subsidiary or
Holding Company of the Transferor Bank, in which event the consent of
UPCF shall not be required. Any such transfer shall be effected upon
not less than 5 Banking Days' prior notice by delivery to the Agent of
a duly completed Transfer Certificate duly executed by the Transferor
Bank and the Transferee. On the Effective Date (as specified and
defined in a Transfer Certificate so executed and delivered), to the
extent that the Commitment and Contribution of the Transferor Bank are
expressed in a Transfer Certificate to be the subject of the transfer
in favour of the Transferee effected pursuant to this clause 17.4, by
virtue of the counter-signature of the Transfer Certificate by the
Agent (for itself and the other parties to this Agreement and the
Security Deed):
(a) to the extent that in such Transfer Certificate the Transferor Bank seeks
to transfer such obligations and rights hereunder the existing parties to
this Agreement and the Security Deed and the Transferor Bank shall be
released from their respective obligations towards one another, other than
the obligations outstanding from the Obligors to the Transferor Banks under
this Agreement and the Security Deed ("discharged obligations") and their
respective rights against one another, other than the outstanding rights of
the Transferor Bank against the Obligor, under this Agreement and the
Security Deed ("discharged rights") shall be cancelled and the rights of
the Transferor Bank against the Obligors shall be assigned to the
Transferee party to the relevant transfer certificate (the "assigned
rights");
(b) the Transferee party to the relevant Transfer Certificate and the existing
parties to this Agreement and the Security Deed (other than such Transferor
Bank) shall assume obligations towards each other which differ from the
discharged obligations only insofar as they are owed to or assumed by such
Transferee instead of to or by such Transferor Bank as a result of such
transfer; and
(c) the Transferee party to the relevant Transfer Certificate and the existing
parties to this Agreement and the Security Deed (other than such Transferor
Bank) shall acquire rights against each other which differ from the
discharged rights and the assigned rights only insofar as they are
exercisable by or against such Transferee instead of by or against such
Transferor Bank as a result of such transfer;
and, on such Effective Date, the Transferee shall pay to the Agent for
its own account a fee of Euro 1,500 unless such Effective Date falls
before the date falling three months after the date of closing of
general syndication and both the Transferor Bank and the Transferee
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Bank were Banks on the close of general syndication. The Agent shall
promptly notify the Borrowers of the receipt by it of any Transfer
Certificate and shall promptly deliver a copy of such Transfer
Certificate to the Borrower.
17.5 Reliance on Transfer Certificate
The Finance Parties and the Obligors shall be fully entitled to rely on
any Transfer Certificate delivered to the Agent in accordance with the
foregoing provisions of this clause 17 which is complete and regular on
its face as regards its contents and purportedly signed on behalf of
the relevant Transferor Bank and the Transferee and none of the Finance
Parties or the Obligors shall have any liability or responsibility to
any party as a consequence of placing reliance on and acting in
accordance with any such Transfer Certificate if it proves to be the
case that the same was not authentic or duly authorised.
17.6 Authorisation of Agent
Each party to this Agreement irrevocably authorises the Agent to
counter-sign each Transfer Certificate on its behalf for the purposes
of clause 17.3 or 17.4 without any further consent of, or consultation
with, any such party except, in the case of the Borrower, the consent
required pursuant to clause 17.3 or 17.4.
17.7 Construction of certain references
If any Bank assigns all or any part of its rights or transfers all or
any part of its rights, benefits and obligations as provided in clause
17.3 or 17.4 all relevant references in this Agreement and the Security
Deed to such Bank shall thereafter be construed as a reference to such
Bank and/or its Transferee to the extent of their respective interests.
17.8 Lending offices
Each Bank shall lend through its office at the address specified in
part A of schedule 1 or, as the case may be, in any relevant Transfer
Certificate or through any other office of such Bank selected from time
to time by such Bank through which such Bank wishes to lend for the
purposes of this Agreement, Provided that no such change of lending
office may take place if it would involve any Obligor having to pay any
amount under clause 15.2 with respect to its obligations under this
Agreement. If the office through which a Bank is lending is changed
pursuant to this clause 17.8, such Bank shall notify the Agent promptly
of such change.
17.9 Disclosure of information
Subject to such person first executing a confidentiality undertaking in
a form acceptable to UPCF, acting reasonably, any Bank may disclose to
a prospective transferee or to any other person who may propose
entering into contractual relations with such Bank in relation to this
Agreement such information about the Restricted Group as such Bank
shall consider appropriate acting reasonably.
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Joint Arrangers, Agent, Security Agent and Reference Banks
18.1 Appointment of Agent
Each Bank irrevocably appoints the Agent as its agent for the purposes
of this Agreement and irrevocably authorises the Agent in such
capacity:
(a) to execute all documents as may be approved by the Majority Banks for
execution by the Agent; and
(b) (whether or not by or through employees or agents) to take such action on
such Bank's behalf and to exercise such rights, remedies, powers and
discretions as are specifically delegated to the Agent by this Agreement
or, (as the case may be) the Security Documents, together with such powers
and discretions as are reasonably incidental thereto (but subject to any
restrictions or limitations specified in this Agreement). None of the
Agent, or the Joint Arrangers or the Security Agent, shall, however, have
any duties, obligations or liabilities (whether fiduciary or otherwise) to
the Banks beyond those expressly stated in this Agreement and/or the
Security Documents.
Notwithstanding that the Agent and the Security Agent may from time to
time be the same entity, the Agent and the Security Agent have entered
into this Agreement in their separate capacities as agent for the Banks
under and pursuant to this Agreement and as Security Agent for the
Beneficiaries (as defined in the Security Deed) to hold the security
created by the Security Documents on the terms set out in the Security
Deed. However, where this Agreement provides for the Agent to
communicate with or provide instructions to the Security Agent, while
the Agent and the Security Agent are the same entity, it will not be
necessary for there to be any such formal communications or
instructions notwithstanding that this Agreement provides in certain
cases for the same to be in writing.
18.2 Agent's actions
Any action taken by the Agent under or in relation to this Agreement
with requisite authority, or on the basis of appropriate instructions,
received from the Majority Banks (or as otherwise duly authorised)
shall be binding on all the Banks.
18.3 Agent's duties
The Agent shall:
(a) promptly notify each Bank of the contents of each notice,
certificate or other document received by the Agent from any
Borrower or any other Obligor under or pursuant to this
Agreement;
(b) consult with the Banks as to whether and, if so, how a
discretion vested in the Agent is, either in any particular
instance or generally, to be exercised but so that this shall
not prevent the Agent in exceptional circumstances where time
does not permit such consultation and urgent action is
required, from exercising its rights and powers, or from
instructing the Security Agent to exercise its rights and
powers, to preserve the security constituted by the Security
Documents so long as the Agent promptly notifies the Banks
subsequently of such exercise; and
(c) (subject to the other provisions of this clause 18) take such
action or, as the case may be, refrain from taking such action
with respect to the exercise of any of its rights, remedies,
powers and discretions as agent or security agent, as the
Majority Banks may reasonably direct.
18.4 Agent's rights
The Agent may:
(a) in the exercise of any right, remedy, power or discretion in
relation to any matter, or in any context, not expressly
provided for by this Agreement, act or, as the case may be,
refrain from acting in accordance with the instructions of the
Majority Banks, and shall be fully protected in so doing;
(b) unless and until it shall have received directions from the
Majority Banks, take such action, or refrain from taking such
action in respect of a Default of which the Agent has actual
knowledge as it shall deem advisable in the best interests of
the Banks (but shall not be obliged to do so);
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(c) refrain from acting in accordance with any instructions of the
Majority Banks to institute, or to instruct the Security Agent
to institute any legal proceedings arising out of or in
connection with this Agreement and/or the Security Documents
until it and/or the Security Agent, has been indemnified
and/or secured to its satisfaction against any and all costs,
expenses or liabilities (including legal fees) which it and/or
the Security Agent would or might incur as a result;
(d) deem and treat (i) each Bank as the person entitled to the
benefit of the Contribution of such Bank for all purposes of
this Agreement and the Security Documents unless and until a
Transfer Certificate shall have been filed with the Agent and
shall have become effective, and (ii) the office set opposite
the name of each Bank in part A of schedule 1 or, as the case
may be, in any relevant Transfer Certificate as such Bank's
lending office unless and until a written notice of change of
lending office shall have been received by the Agent; and the
Agent may act upon any such notice unless and until the same
is superseded by a further such notice;
(e) rely as to matters of fact which might reasonably be expected
to be within the knowledge of any Obligor upon a certificate
signed by any director of the relevant Obligor on behalf of
such Obligor; and
(f) refrain from doing anything which would, or might in its
opinion, be contrary to any law or regulation of any
jurisdiction and may do anything which is in its opinion
necessary or desirable to comply with any such law or
regulation.
18.5 No liability of Joint Arrangers, Security Agent and Agent
None of the Joint Arrangers, the Security Agent, the Agent or any of
their respective employees and agents shall:
(a) be obliged to request any certificate or opinion under clause
11.1(a) or any provision of the Security Documents or to make
any enquiry as to the use of the proceeds of the Facilities
unless (in the case of the Agent) so required in writing by
any Bank, in which case the Agent shall promptly make the
appropriate request of the relevant Obligor; or
(b) be obliged to make any enquiry as to any breach or default by
any Obligor in the performance or observance of any of the
provisions of this Agreement or as to the existence of a
Default unless (in the case of the Agent) the Agent has actual
knowledge thereof or has been notified in writing thereof by a
Bank, in which case the Agent shall promptly notify the Banks
of the relevant event or circumstance; or
(c) be obliged to enquire whether or not any representation or
warranty made by any Obligor pursuant to this Agreement or any
of the Security Documents is true; or
(d) be obliged to do anything (including, without limitation,
disclosing any document or information) which would, or might
in its opinion, be contrary to any law or regulation or be a
breach of any duty of confidentiality or otherwise be
actionable or render it liable to any person; or
(e) be obliged to account to any Bank for any sum or the profit
element of any sum received by it for its own account; or
(f) be obliged to institute any legal proceedings arising out of
or in connection with, or otherwise take steps to enforce,
this Agreement and/or the Security Documents other than on the
instructions of the Majority Banks; or
(g) be liable to any Bank for any action taken or omitted under or
in connection with this Agreement and/or the Security
Documents or the Loan unless caused by its gross negligence or
wilful misconduct.
For the purposes of this clause 18 neither the Agent, nor the Security
Agent shall be treated as having actual knowledge of any matter of
which the corporate finance or any other division outside the agency or
loan administration department of the person for the time being acting
as the Agent or the Security Agent, as the case may be, may become
aware in the context of corporate finance, advisory or lending
activities from time to time undertaken by the Agent or the Security
Agent, as the case may be, for the Borrowers or any of its Subsidiaries
or Associated Companies or any other person which may be a trade
competitor of any of the Obligors or may otherwise have commercial
interests similar to those of any of the Obligors.
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18.6 Non-reliance on Joint Arrangers, Security Agent or Agent
Each Bank acknowledges, by virtue of its execution of this Agreement
or, as the case may be, a Transfer Certificate, that it has not relied
on any statement, opinion, forecast or other representation made by the
Joint Arrangers, the Security Agent or the Agent to induce it to enter
into this Agreement and that it has made and will continue to make,
without reliance on the Agent, the Security Agent or the Joint
Arrangers and based on such documents as it considers appropriate, its
own appraisal of the creditworthiness of each Borrower and its
Subsidiaries and its own independent investigation of the financial
condition, prospects and affairs of each Borrower and its Subsidiaries
in connection with the making and continuation of the Loan under this
Agreement. None of the Joint Arrangers, the Security Agent or the Agent
shall have any duty or responsibility, either initially or on a
continuing basis, to provide any Bank with any credit or other
information with respect to the Obligors whether coming into its
possession before the making of any Drawing or at any time or times
thereafter, other than (in the case of the Agent) as provided in clause
18.3(a).
18.7 No Responsibility on Joint Arrangers, Security Agent or Agent for any
Obligor's performance
None of the Joint Arrangers, the Security Agent or the Agent shall have
any responsibility or liability to any Bank:
(a) on account of the failure of any Obligor to perform its obligations under
this Agreement or any Security Document; or
(b) for the financial condition of any Obligor; or
(c) for the completeness or accuracy of any statements, representations or
warranties in this Agreement, any Security Document or the Information
Memorandum or any document delivered under this Agreement or any Security
Document; or
(d) for the execution, effectiveness, adequacy, genuineness, validity,
enforceability or admissibility in evidence of this Agreement or any of the
Security Documents or of any certificate, report or other document executed
or delivered under this Agreement or any of the Security Documents; or
(e) otherwise in connection with the Facilities or its negotiation or for
acting (or, as the case may be, refraining from acting) in accordance with
the instructions of the Majority Banks.
18.8 Reliance on documents and professional advice
The Joint Arrangers, the Security Agent and the Agent shall be entitled
to rely on any communication, instrument or document believed by it to
be genuine and correct and to have been signed or sent by the proper
person and shall be entitled to rely as to legal or other professional
matters on opinions and statements of any legal or other professional
advisers selected or approved by it (including those in the Agent's
employment).
18.9 Other dealings
The Joint Arrangers, the Security Agent and the Agent may, without any
liability to account to the Banks, accept deposits from, lend money to,
and generally engage in any kind of banking or other business with, and
provide advisory or other services to, the Borrowers or any of its
Subsidiaries or Associated Companies or any of the Banks as if it were
not a Joint Arranger, the Security Agent or the Agent, as the case may
be.
18.10 Rights of Agent as Bank: no partnership
With respect to its own Commitment and Contribution (if any) the Agent
shall have the same rights and powers under this Agreement and the
Security Documents as any other Bank and may exercise the same as
though it were not performing the duties and functions delegated to it
under this Agreement and/or the Security Documents and the term "Banks"
shall, unless the context clearly otherwise indicates, include the
Agent in its individual capacity as a Bank. This Agreement shall not
and shall not be construed so as to constitute a partnership between
the parties or any of them.
71
<PAGE>
18.11 Amendments: waivers
(a) Subject to clause 18.11(b), the Agent may, with the consent of the Majority
Banks (or if and to the extent expressly authorised by the other provisions
of this Agreement) and, if so instructed by the Majority Banks, shall (i)
agree amendments or modifications to this Agreement with the Obligors
and/or (ii) vary or waive breaches of; or defaults under, or otherwise
excuse performance of; any provision of this Agreement by any Obligor. Any
such action so authorised and effected by the Agent shall be documented in
such manner as the Agent shall (with the approval of the Majority Banks)
determine, shall be promptly notified to the Banks by the Agent and
(without prejudice to the generality of clause 18.2) shall be binding on
all the Banks.
(b) Except with the prior written consent of all the Banks, the Agent shall not
have authority on behalf of the Banks (A) to agree with any Obligor any
amendment or modification to this Agreement or to grant waivers in respect
of breaches or defaults or to vary or excuse performance of or under this
Agreement by any Obligor, if the effect of such amendment, modification,
waiver, variation or excuse would be to (i) reduce the Margin, (ii)
postpone the due date or reduce the amount of any reduction in
availability, any payment of principal, interest, commitment commission or
other amount payable by any Obligor under this Agreement or any of the
Security Documents, (iii) change the currency in which any amount is
payable by any Obligor under this Agreement or any of the Security
Documents, (iv) increase any Bank's Commitment, (v) change the definition
of "Majority Banks" in clause 1.2, (vi) change any provision of this
Agreement which expressly or impliedly requires the approval or consent of
all the Banks such that the relevant approval or consent may be given
otherwise than with the sanction of all the Banks, (vii) change clause 4.1,
(viii) change the order of distribution under clause 8.10, (ix) change
clause 16.2, (x) change this clause 18.11 or (B) release any asset from the
security created by any of the Security Documents unless such release is to
permit the disposal or other dealing with such asset in accordance with the
terms of this Agreement and any relevant Security Document or (C) release
any Guarantor from its obligations under any Guarantee to which it is a
party other than pursuant to a merger in accordance with clause 11.2(b).
(c) For the purposes of this clause 18.11 it is expressly agreed and
acknowledged that the execution of a Guarantor's Deed of Accession or any
deed or instrument pursuant to a further assurance provision in the
Security Documents shall not constitute an amendment or modification to, or
variation of, this Agreement or any of the Security Documents.
18.12 Reimbursement and indemnity by Banks
Each Bank shall reimburse each Joint Arranger and the Agent (rateably
in accordance with such Bank's Commitment or Contribution), to the
extent that such Joint Arranger or the Agent is not reimbursed by the
Obligors, for the costs, charges and expenses incurred by that Joint
Arranger or the Agent in connection with the negotiation, preparation
and execution of this Agreement and the Security Documents and/or in
contemplation of, or otherwise in connection with, the enforcement or
attempted enforcement of, or the preservation or attempted preservation
of any rights under, or in carrying out its duties under, this
Agreement and/or any of the Security Documents including (in each case)
the fees and expenses of legal or other professional advisers. Each
Bank shall on demand indemnify the Agent (rateably in accordance with
its Commitment or Contribution) against all liabilities, damages, costs
and claims whatsoever incurred by the Agent in connection with this
Agreement and the Security Documents or the performance of its duties
under this Agreement and the Security Documents or any action taken or
omitted by the Agent under this Agreement and/or any of the Security
Documents, unless such liabilities, damages, costs or claims arise from
the Agent's own gross negligence or wilful misconduct.
18.13 Retirement of Agent
(a) The Agent may retire from its appointment as Agent under this Agreement
having given to the Borrowers and each of the Banks not less than 30 days'
prior written notice of its intention to do so, provided that no such
retirement shall take effect unless there has been appointed by the Banks
as a successor agent:
(i) a Bank nominated by the Majority Banks with the
consent of the Borrowers (not to be unreasonably
withheld or delayed) or, failing such a nomination,
(ii) any reputable and experienced bank or financial
institution with offices in London nominated by the
Agent with the consent of the Borrowers (not to be
unreasonably withheld or delayed).
72
<PAGE>
Any corporation into which the Agent may be merged or
converted or any corporation with which the Agent may be
consolidated or any corporation resulting from any merger,
conversion, amalgamation, consolidation or other
reorganisation to which the Agent shall be a party shall, to
the extent permitted by applicable law, be the successor Agent
under this Agreement without the execution or filing of any
document or any further act on the part of any of the parties
to this Agreement, save that notice of any such merger,
conversion, amalgamation, consolidation or other
reorganisation shall forthwith be given to UPCF and the Banks.
(b) Upon any such successor as aforesaid being appointed, the retiring Agent
shall be discharged from any further obligation under this Agreement (but
shall continue to have the benefit of this clause 18 in respect of any
action it has taken or refrained from taking prior to such discharge) and
its successor and each of the other parties to this Agreement shall have
the same rights and obligations among themselves as they would have had if
such successor had been a party to this Agreement in place of the retiring
Agent. The retiring Agent shall (at the reasonable expense of UPCF) provide
its successor with copies of such of its records as its successor
reasonably requires to carry out its functions under this Agreement.
18.14 Change of Reference Banks
If (a) the whole of the Contribution (if any) of any Reference Bank is
prepaid, (b) the Commitment (if any) of any Reference Bank is reduced
to zero in accordance with clause 6.5 or 15.1, (c) a Reference Bank
transfers the whole of its rights and obligations (if any) as a Bank
under this Agreement or (d) any Reference Bank ceases to provide
quotations to the Agent for the purposes of determining EURIBOR or
LIBOR (as the case may be), the Agent may, acting on the instructions
of the Majority Banks, terminate the appointment of such Reference Bank
and after consultation with the Borrowers appoint another Bank to
replace such Reference Bank.
18.15 Prompt distribution of proceeds
Moneys received by the Security Agent pursuant to the exercise of (or
otherwise by virtue of the existence of) any rights and powers under or
pursuant to any of the Security Documents shall be paid to the Agent
for distribution in accordance with the terms of the Security Deed and
shall be distributed by the Agent as soon as is practicable after the
relevant moneys are received by, or otherwise become available to, the
Agent save that (without prejudice to any other provision contained in
any of the Security Documents) the Agent (acting on the instructions of
the Majority Banks) may credit any moneys received by it to a suspense
account for so long and in such manner as the Agent may from time to
time determine with a view to preserving the rights of the Finance
Parties or any of them to prove for the whole of their respective
claims against any Obligor or any other person liable.
73
<PAGE>
Notices and other matters
19.1 Notices
Every notice, request, demand or other communication under this
Agreement shall:
(a) be in writing delivered personally or by first-class prepaid letter
(airmail if available) or telefax;
(b) be deemed to have been received, subject as otherwise provided in this
Agreement, in the case of a letter when delivered and, in the case of a
telefax, when a complete and legible copy is received by the addressee
(unless the date of despatch is not a business day in the country of the
addressee or the time of despatch of any telefax is after the close of
business in the country of the addressee in which case it shall be deemed
to have been received at the opening of business on the next such business
day); and
(c) be sent:
(i) to each Obligor at:
Fred Roeskestraat 123
PO Box 74763
1070 BT Amsterdam
Telefax: 00 31 20 578 9861
Attention: Managing Director of Treasury and General
Counsel
(ii) to the Agent and Security Trustee at:
Triton Court
14/18 Finsbury Square
London EC2A 1DB
Telefax: 0171 638 2551
Attention: Manager - Credit Administration
(iii) to the Joint Arrangers at:
Bank of America International Limited
New Broad Street House
35 New Broad Street
London EC2M 1SH
Telefax: 00 44 181 313 2140
Attention: Claire Godley
copy to:
Telefax: 0171 282 6810
Attention: Richard Woods
CIBC World Markets plc
Cottons Centre
Cottons Lane
London SE1 2QL
Telefax: 0171 234 6433
Attention: Supervisor, Banking Services
Citibank, N.A.
PO Box 2OO
Cottons Centre
Hays Lane
London SE1 2QT
Telefax: 00 44 171 500 2331
Attention: Graham Thrower
MeesPierson N.V.
Coolsingel 93,
3012 AE
Rotterdam
The Netherlands
Telefax: 0031 10 401 5906
Attention: Mr. Jan-Evert Post
74
<PAGE>
Paribas
3 rue d'Antin
75002 Paris
Telefax: 00 331 42 98 09 79
Attention: D. De Pailleret/L. Beghin/C. Strady
Telefax: 00 331 42 98 29 45
Attention: G. Sadorge
The Royal Bank of Scotland plc
138-142 Holborn
Waterhouse Square
London EC1N 2TH
Telefax: 0171 427 9920
Attention: Media and Telecommunications Team
Toronto Dominion Bank Europe Limited
Triton Court
14/18 Finsbury Square
London EC2A 2DB
Telefax: 0171 638 2551
Attention: Manager, Loans Agency
(iv) to each Bank
at its address or telefax number specified in part
A of schedule 1 or in any relevant Transfer
Certificate
or to such other address or telefax number as is notified by
the relevant party to the other parties to this Agreement.
19.2 Notices through the Agent
Every notice, request, demand or other communication under this
Agreement to be given by any Obligor to any other party shall be given
to the Agent for onward transmission as appropriate and to be given to
the Obligors (or any of them) shall (except as otherwise provided in
this Agreement) be given by the Agent.
19.3 No implied waivers remedies cumulative
No failure or delay on the part of the Finance Parties or any of them
to exercise any power, right or remedy under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise
by the Finance Parties or any of them of any power, right or remedy
preclude any other or further exercise thereof or the exercise of any
other power, right or remedy. The remedies provided in this Agreement
are cumulative and are not exclusive of any remedies provided by law.
19.4 English translations
All certificates, instruments and other documents to be delivered under
or supplied in connection with this Agreement (other than the Licences
and Principal Agreements referred to in schedule 3) shall be in the
English language or shall be accompanied by a certified English
translation upon which the Agent, the Joint Arrangers and the Banks
shall be entitled to rely.
19.5 Counterparts
This Agreement may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so
executed and delivered shall be an original, but all counterparts shall
together constitute one and the same instrument.
75
<PAGE>
19.6 No breach of Austrian Agreements
The Banks confirm, and authorise the Agent to confirm, that if they,
the Agent or the Security Agent become majority shareholders in CNA
following enforcement of the CNA Share Security they will not, and they
will not instruct the Agent or the Security Agent to, require CNA to
take any advice which would to their knowledge, after taking advice,
constitute a breach of the Austrian Agreements in their form at the
date of this Agreement if such action would also constitute a breach of
the Austrian Agreements in their form at the date on which such action
is taken. This confirmation, however, does not constitute (a) a waiver
of any rights the Banks, the Agent or the Security Agent may have under
the Austrian Agreements as such shareholders or (b) a guarantee of
CNA's obligations under the Austrian Agreements. The Banks do not have
authority to bind any third party which becomes a shareholder in CNA,
whether following enforcement of the CNA Share Security or otherwise,
but the Banks agree that if they, the Agent or the Security Agent
dispose of shares in CNA, upon enforcement of the CNA Share Security,
or as shareholders in CNA, following enforcement of the CNA Share
Security, otherwise than by means of a public offer, public sale or
public auction they will make such disposal on terms that the acquirer
gives confirmation in the same terms as this clause 19.6.
Governing law and Jurisdiction
20.1 Law
This Agreement shall be governed by English law.
20.2 Submission to jurisdiction
The parties to this Agreement agree for the benefit of the Finance
Parties that:
(a) if any party has any claim against any other arising out of or
in connection with this Agreement such claim shall (subject to
clause 20.2(c)) be referred to the High Court of Justice in
England, to the jurisdiction of which each of the parties
irrevocably submits;
(b) the jurisdiction of the High Court of Justice in England over
any such claim against the any Finance Party shall be an
exclusive jurisdiction and no courts outside England shall
have jurisdiction to hear or determine any such claim; and
(c) nothing in this clause 20.2 shall limit the right of the
Finance Party to refer any such claim against any Obligor to
any other court of competent jurisdiction outside England, to
the jurisdiction of which each Obligor hereby irrevocably
agrees to submit, nor shall the taking of proceedings by any
Finance Party before the courts in one or more jurisdictions
preclude the taking of proceedings in any other jurisdiction
whether concurrently or not.
20.3 Agent for service of process
Each Obligor irrevocably designates, appoints and empowers HRO
Registrars Limited at present of Heathcoat House, 20 Savile Row, London
W1X 1AE to receive for it and on its behalf service of process issued
out of the High Court of Justice in England in relation to any claim
arising out of or in connection with this Agreement.
IN WITNESS whereof the parties to this Agreement have caused this Agreement to
be duly executed on the date first above written.
76
<PAGE>
Schedule 1
Part A - The Banks and their Commitments
<TABLE>
<CAPTION>
- ------------------------------ --------------------------------------- -------------------- ==================
Name Address and telefax number Column 1 Facility A Column 2
Commitment Facility B
Euro Commitment
Euro
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
<S> <C> <C> <C>
Citibank, N.A. 2 Penns Way 96,750,000 32,250,000
Suite 200
Newcastle
DE 19720
USA
Telefax: 001 302 894 6144/39
Attention: Mark Eckeard
Linda Miller
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
MeesPierson N.V. Coolsingel 93, 96,750,000 32,250,000
3012AE
Rotterdam, The Netherlands
Telefax: 00 31 10 401 6118
Attention: Mr F.G. Schreuder/M.
Meijer
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
NB International Finance B.V. Parnassustoren 96,750,000 32,350,000
Locatellikade 1
PO Box 75215
1076 AZ Amsterdam
The Netherlands
Notices to:
Loans Services
26 Elmfield Road
Bromley
Kent BR1 1WA
Telefax: 0181 313 2140
Attention: Claire Godley
- ------------------------------ --------------------------------------- -------------------- ==================
<PAGE>
- ------------------------------ --------------------------------------- -------------------- ==================
Paribas 3 rue d'Antin 96,750,000 32,250,000
75002 Paris
Telefax: 00 331 42 98 09 79
Attention: D. De Paillerets/
L. Beghin/
C. Strady
copy to:
Telefax: 00 331 4298 2945
Attention: G. Sadorge
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
The Toronto-Dominion Bank Triton Court 96,750,000 32,250,000
14/18 Finsbury Square
London EC2A 1DB
Telefax: 0171 638 2551
Attention: Loans Administration
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
CIBC World Markets plc Cottons Centre 80,625,000 26,875,000
Cottons Lane
London SE1 2QL
Telefax: 0171 234 6433
Attention: Manager, Banking
Services Department
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
The Royal Bank of Scotland Corporate Banking Office 80,625,000 26,875,000
plc PO Box 450
5-10 Great Tower Street
London EC3P 3HX
Telefax: 0171 220 7370
Attention: Loans
Administration
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
Goldman Sachs Credit 85 Broad Street 37,500,000 12,500,000
Partners L.P. New York
NY 10004
USA
Notices to:
Goldman Sachs International
Peterborough Court
133 Fleet Street
London EC4A 2BB
Telefax: 0171 774 6337
Attention: Susan
Wolstenholme/
Emmanuel Delornie
Copy to:
Telefax: 0171 774 8598
Attention: Gillian Elwood
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
The Chase Manhattan Bank 125 London Wall 37,500,000 12,500,000
London EC2Y 5AJ
Notices to:
Chaseside
Bournemouth
BH7 7DB
Telefax: 01202 342020
Attention: Tina Holes
- ------------------------------ --------------------------------------- -------------------- ==================
- ------------------------------ --------------------------------------- -------------------- ==================
DLJ Capital Funding, Inc. 277 Park Avenue 30,000,000 10,000,000
9th Floor
New York
NY 10172
Telefax: 001 212 610 6031
Attention: Diane Albanese
Elizabeth Burnett
- ------------------------------ --------------------------------------- -------------------- ==================
<PAGE>
Part B - Original Guarantors
========================================= ------------------------------ ================================
Company Country of Incorporation Address
- ----------------------------------------- ------------------------------ ================================
Cable-Networks Austria Holding B.V. The Netherlands Frederik Roeskestraat 123
1076 EE Amsterdam
The Netherlands
- ----------------------------------------- ------------------------------ ================================
- ----------------------------------------- ------------------------------ ================================
Stipdon Investments B.V. The Netherlands Frederik Roestestraat 123
1076 EE Amsterdam
The Netherlands
- ----------------------------------------- ------------------------------ ================================
- ----------------------------------------- ------------------------------ ================================
Radio Public S.A. Belgium 140, avenue Chazaal
1030 Brussels, Belgium
- ----------------------------------------- ------------------------------
========================================= ------------------------------ ================================
UPC Facility B.V. The Netherlands Frederik Roestestraat 123
1076 EE Amsterdam
The Netherlands
========================================= ============================== ================================
TeleKabel Hungary N.V. The Netherlands Frederik Roestestraat 123
1076 EE Amsterdam
The Netherlands
========================================= ============================== ================================
<PAGE>
Part C - Borrowers
========================================= ------------------------------ ================================
Company Country of Incorporation Address
- ----------------------------------------- ------------------------------ ================================
UPC Facility B.V. The Netherlands Frederik Roeskestraat 123
1076 EE Amsterdam
The Netherlands
- ----------------------------------------- ------------------------------ ================================
- ----------------------------------------- ------------------------------ ================================
TeleKabel Wien G.m.b.H Austria Erlachgasse 116, 1100 Wien,
Austria
- ----------------------------------------- ------------------------------ ================================
- ----------------------------------------- ------------------------------ ================================
Janco Multicom A/S Norway Ensj0veien 7, 0655 Oslo Norway
- ----------------------------------------- ------------------------------ ================================
</TABLE>
<PAGE>
Schedule 2
Form of Drawdown Notice
To: The Toronto-Dominion Bank
Triton Court
14-18 Finsbury Square
London EC2A 1DB
Attention: Manager, Loans Agency
Agreement dated _______ 1999 (as from time to time amended, varied, extended,
restated, refinanced or replaced, the "Agreement")
We refer to the Agreement and hereby give you notice that [[if the Borrower is
UPCF or Janco only] we wish to draw down a [Revolving Drawing of ! on o for a
Revolving Period of ! months] a [Term Drawing of o on o [with an initial
Interest Period of o months] [if the Borrower is Telekabel Wien only] we wish to
issue a Telekabel Note in the nominal amount of o on o [for a Revolving Period
of o months] [with an initial Interest Period of o months]. The funds should be
credited to [name and number of account] with [details of bank in [principal
financial centre for the relevant Optional Currency]].
We confirm that:
1* so far as we are aware, no event or circumstance has occurred and is
continuing or will result from the making of such Drawing which
constitutes a Default; and
2* the representations and warranties contained in clauses 10.1 and 10.2
of the Agreement to be repeated in accordance with clause 10.4 of the
Agreement are true and correct as at the date of this notice as if made
with respect to the facts and circumstances existing at the date of
this notice.
(A) *In the case of a Revolving Drawing if the aggregate Euro
Amount of Revolving Drawings outstanding after such Revolving
Drawing would exceed the aggregate Euro Amount of Revolving
Drawings outstanding prior to that drawing (after taking into
account any Revolving Drawing due to be made or repaid on the
Drawdown Date of such Revolving Drawing;
[[If the Borrower is Telekabel Wien only] We enclose a Telekabel Note in respect
of the drawdown requested by this notice.]
UPCF confirms that Annualised Consolidated EBITDA in the most recently delivered
Quarterly Management Account was [ ].
UPCF confirms that the ratio of Senior Debt (including for these purposes, the
amount of the Drawing the subject of this notice) to Adjusted Annualised
Consolidated EBITDA as calculated from the most recently delivered Quarterly
Management Accounts delivered to the Agent under the Agreement was [ ].]
UPCF confirms that the ratio of Senior Debt (including for these purposes, the
amount of the Drawing the subject of this notice) to Annualised Consolidated
EBITDA as calculated from the most recently delivered Quarterly Management
Accounts delivered to the Agent under the Agreement was [ ].]
Words and expressions defined in the Agreement shall have the same meanings
where used in this notice.
For and on behalf of UPC Facility
B.V.
...................................................
For and on behalf of
[relevant Borrower if not UPC Facility B.V.]
...................................................
<PAGE>
Schedule 3
Part I
Documents and evidence required prior to the giving of the
Drawdown Notice in respect of the first Drawing
(a) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of UPCF, of the constitutive documents of each
Obligor amended as agreed between UPCF and the Agent.
(b) A copy, certified as a true copy by an Authorised Officer of UPCF of an
extract of the minutes of the Supervisory Board of Directors of
Telekabel Wien dated 28 May 1999 authorising a credit limit of ATS
2,500,000,000 and a copy of a letter from Telekabel Wien dated 21 July
1999 confirming that such authorised credit limit has not been
exceeded.
(c) A copy, certified as a true copy by an Authorised Officer of UPCF, of
each of (i) resolutions of the Board of Directors of each Obligor
(except Telekabel Wien) and UPC evidencing approval of this Agreement
and the Security Documents to which they are a party and authorising
their respective appropriate officers to execute and deliver this
Agreement and such Security Documents and to give all notices and take
all other action required by such Obligor or UPC thereunder and (ii)
an extract from the minutes of the Board of Supervisory Directors of
UPC approving the terms and conditions of this Agreement, and (iii) a
resolution of the Board of Supervisory Directors of TeleKabel Hungary
evidencing approval of this Agreement and the Security Documents to
which it is a party. In summary:
- -------------------------------- -----------------------------------------------
(i) Board resolution of UPC (vi) Board Resolution of TeleKabel Hungary
- -------------------------------- -----------------------------------------------
- -------------------------------- -----------------------------------------------
(ii) Extract of
Supervisory
Board minutes of
UP (vii) Supervisory Board Resolution of
TeleKabel Hungary
- -------------------------------- -----------------------------------------------
- -------------------------------- -----------------------------------------------
(iii) Board Resolution of CNA (viii) Board Resolution of UPCF
- -------------------------------- -----------------------------------------------
- -------------------------------- -----------------------------------------------
(iv) Board Resolution of Stipd (ix) Board Resolution of Radio Public
- -------------------------------- -----------------------------------------------
- -------------------------------- -----------------------------------------------
(v) Board resolution of Janco
- -------------------------------- -----------------------------------------------
(d) A resolution of the Board of Directors of Belmarken evidencing their
approval of the Sale and Purchase Agreement and the Security Documents
to which it is a party and authorising its appropriate officers to
execute and deliver the Sale and Purchase Agreement and such Security
Documents and to give all notices and take all other action required by
Belmarken.
(e) Specimen signatures, authenticated by an Authorised Officer of UPCF, of
the persons authorised in the resolutions referred to in paragraphs
(b), (c) and (d) above.
(f) An original power of attorney executed by Telekabel Wien.
(g) A resolution of the shareholders of each Obligor incorporated in the
Netherlands evidencing the approval of the shareholders of each such
Obligor of the Agreement and the Security Documents by approving the
board resolutions made by each such Obligor being:
(i) resolution of the shareholders of CNA;
(ii) resolution of the shareholders of TeleKabel Hungary;
(iii) resolution of the shareholders of UPCF; and
(iv) resolution of the shareholders of Stipdon.
(h) A resolution of the shareholders of Janco evidencing approval of the
shareholders of Janco to the terms of this Agreement and the
obligations of Janco thereunder.
(i) A resolution of the shareholders of Belmarken evidencing approval of
the shareholders of Belmarken to the terms of the Sale and Purchase
Agreement and the Security Documents to which it is a party and the
obligations of Belmarken thereunder.
(j) A copy, certified as a true copy by an Authorised Officer of UPCF, of
all consents, authorisations, licences and approvals required by each
Obligor and UPC to authorise, or required by each Obligor and UPC in
connection with, the execution, delivery, validity, enforceability and
admissibility in evidence of this Agreement and the Security Documents
to which they are a party and the performance by the relevant members
of the Restricted Group and UPC of their respective obligations under
this Agreement and the Security Documents.
(k) A copy, certified as a true copy by an Authorised Officer of UPCF, of a
letter from each Obligor's and UPC's agent for receipt of service of
process referred to this Agreement and in the Security Deed, accepting
its appointment.
(l) The Disclosure Letter.
(m) The proforma unaudited combined financial statements of the Restricted
Group and the audited consolidated financial statements of the UPC
Group for the financial year ended on 31 December 1998 referred to in
clause 10.1(f)(i) and the Quarterly Management Accounts referred to in
clause 10.1(f)(ii).
(n) A copy of the Management Base Case.
(o) Copies, certified by the Authorised Officer of UPCF to be true, complete and
up to date copies of:
(i) all updates and amendments to the Licences (in respect of the
Austrian Licences, the Belgian Licences and the Norwegian
Licences since 8 October 1997 and in respect of the Hungarian
Licences since 7 October 1998);
(ii) the Interconnect Agreements;
(iii) the Hungarian Agreement; and
(iv) the Austrian Agreements.
(p) A brokers letter relating to insurances.
(q) Executed copies of the Sale and Purchase Agreements referred to in
paragraphs (i) and (ii) of the definition of Sale and Purchase
Agreements including the notarial deed of transfer of shares in Stipdon
and UPC Slovakia Holding B.V.
(r) The release of the pledge of shares in Telekabel Hungary granted by
Stipdon in connection with the Facility Agreement dated 7 October 1998
between Telekabel Hungary and the other parties referred to therein.
(s) Letter of approval of The First Hungary Fund regarding the obligations of
Telekabel Hungary.
(t) Letter from UPCF to the Agent notifying the Agent of the acquisition of
any company or business which operates in Eastern Europe (as referred
to in paragraph (d) of the definition of Permitted European
Acquisition).
<PAGE>
Part II
Documents and evidence required to be provided prior to the first Drawing
(a) An opinion of Norton Rose, dated not more than five Banking Days prior
to the first Drawdown Date, in a form acceptable to the Agent.
(b) The Security Documents listed below duly executed by the relevant
Obligor and/or by UPC and/or by the other members of the Restricted
Group party thereto together with all documents, deeds, notices and
certificates required to be delivered pursuant to the terms thereof and
the original powers of attorney and board resolutions referred to below
in connection therewith:
Security Document
(i) the Telekabel Hungary Share Security (Dutch law)
(ii) the Stipdon Share Security (Dutch law)
(iii) the pledge by UPC over its shares in UPCF (Dutch law)
(iv) the CNA Share Security (Dutch law)
(v) the RP Share Security (Belgian law)
(vi) the pledge by UPC over its shares in Janco (Norwegian law)
(vii) the Relevant Person Pledge of Shareholder Loans (Dutch law)
(viii) the Borrower Pledge of Shareholder Loans (Dutch law)
(ix) the Security Deed (English law)
<TABLE>
<CAPTION>
(A) Powers of Attorney required in relation to execution of the Share Securities
- ------------------------------------------------------ ----------------------------------------------------
<S> <C> <C> <C>
(i) Power of attorney of UPCF in relation to (vi) Power of attorney of UPC in relation to
the Stipdon Share Security the pledge of its shares in UPCF
- ------------------------------------------------------ ----------------------------------------------------
- ------------------------------------------------------ ----------------------------------------------------
(ii) Power of attorney of Stipdon in relation to (vii) Power of attorney of UPCF in relation to
the Stipdon Share Security the pledge of UPC's shares in UPCF
- ------------------------------------------------------ ----------------------------------------------------
- ------------------------------------------------------ ----------------------------------------------------
(iii) Power of attorney of UPC in relation to the (viii) Power of attorney of UPC in relation to
RP Share Security the CNA Share Security
- ------------------------------------------------------ ----------------------------------------------------
- ------------------------------------------------------ ----------------------------------------------------
(iv) Power of attorney of Stipdon in relation to (ix) Power of attorney of CNA in relation to
the TeleKabel Hungary Share Security the CNA Share Security
- ------------------------------------------------------ ----------------------------------------------------
- ------------------------------------------------------ ----------------------------------------------------
(v) Power of attorney of TeleKabel Hungary in
relation to the TeleKabel
Hungary Share Security
- ------------------------------------------------------ ----------------------------------------------------
</TABLE>
(B) Powers of Attorney required in relation to the execution of the Borrower
Pledge of Shareholder Loans
- ------------------------------------------- ----------------------------------
(i) UPC Slovakia Holding BV (iv) UPC Czech Holding BV
- ------------------------------------------- ----------------------------------
- ------------------------------------------- ----------------------------------
(ii) Stipdon (v) UPCF
- ------------------------------------------- ----------------------------------
- ------------------------------------------- ----------------------------------
(iii) UPC Romania Holding BV
- ------------------------------------------- ----------------------------------
(C) Powers of Attorney required in relation to the execution of the
Relevant Person Pledge of Shareholder Loans
- --------------------------------------------
(i) UPC
- --------------------------------------------
- --------------------------------------------
(ii) UPC Intermediates B.V.
- --------------------------------------------
- --------------------------------------------
(iii) Belmarken
- --------------------------------------------
(D) Board Resolutions required in relation to the execution of Borrower
Pledge of Shareholder Loans, the Relevant Person Pledge of Shareholder
Loans and the Security Deed
(in each case evidencing approval of each such document and authorising
the respective appropriate officers of each company to execute and
deliver each document to which it is a party and to give all notices
and take all other action required by such company)
------------------------------------------- ---------------------------------
(i) UPC Romania Holding BV (iii) UPC Slovakia Holding BV
------------------------------------------- ---------------------------------
------------------------------------------- ---------------------------------
(ii) UPC Czech Holding BV (iv) UPC Intermediates B.V.
------------------------------------------- ---------------------------------
(c) A confirmation from The Toronto-Dominion Bank of all amounts
outstanding under the Existing UPC Senior Facility to be repaid for
value 30 July 1999 and confirming the security granted in connection
with the Existing UPC Senior Facility which is to be released on the
date of the first Drawing under this Agreement and that the Existing
UPC Senior Facility shall be irrevocably cancelled on receipt of such
amount.
Security to be released on the date of the first Drawing
(i) UPC pledge of its shares in CNA (Dutch law)
(ii) UPC pledge of its shares in Radio Public (Belgian law)
(iii) UPC pledge of its shares in Janco (Norwegian law)
(d) Notice of cancellation of the Existing UPC Senior Facility effective on
the date of the first Drawing under this Agreement.
(e) Foreign legal opinions
o An opinion of Ortner, Poch, Foramitti Rechtsanwalte OEG,
special legal advisers to the Banks in Austria, dated not more
than five Banking Days prior to the first Drawdown Date, in a
form acceptable to the Agent.
o An opinion of Coppens, Van Ommeslaghe & Faures, special legal
advisers to the Banks in Belgium, dated not more than five
Banking Days prior to the first Drawdown Date, in a form
acceptable to the Agent.
o An opinion of Trenite Van Doorne, special legal advisers to
the Banks in the Netherlands, dated not more than five Banking
Days prior to the first Drawdown Date, in a form acceptable to
the Agent.
o An opinion of Wiersholm, Mellbye & Bech, special legal
advisers to the Banks in Norway, dated not more than five
Banking Days prior to the first Drawdown Date, in a form
acceptable to the Agent.
(f) An extract from the trade register of the Chamber of Commerce of each
Obligor incorporated in The Netherlands.
(g) A copy, certified as a true, complete and up-to-date copy by an
Authorised Officer of UPCF, of the shareholders' register of each
Obligor incorporated in The Netherlands other than Stipdon Investments
BV.
(h) A letter from the Norwegian Bankruptcy Register confirming that as of
the first Drawdown Date, Janco has not been reported from the local
probate courts to the said register bankrupt.
(i) Originals of the notice of assignment of dividends and acknowledgement
of notice duly signed by UPC and acknowledged by Janco, as set out in
exhibits 1 and 2 to the pledge given by UPC in respect of its
shareholding in Janco.
(j) A letter from Donaldson, Lufkin & Jenrette and Goldman Sachs
International to the Security Agent confirming that the pricing of the
High Yield Notes has taken place and the Security Agent has received
assurances that closing will occur concurrently with the first Drawing
under this Agreement.
(k) The deed of termination in respect of the Existing UPC Senior Facility.
(l) The release of the pledge granted by UPC of its shares in CNA in
connection with the Existing UPC Senior Facility together with a power
of attorney of each of UPC and CNA in connection with such release.
(m) The release of the pledge granted by UPC of its shares in Radio Public
in connection with the Existing UPC Senior Facility.
(n) The release of the pledge granted by UPC of its shares in Janco in
connection with the Existing UPC Senior Facility.
(o) An opinion of Holme Roberts & Owen LLP, legal advisers to the
Borrowers, confirming that the entry into of the Facilities by the
Borrowers will not result in any default under the United GlobalCom,
Inc.
Indentures dated 5th February 1998 and 29 April 1999.
(p) The release letter in respect of the Austrian Security.
<PAGE>
Schedule 4
Calculation of Additional Cost
1 The Additional Cost shall be calculated by the Agent in respect of each
period for which it falls to be calculated relating to an Drawing in
accordance with the following formulae:
In relation to each Sterling Drawing:
[OBJECT OMITTED]
In relation to each other Drawing:
[OBJECT OMITTED]
Where:
C = The amount required to be held as a non-interest
bearing cash ratio deposit with the Bank of England
expressed as a percentage of an eligible
institution's eligible liabilities (above any stated
minimum).
F = The amount of Sterling per (pound)1,000,000 of the
fee base of an authorised institution payable to the
Financial Services Authority per annum (disregarding
any minimum fee payable under the Fees Regulations).
L = The rate of interest per annum at which Sterling
deposits are offered by the Agent to leading banks in
the London Interbank Market at or about 11.00 a.m. on
the date of calculation for a period comparable to
the period for which the Additional Cost is to be
calculated.
S = The amount required to be placed as special
deposits with the Bank of England, expressed as a
percentage of an eligible institution's eligible
liabilities (above any stated minimum).
Y = The fraction of foreign currency liabilities taken
into account under the Fees Regulations in
calculating the fee base (disregarding any offset for
claims on non-resident offices).
Z = The lower of L and the rate of interest per annum
paid by the Bank of England on special deposits at or
about 11.00 a.m. on the date of calculation.
2 For the purposes of calculating the Additional Cost:
(a) C, L, S and Z are included in the formula as numbers and not as
percentages, e.g. if C = 0.15 per cent.
and L = 7 per cent. CL is calculated as 0.15 x 7;
(b) the formula is applied on the first day of each period for
which it falls to be calculated (and the result shall apply
for the duration of such period);
(c) each amount is rounded up to the nearest four decimal places; and
(d) if the formulae produce a negative percentage, the percentage shall be taken
as zero.
3 If alternative or additional financial requirements are imposed by the
Bank of England, the Financial Services Authority or any other United
Kingdom governmental authority or agency which in the Agent's opinion
(after consultation with the Banks) make the formulae (or either of
them) no longer appropriate, the Agent shall be entitled by notice to
the Borrower to stipulate such other formulae as shall be suitable to
apply in substitution for the formulae. Any such other formulae so
stipulated shall take effect in accordance with the terms of such
notice.
4 In this schedule 4:
"authorised" and "institution" have the meanings given to those terms
in the Banking Act 1987;
"Bank of England Act" means the Bank of England Act 1998;
"eligible institution" has the meaning given to that term in schedule 2
to the Bank of England Act;
"eligible liabilities" has the meaning given to that term in the Cash
Ratio Deposits (Eligible Liabilities) Order 1998 or the applicable
substitute order made under the Bank of England Act as is in force on
the date of application of the formulae;
"fee base" has the meaning given to that term in the Fees Regulations.
"Fees Regulations" means the Banking Supervision (Fees) Regulations
1999 or the applicable substitute regulations made under the Bank of
England Act as are in force on the date of application of the formulae;
and
"special deposits" has the meaning given to that term by the Bank of
England on the date of application of the formulae.
<PAGE>
Schedule 5
Form of Transfer Certificate
Banks are advised not to employ Transfer Certificates without first ensuring
that the transaction complies with all applicable laws and regulations,
including the Financial Services Act 1986 and regulations made thereunder.
To: The Toronto-Dominion Bank
Triton Court
14/18 Finsbury Square
London EC2A 1DB
Attention: Manager, Loans Agency
Transfer Certificate
This Transfer Certificate relates to an Agreement (as from time to time amended,
varied, extended, restated, refinanced or replaced, the "Agreement") dated !
1999 between UPC Facility B.V., Telekabel Wien GmbH and Janco Multicom A/S as
Borrowers (1), the entities listed in part B of schedule 1 thereto as Original
Guarantors (2), Bank of America International Limited, CIBC World Markets plc,
Citibank, N.A., MeesPierson N.V., Paribas, The Royal Bank of Scotland plc and
Toronto Dominion Bank Europe Limited as Joint Arrangers (3), the banks and
financial institutions whose respective names and addresses are set out in part
A of schedule 1 thereto as Banks (4), The Toronto-Dominion Bank as Agent (5),
and The Toronto-Dominion Bank as Security Agent (6). Terms defined in the
Agreement shall have the same meaning in this Transfer Certificate.
1 [Name of Tansferor Bank] (the "Transferor Bank") (a) confirms the
accuracy of the summary of its Commitment and Contribution set out in
the schedule to this Transfer Certificate; and (b) requests [Transferee
Bank] (the "Transferee") to accept and procure the transfer to the
Transferee of the portion of its Commitment and Contribution specified
in the schedule to this Transfer Certificate by counter-signing and
delivering this Transfer Certificate to the Agent at its address for
the service of notices specified in the Agreement.
2 The Transferee requests the Agent (on behalf of itself, the other
Secured Parties, the Obligors, the Subordinated Creditors and the
Security Providers) to accept this Transfer Certificate as being
delivered to the Agent pursuant to and for the purposes of clause 17.4
of the Agreement, so as to take effect in accordance with its terms on
[date of transfer], [being not earlier than 5 Banking Days after date
of delivery of the Certificate to the Agent] (the "Effective Date").
3 The Agent (on behalf of itself and the other parties to the Agreement
and the Security Deed) confirms the assignment and transfer effected by
this Transfer Certificate pursuant to and for the purposes of clause
17.4 of the Agreement.
4 The Transferee confirms:
(a) that it has received a copy of the Agreement, the Security
Deed and all other Security Documents and other documentation
and information required by it in connection with the
transactions contemplated by this Transfer Certificate;
(b) that it has made its own assessment of the execution,
effectiveness, adequacy, genuineness, validity, enforceability
and admissibility in evidence of the Agreement, the Security
Documents and this Transfer Certificate and has not relied and
will not rely on the Transferor Bank or any statements made by
the Transferor Bank in that respect;
(c) that it has made and will continue to make its own appraisal
of the creditworthiness of the members of the Restricted
Group, the Subordinated Creditors and the Security Providers
and its own independent investigation of the financial
condition, prospects and affairs of the members of the
Restricted Group, the Subordinated Creditors and the Security
Providers and has not relied and will not rely on the
Transferor Bank or any other Secured Party or any statement,
opinion, forecast or other representation made by the
Transferor Bank or any other Secured Party in that respect;
(d) accordingly, neither the Transferor Bank nor any other Secured
Party shall have any liability or responsibility to the
Transferee in respect of any of the foregoing matters; and
(e) it is a Qualifying Bank.
5 Execution of this Transfer Certificate by the Transferee constitutes
its representation to the Existing Bank and all other parties to the
Agreement and the Security Deed that it has power to become party to
the Agreement and the Security Deed as a Bank on the terms herein and
therein set out and has taken all necessary steps to authorise
execution and delivery of this Transfer Certificate.
6 The Transferee hereby undertakes to the Existing Bank, the Obligors,
the Subordinated Creditors, the Security Providers and the other
Secured Parties that it will perform in accordance with their terms all
those obligations which by the respective terms of the Agreement, the
Security Deed and all other Security Documents will be assumed by it
after acceptance of this Transfer Certificate by the Agent.
7 The Transferee acknowledges that the Existing Bank has no obligation to
repurchase or reacquire any of the rights and obligations transferred
by virtue of this Transfer Certificate or to support, indemnify or
compensate the Transferee for any losses suffered by the Transferee as
a consequence of the transfer effected by virtue of this Transfer
Certificate.
8 This Transfer Certificate and the rights and obligations of the parties
hereunder are governed by and shall be construed in accordance with
English law.
Note: This Transfer Certificate is not a security, bond, note, debenture,
investment or similar instrument.
AS WITNESS the hands of the authorised signatories of the parties hereto on the
date appearing below.
The Schedule
Amount of Contribution Next Interest Payment Date Portion transferred
Euro Euro
Amount of Portion transferred
Facility A Euro
Commitment
Euro
Administrative Details of Transferee
Lending office:
Account for payments:
Telephone:
Telefax:
Attention:
[Transferor Bank] [Transferee]
By: By:
Date: Date:
The Agent
By:
on its own behalf
and on behalf of the other parties to the Agreement and the Security Deed
Date:
<PAGE>
Schedule 6
Part A - Compliance Certificate to be delivered by an Authorised Officer of UPCF
or UPC
The Toronto-Dominion Bank
Triton Court
14/18 Finsbury Square
London EC2A 1DB
Attention: Manager, Loans Agency [Date]
Dear Sirs
Euro 1,000,000,000 Credit Facilities
Loan and Note Issuance Agreement dated [ ], 1999 (as from time to time amended,
varied, extended, restated, refinanced or replaced the "Loan and Note Issuance
Agreement")
We refer to the Loan and Note Issuance Agreement and deliver this Certificate in
respect of the Quarterly Period ended [Quarter Day] pursuant to clause
11.1(i)(i) thereof. Terms defined in the Loan and Note Issuance Agreement shall
have the same meaning when used in this Certificate.
We confirm that on or as of the last day of the Quarterly Period ending [o]:
1 Consolidated EBITDA for the Quarterly Period ending on
[Quarter Day] was [ ] [insert calculation details].
2 Annualised Consolidated EBITDA calculated by reference to the Six Month
Period ending on [Quarter Day] was [ ] [insert calculation details]
3 1Adjusted Annualised Consolidated EBITDA calculated by reference to the
Six Month Period ending on [Quarter Day] was [insert calculation
details].
4 As at [Quarter Day] Senior Debt was [ ] [insert calculation
details].
5 Senior Debt Cash Interest Charges for the 6 month period
ending on [Quarter Day] were [ ] [insert calculation details].
6 2Pro-Forma Senior Debt Service for the twelve months commencing [o] is [o].
Based on the above, we confirm that on [Quarter Day]:
1 The ratio of Senior Debt to Adjusted Annualised Consolidated EBITDA was [o]
[insert calculation details].
2 The ratio of Senior Debt to Annualised Consolidated EBITDA was [o] [insert
calculation details]. 3 The ratio of Consolidated EBITDA to Senior Debt Cash
Interest Charges was [o] [insert calculation
details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [o] [insert calculation details].
5 Excess Cash Flow was [o].
Accordingly, we confirm that [save as disclosed in this certificate] on [Quarter
Day] the Borrowers were in compliance with those covenants contained in clause
12.1 inclusive of the Loan and Note Issuance Agreement which were applicable as
at [Quarter Day].
We further confirm that the combined, consolidated total assets, consolidated
revenues and consolidated EBITDA of each Borrower and its Subsidiaries as at the
date of this Agreement, each Original Guarantor and its Subsidiaries as at the
date of this Agreement and each Acceding Guarantor and its Subsidiaries as at
the date on which it became a Guarantor is not less than 90 per cent. of the
consolidated total assets, consolidated revenues and consolidated EBITDA of the
Restricted Group.
We confirm that the representations and warranties contained in clause 10.1 and
clause 10.2 of the Loan and Note Issuance Agreement to be repeated in accordance
with clause 10.4 of the Loan and Note Issuance Agreement, are true and correct
as at the date hereof as if made with reference to the facts and circumstances
existing at such date.
We also confirm that negative EBITDA attributable to New Services in respect of
the Quarterly Period ended [Quarter Day] was [ ].
For and on behalf of
UPCF
.............................
Authorised Officer
<PAGE>
Schedule 6
Part B - Compliance Certificate to be delivered by the auditors of UPCF or UPC
The Toronto-Dominion Bank
Triton Court
14/18 Finsbury Square
London EC2A 1DB
Attention: Manager, Loans Agency [Date]
Dear Sirs
Euro 1,000,000,000 Credit Facilities
Loan and Note Issuance Agreement dated [ ], 1999 (as from time to time amended,
varied, extended, restated, refinanced or replaced the "Loan and Note Issuance
Agreement")
We refer to the Loan and Note Issuance Agreement and deliver this Certificate in
respect of the financial year ended [year end] pursuant to clause 11.1(i)(i)
thereof. Terms defined in the Loan and Note Issuance Agreement shall have the
same meaning when used in this Certificate.
We confirm that in our opinion:
1 Consolidated EBITDA ending on [year end] was [ ] [insert calculation
details].
2 Annualised Consolidated EBITDA in respect of the financial year ending
on [year end] was [ ] [insert calculation details]
3 1Adjusted Annualised Consolidated EBITDA in respect of the financial
year ending on [year end] was [insert calculation details].
4 As at [the end of [year end]] Senior Debt was [ ]
[insert calculation details].
5 Senior Debt Cash Interest Charges for the financial year
ending on [year end] were [ ] [insert calculation details].
6 2Pro-Forma Senior Debt Service for the twelve months commencing [o] is [o].
7 Negative EBITDA attributable to New Services for the financial year
ending on [year end] was [ ] [insert calculation details].
Based on the above, we confirm that on [year end]:
1 The ratio of Senior Debt to Adjusted Annualised Consolidated EBITDA was [o]
[insert calculation details]
2 The ratio of Senior Debt to Annualised Consolidated EBITDA was [o] [insert
calculation details]. 3 The ratio of Consolidated EBITDA to Senior Debt Cash
Interest Charges was [o] [insert calculation
details].
4 The ratio of Annualised Consolidated EBITDA to Pro Forma Senior Debt
Service was [o] [insert calculation details].1
5 Excess Cash Flow was [o].
Accordingly, we confirm that in our opinion [and save as disclosed in this
Certificate] as at [year end] the Borrowers were in compliance with those
covenants contained in clause 12.1 of the Loan and Note Issuance Agreement which
were applicable as at [year end].
We further confirm that the combined, consolidated total assets, consolidated
revenues and consolidated EBITDA of each Borrower and its Subsidiaries as at the
date of this Agreement, each Original Guarantor and its Subsidiaries as at the
date of this Agreement and each Acceding Guarantor and its Subsidiaries as at
the date on which it became a Guarantor is not less than 90 per cent. of the
consolidated total assets, consolidated revenues and consolidated EBITDA of the
Restricted Group.
We also further confirm that negative EBITDA attributable to New Services has
not exceeded Euro 50,000,000 in aggregate for the period from 30 June 1999 to
the financial year ending on [year end] unless funded by UPC by means of a new
cash Subordinated Shareholder Loan or by a cash subscription for equity share
capital of UPCF no more than 45 days after such excess occurred.
For and on behalf of
UPCF
..............................
Auditors
<PAGE>
Schedule 7
Registrations and Licences
A: Austrian Licences
"Austrian Licences" means the following documents and agreements:
(a) Telekabel Wien
(i) Gewerbeschein dated 5th November 1981
(ii) Gewerbeschein dated 30th October 1979
(iii) Konzessionsdekret dated 8th October 1981
(iv) Fernmeldebewilligung dated 13th September 1993
(v) Wegerechte: Bescheld der Germeinde Wien dated 1st March 1978
(vi) Gewerbeschein dated 7th May 1999
(vii) Bescheid of the Telekom-Control-Kommission dated 9th March 1998
(b) Telekabel Graz GmbH
(i) Gewerbeschein dated 22nd April 1980
(ii) Gewerbeschein dated 7th May 1984
(iii) Fernmeldebewilligung dated 24th October 1995
(iv) Elektrotechnikergewerbebewillingung dated 30th October 1998
(c) Telekabel Klagenfurt GmbH
(i) Gewerbeschein dated 10th November 1980
(ii) Gewerbeschein dated 16th December 1982
(iii) Fernmeldebewilligung dated 17th January 1995
(iv) Elektrotechnikergewerbebewillingung dated 9th December 1998
(d) Telekabel-Fernsehnetz Baden Betriebsgesellschaft mbh
(i) Gewerbeschein dated 4th December 1981
(ii) Fernmeldebewillignung dated 26th July 1990 held by Kabel - TV - Sud
GmbH (minority shareholder)
(e) Telekabel-Fernsehnetz Wiener Neustadt/Neunkirchen Betriebsgesellschaft
mbh
(i) Gewerbeschein dated 10th April 1980
(ii) Gewerbeschein dated 26th June 1984
(iii) Fernmeldebewilligung dated 25th July 1990 held by Kabel-TV-Wiener Neustadt
GmbH (minority shareholder).
B: Belgian Licences
"Belgian Licences" means the following documents and agreements:
1 Brussels area:
(a) Municipality of Etterbeek:
Licence given by settlement agreement dated 26 May 1997 and
authorisation dated 19 May 1969.
(b) Municipality of Schaerbeek
Authorisation dated 21 October 1969.
(c) Municipality of Koekelberg
Authorisation dated 21 October 1969.
(d) Municipality of Jette and Ganshoren
Authorisation dated 6 February 1970.
(e) Municipality of Berghem-St-Agathe
Authorisation dated 22 December 1970.
(f) Municipality of Forest
Authorisations dated 21 December 1970 and 3 January 1978.
(g) Municipality of Schaarbeek and Forest
Authorisation dated 3 January 1978.
2 Leuven area:
(a) Municipality of Heverlee and Kessel-Lo
Authorisation dated 1971.
(b) Municipality of Leuven
Authorisation dated 1971.
3 Telecommunications services
(a) Letter of the Belgian Institute for Postal Services and
Telecommunications ("BIPT") authorising Radio Public to provide
Internet access through the company's public telecommunications
structure;
(b) Letter of the BIPT authorising Radio Public to operate a public
telecommunications system service as of 9 May 1997, in the territories
of Etterbeek, Shaerbeek, Koekelberg, Jette, Ganshoren,
Berchem-St.-Agathe, Forest and Leuven.
(c) Letter of BIPT informing Radio Public of the approval by the Minister
of Telecommunications on 3 August 1998 of the geographical extension of
Radio Public's permit of 9 May 1997 for the operation of a public
telecommunications structure to 76 communes;
(d) Letter of 21 April 1999 from Minister Ylieff, Minister of Scientific
Policy, authorising Radio Public to operate its business of radio and
television distribution to the communes of Anderlecht, Oudergem,
Brussels, Evere, Elsene, Sint-Jans-Molenbeek, Sint Gillis,
Sint-Joost-ten-Noode, Ukkel, Watermaal-Bosvoorde,
Sint-Lambrechts-Woluwe and Sint-Pieters-Woluwe taking effect on 21
April 1999.
(e) Letter of the BIPT, dated January 1999, for the establishment and
exploitation of a public telecommunication network, with a copy of the
authorisation by the Minister dated 22 January 1999, the official
individual authorisation and a certificate in Dutch from the BIPT.
C: Hungarian Licences
"Hungarian Licences" means the following documents and agreements:
ANFEL-KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 12th May, 1998 issued by the Communication Inspectorate
of West Hungary to Anfel-Kabelkom Kabelkommunikacios Kft.
HAJDU-KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 9th April, 1998 issued by the Communication Inspectorate
of North Hungary to Hajdu Kabelkom, Kabelkommunikacios Kft.
KABELKOM -DUNAUJVAROS KABELKOMMUNIKACIOS KFT.
Licence dated 28th April, 1998 issued by the Communication Inspectorate
of South Hungary to Kabelkom-Dunaujvaros Kft.
KABELKOM-NYIREGYHAZA KABELKOMMUNIKACIOS KFT.
Licence dated 28th January, 1999 issued by the Communication
Inspectorate of North Hungary to Kabelkom-Nyiregyhaza
Kabelkommunikacios Kft.
KABELKOM-PECSI KABELTELEVIZIO KFT.
Licence dated 23rd May, 1997 issued by the Communication Inspectorate
for Pecs Region to Kabelkom Pesci Kabeltelevizio Kft.
KABELKOM-SZEKESFEHERVAR KABELKOMMUNIKACIOS KFT.
Licence dated 13th May, 1998, issued by the Communication Inspectorate
of West Hungary to Kabelkom-Szekesfehevar Kabelkommunikacios Kft.
KABELKOM-SZOLNOK KABELKOMMUNIKACIOS KFT.
Licence dated 27th April, 1998, issued by the Communication
Inspectorate of East Hungary to Kabelkom-SzOLNOK Kabelkommunikacios
Kft.
Modification of above Licence dated 11th May 1998 issued by the
Communication Inspectorate of East Hungary to Kabelkom-Szolnok
Kabelkommunikacios Kft.
KABELKOM-VESZPREM KABELKOMMUNIKACIOS KFT.
Licence dated 12th May, 1998, issued by the Communication Inspectorate
of West Hungary to Kabelkom Veszprem Kabelkommunikacios Kft.
TELESTAR- KABELKOM KABELKOMMUNIKACIOS KFT.
Licence dated 13th May, 1998 issued by the Communication Inspectorate
of North Hungary to Telestar Kabelkom Kabelkommunikacios Kft.
MISKOLCI KABEL-TV KFT.
Licence dated 8th May, 1998 issued by the Communication Inspectorate of
North Hungary to Miskolci Kabel-TV Kft.
KABELTEL SOPRON KABELTELEVIZIOS SZOLGALTATO KFT.
("Kabeltel Sopron Kft")
Licence dated 9th March, 1999 issued by the Communication Inspectorate
of West Hungary to Kabeltel Sopron Kft.
KABELTEL-ELEKTRA KABELTELEVIZIOS SZOLGALTATO KFT.
("Kabeltel-Elektra Kft")
Licence dated June 30, 1998, issued by the Communication Inspectorate
of West Hungary to Kabeltel-Elektra Kft.
GLOBAL BUDAPEST KABELTELEVIZIOS KFT. ("Global Kft")
Licence dated 13th May, 1999 issued by the Communication Inspectorate
of West Hungary to Global Kft.
KABELTEL KANIZSA KABELTELEVIZIOS KFT. ("Kabeltel Kanizsa Kft")
For the territory of Nagykanizsa:
Licence dated June 8, 1998, issued by the Communication Inspectorate of
South Hungary to Kabeltel Kanizsa Kft.
For the territory of Mor:
Licence dated 4th March, 1999 issued by the Communication Inspectorate
of West Hungary to Kabeltel Kanizsa Kft.
KABELTEL BUDAPEST KABELTELEVIZIOS SZOLGALTATO KFT. ("Kabeltel Budapest
Kft")
Licence dated 19th December, 1998 issued by the Budapest Communication
Inspectorate to Kabeltel Budapest Kft.
D: Norwegian Licences
"Norwegian Licences" means the following documents and licences
relating to Janco:
(a) List of registered providers of public telephony and public
telephone services from the Norwegian Telecommunications
Authority (the "PTA") dated May 31, 1999.
(b) Assignment of number series from the PTA dated April 24, 1998.
(c) Assignment of prefix number 1503 from the PTA dated May 25, 1998.
(d) License for point to multipoint system from the PTA dated March 27,
1998.
(e) Temporary license for test projects from the Ministry of Cultural
Affairs dated March 27, 1998.
(f) Temporary license for the establishment of a registry for
personal data from the Norwegian Data Protection Authority
dated February 15, 1999.
(g) Authorisation to provide installation services relating to
cable networks dated November 21, 1996.
<PAGE>
Schedule 8
Interconnect Agreements
1 The interconnect agreement between Telenor Nett AS and Janco dated 15
March, 1999.
2 The interconnection order made by the Austrian Telekom Control
Kommission dated 5 October, 1998 governing the interconnection
arrangements between Telekabel Wien and Telekom Austria AG.
<PAGE>
Schedule 9
Part A - Guarantor's Deed of Accession
To: THE TORONTO-DOMINION BANK as Security Agent
From: [PROPOSED GUARANTOR] and [UPCF]
Date: [o]
UPCF Euro 1,000,000,000 Loan and Note Issuance Agreement dated o, 1999 (as from
time to time amended, varied, extended, restated, refinanced or replaced the
"Facility Agreement")
We refer to clause 9.17 of the Facility Agreement. Words and expressions defined
in the Facility Agreement have the same meanings when used in this Deed.
We, [name of company] of [address] agree to become an Acceding Guarantor and to
be bound by the terms of the Facility Agreement as an Acceding Guarantor in
accordance with clause 9.17 of the Facility Agreement and the Security Deed as a
Guarantor in accordance with clause 9.6 of the Security Deed.
[Local law limitations on amounts guaranteed by Acceding Guarantor (if any)]
Our address for notices for the purposes of clause 19.1 of the Facility
Agreement is:
[o]
This Deed is intended to be executed as a deed and is governed by English law.
[PROPOSED GUARANTOR] [UPCF]
[Appropriate execution clause] [Appropriate execution clause]
By: By:
By:
SECURITY AGENT
[Appropriate execution clause]
By:
<PAGE>
Schedule 9
Part B - Documents and Evidence to be delivered by an Acceding Guarantor
(a) Guarantor's Deed of Accession, duly executed under seal by the Acceding
Guarantor and the Borrower;
(b) (if required by the terms of clause 9.17 of this Agreement) a Share
Security over the shares of the Acceding Guarantor, duly executed as a
deed by the parties to it (the "Relevant Shareholders");
(c) a copy of the constitutional documents of each of the Acceding
Guarantor and (if a Share Security is to be provided pursuant to
paragraph (b) above) the Relevant Shareholders;
(d) a copy of a resolution of the board of directors of each of the
Acceding Guarantor and (if a Share Security is to be provided pursuant
to paragraph (b) above) Relevant Shareholders approving the terms of,
and the transactions contemplated by, the Guarantor's Deed of
Accession, the relevant Security Documents (if any) (as appropriate)
and authorising its appropriate officers to execute and deliver the
Guarantor's Deed of Accession, the relevant Security Documents (as
appropriate) and give all notices and take all other action required by
it under the Finance Documents;
(e) a certificate of a director of the Acceding Guarantor certifying that
the amounts to be guaranteed by the Acceding Guarantor would not cause
any guaranteeing limit binding on it to be exceeded;
(f) a copy of any other authorisation or other document, opinion or
assurance which is necessary for the execution, delivery and validity
and enforceability of the Guarantor's Deed of Accession, the relevant
Security Documents or the Share Security (if any);
(g) a specimen of the signature of each person authorised by a resolution
referred to in paragraph (f) above;
(h) if available, a copy of the latest audited accounts of the Acceding
Guarantor;
(i) a legal opinion of English legal advisers, acceptable to the Agent,
addressed to the Security Agent Guarantor on behalf of the
Beneficiaries (as defined in the Security Deed)
(j) if the Acceding Guarantor and/or a Relevant Shareholder is incorporated
in a jurisdiction outside England, a legal opinion of legal advisers,
reasonably acceptable to the Agent, in the jurisdiction of
incorporation of the Acceding Guarantor and/or Relevant Shareholder (as
appropriate), addressed to the Security Agent Guarantor on behalf of
the Beneficiaries (as defined in the Security Deed) with respect to the
matters provided for in the legal opinions referred to in schedule 3;
(k) a certificate of an authorised signatory of the Acceding Guarantor and
each Relevant Shareholder certifying that each copy document specified
in part B of this schedule 9 and relating to it is correct, complete
and in full force and effect as at a date no earlier than the date of
the Guarantor's Deed of Accession or relevant Security Documents (as
appropriate);
(l) a certificate of an authorised signatory of UPCF confirming that its
constitutional documents have not been amended (or, if they have,
enclosing a copy of the amended constitutional documents) and that all
authorisations and resolutions authorising its appropriate officers to
execute and deliver the Guarantor's Deed of Accession remain in full
force and effect;
(m) if applicable, share certificates and stock transfer forms executed in
blank and all other documents required to be delivered to the Security
Agent in connection with the relevant Share Security; and
(n) such other documents as the Agent may reasonably require after taking
the advice of the legal advisers referred to in paragraphs (i)and (j)
above.
<PAGE>
<TABLE>
<CAPTION>
Schedule 10
Form of Quarterly Management Accounts/Monthly Information
Cable Television - Statistics
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Homes in Franchise Area
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Homes Passed (serviceable)
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
% of Homes Passed in Franchise Area
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Subscribers
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Pay Per View Events
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Other
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Penetration
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Average revenue per subscriber
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Lifeline
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Enhanced Basic
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Premium
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Pay Per View Events
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Other Key Statistics
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Number of Employees (period end)
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Hit Ratio (PPV)
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
First Connections
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Reconnections
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Disconnections
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
Churn Rate (basic subscribers)
- -------------------------------------- --------------- --------------- ------------- ---------------- ---------------- -------------
<PAGE>
Cable Telephony - Statistics
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes Passed (serviceable)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business Passed (serviceable)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Homes Passed in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Bus. Passed in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Subscribers
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Lines Served
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Penetration
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per subscriber
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per line
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Key Statistics
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Number of Employees (period end)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Lines per subscriber
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
First Connections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Reconnections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Disconnections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Churn Rate (total subscribers)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
<PAGE>
Cable Dataservices - Statistics
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Operating Statistics Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Homes Passed (serviceable)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Businesses Passed (serviceable)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Homes Passed in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% of Bus. Passed in Franchise Area
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Subscribers
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Medium Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Subscribers
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Penetration
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Average revenue per subscriber
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Residential
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Business
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Small Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Medium Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Large Office
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Key Statistics
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Number of Employees (period end)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
First Connections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Reconnections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Disconnections
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Churn Rate
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
<PAGE>
Profit and Loss Account (NLG `000)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Profit & Loss Acccount Montly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Revenue
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Television
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Telephony
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Dataservices
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Other
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total revenue
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Direct Costs
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Television
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Telephony
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Cable Dataservices
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Other
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Direct Costs
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Expenses
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Expenses
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - Franchise Fees
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Expenses
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Operating Income/(Loss)/EBITDA
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
% NOI versus Revenue
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Depreciation and Amortisation
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Management Fee/GSA
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Internal Financial Expenses/(Income)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
External Financial Expenses/(Income)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Business (Income)/Charges
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income/(Loss) Before Taxes
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Dividend Income
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income Taxes
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Minority Share
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Income Unconsolidated Companies
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Income
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Income/(Loss)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
<PAGE>
Cash Flow Statement (NLG `000)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cash Flow Monthly Monthly Variance YTD YTD Variance
[Month,Year] [Month,Year] [Month,Year] [Month,Year]
Actual Budget Actual Budget
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Sources of Operation
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Net Income/(Loss)
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Add: Depreciation & Amortisation
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Increase/(Decrease) in Working
Capital
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - plus Management Fees payable
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- - less Management Fees paid
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Sources of Operation
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Investments
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Television
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Telephony
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Cable Dataservices
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Capex Other
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Investments
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Financing
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Internal Financing
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
External Financing
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Senior Facility
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Other Bankloans
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Total Financing Sources
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Increase/(Decrease) in Cash
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Beginning Cash Balance
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Exchange Rate Adjustment BB
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
Ending Cash Balance
- -------------------------------------- --------------- ---------------- ------------- ---------------- --------------- -------------
<PAGE>
Balance Sheet (NLG `000)
- --------------------------------------- ----------------- ----------------- ------------------
Assets Monthly Monthly Variance
[Month,Year] [Month,Year]
Actual Budget
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
ASSETS
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Gross Intangible Fixed Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Accumulated Amortisation
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Net Intangible Fixed Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Gross Tangible Fixed Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Accumulated Depreciation
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Net Tangible Fixed Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Investment in Non Cons. Companies
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Advances
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Loans receivable from Participations
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Loans receivable from Uncons.
Companies
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Non Current Financial Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Stocks and Bonds
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Assets held for sale
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Financial Fixed Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Liquid Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Trade Debtors
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Sundry Debtors
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Prepaid Expenses
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
VAT Receivable
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
IC Receivables from Participations
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
IC Interest Receivable from
Participations
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
IC GSA Receivable from Participations
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Accounts Rec. Uncons. Companies
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Inventory
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Other
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
Total Current Assets
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
- --------------------------------------- ----------------- ----------------- ------------------
TOTAL ASSETS
- --------------------------------------- ----------------- ----------------- ------------------
<PAGE>
Balance Sheet (NLG `000)
- ---------------------------------------- ---------------- ----------------- -----------------
Liabilities & Capital Monthly Monthly Variance
[Month,Year] [Month,Year]
Actual Budget
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
EQUITY
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Share Capital
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Additional Paid-In Capital Current Year
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Reserves
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Transaction difference
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Retained Earnings
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Result Current Year
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Transl. Adjustm. Result for the Year
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Minority Interest
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Total Shareholders Equity
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Liabilities
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Pensions/Early Retirement
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Deferred Taxes
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Other Provisions
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Total Provisions
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Loans from Participations
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Third Party Term Loan - Facility A
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Long Term Debt
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Trade Creditors
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
IC Accounts Payable Cons. Companies
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Deferred Revenue
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Accrued Liabilities
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Accrued Management Fees
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Accrued Interest
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Subscriber Deposits
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Sundry Creditors
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Total Current Liabilities
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Total Liabilities
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
- ---------------------------------------- ---------------- ----------------- -----------------
Total Equity & Liabilities
- ---------------------------------------- ---------------- ----------------- -----------------
</TABLE>
<PAGE>
Schedule 11
Form of Telekabel Note
Telekabel Wien Gesellschaft m.b.H
[currency][amount]
Bearer Bond (the "Note")
issued subject to the terms and conditions set out below
Vienna [date]
Terms and Conditions
1 Form and denomination
This Note is issued in bearer form. The holder of this Note shall be
entitled to exercise any rights hereunder. The nominal amount of this
Note is [currency][amount].
2 Interest
Interest on this Note shall accrue at [rate] per cent. per annum (being
the aggregate of (a) the applicable Margin (which, unless otherwise
agreed by the issuer shall not exceed 2 per cent. per annum), (b) the
Additional Cost (if the nominal amount is denominated in Sterling and
(c) [LIBOR] [EURIBOR]).
Interest shall be payable on this Note on [[interim interest payment
date] and on] [date of maturity].
3 Term and final maturity
Subject to clause 4 below, this Note shall be redeemed in full on [date
of maturity].
4 Term and Conditions
This Note has been issued on terms and conditions agreed between, inter
alia, Telekabel Wien Gesellschaft m.b.H., Bank of America International
Limited, CIBC World Markets plc, Citibank, N.A., MeesPierson N.V.,
Paribas, The Royal Bank of Scotland plc and The Toronto-Dominion Bank
as Joint Arrangers, The Toronto-Dominion Bank as Agent on behalf of
certain Banks and The Toronto-Dominion Bank as Security Agent. Unless
the context otherwise requires, the words and expressions defined in
such terms and conditions shall have the same meanings when used in
this Note.
Signed
Telekabel Wien Gesellschaft m.b.H.
[Completed under instructions from Telekabel Wien Gesellschaft m.b.H. by the
Agent]
<PAGE>
Schedule 12
Norwegian Asset Security
Terms and expressions in this schedule which are not defined in this Agreement
shall have the meaning given to them in the loan agreement dated 8 October 1997
entered into in connection with the Existing UPC Facility.
A Security provided by Norkabel, Kanal 2 A/S ("Kanal"), Norkabel A/S
("NAS") and Oslo Kabelanlegg A/S ("OK")
1 Declaration relating to mortgages over new property by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
2 Assignment and Notice of Programme Supply Agreements by Norkabel and
NAS, in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
3 Assignment of Insurance Proceeds by Norkabel, NAS, OK and Kanal, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
4 A Mortgage Deed for NOK 720,000,000 dated 16 November 1989, under the
name of Askim Antenneservice, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med driftsilbeh0r) in
Eidsbergvn. 5, gnr. 52, bnr. 47 in the municipality of Askim, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
5 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Drammen Kabel-TV, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in hans
Kjaersgt. 2, gnr. 111, bnr. 248 in the municipality of Drammen, in the
form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
6 A Mortgage Deed for NOK 725,000,000 registered 10 March 1992 under the
name of AS KA-TEL, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med drifstilbeh0r) in gnr. 7613, bnr. 9 in
the municipality of Kongsberg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
7 A Mortgage Deed for NOK 720,000,000 registered 9 February 1990 under
the name of Moss Kabel TV, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Vaerftsgaten
10, gnr. 1, bnr. 2750 in the municipality of Moss, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
8 A Mortgage Deed for NOK 720,000,000 registered 31 January 1990 under
the name of 0stfold Kabelnett A/S, registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
Violgt. 8, gnr. 62, bnr. 111 in the municipality of Halden, in the form
given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
9 A Mortgage Deed for NOK 720,000,000 registered 17 November 1989 under
the name of Teletransmisjon A/S, registered over the Mortgagors' Leased
Real Estate and Appurtenances (leierett med drifstilbeh0r) in
Lensmannslia 30, gnr. 50, bnr. 23 parcel A in the municipality of
Asker, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
10 A Mortgage Deed for NOK 720,000,000 registered 13 March 1990 under the
name of West Satellite A/S, registered over the Mortgagors' Leased Real
Estate and Appurtenances (leierett med drifstilbeh0r) in Arken Senter
Asane 39, gnr. 88, bnr. 387, 388, 389, 390 and 391 in the municipality
of Bergen, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
11 A Mortgage Deed for NOK 720,000,000 registered 12 September 1990 under
the name of Rogaland Kabelnett A/S, registered over the Mortgagors'
Real Estate and Appurtenances (fast eiendom med drifstilbeh0r) in
Tjensvolltorget 27, gnr. 25, bnr. 161 in the municipality of Stavanger,
in the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
12 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 2076 bnr. 169 in
the municipality of Sarpsborg, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
13 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 15, bnr. 661 in the
municipality of Karm0y, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
14 A Mortgage Deed for NOK 725,000,000 dated 10 June 1993, under the name
of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 188, bnr. 202 in
the municipality of Bergen, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
15 A Mortgage Deed for NOK 725,000,000 dated 5 November 1993, under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 86, bnr. 33 in the
municipality of Frogn, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
16 A Mortgage Deed for NOK 725,000,000 registered 10 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 148, bnr. 834 and
306 in the municipality of Karm0y, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
17 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 16, bnr. 109 in the
municipality of Stavanger, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
18 A Mortgage Deed for NOK 725,000,000 registered 23 March 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 150 bnr. 1141 in
the municipality of Kristiansand, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
19 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 38, bnr. 158 in the
municipality of Oslo, in the form given to ING Bank N.V. in connection
with the Existing Norkabel Facility, mutatis mutandis;
20 A Mortgage Deed for NOK 725,000,000 registered 15 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 24 bnr. 4 in the
municipality of Nedre Eiker, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
21 A Mortgage Deed for NOK 725,000,000 registered 20 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 39, bnr. 137 in the
municipality of Ringerike, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
22 A Mortgage Deed for NOK 725,000,000 registered 23 June 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 30 bnr. 230 in the
municipality of Skedsmo, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
23 A Mortgage Deed for NOK 2,080,000 registered 17 October 1995 under the
name of Norkabel, registered over the Mortgagors' Leased Real Estate
and Appurtenances (leierett med driftstilbeh0r) in gnr. 32, bnr. 279
and 771 in the municipality of Oslo, in the form given to ING Bank N.V.
in connection with the Existing Norkabel Facility, mutatis mutandis;
24 A Mortgage Deed for NOK 725,000,000 registered 28 August 1995 under the
name of NAS, registered over the Mortgagors' Leased Real Estate and
Appurtenances (leierett med driftstilbeh0r) in gnr. 34, bnr. 14 in the
municipality of R0yken, in the form given to ING Bank N.V. in
connection with the Existing Norkabel Facility, mutatis mutandis;
25 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) in gnr. 152 bnr. 1756 in the municipality of
Kristiansand, in the form given to ING Bank N.V. in connection with the
Existing Norkabel Facility, mutatis mutandis;
26 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 34 bnr. 14 in the municipality of R0yken, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
27 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
gnr. 12 bnr. 751 in the municipality of Kristiansand, in the form given
to ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
28 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 188 bnr. 202 in the municipality of Bergen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
29 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 38 bnr. 158 in the municipality of Oslo, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
30 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 134 bnr. 8 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
31 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 132 bnr. 214 in the municipality of Drammen, in
the form given to ING Bank N.V. in connection with the Existing
Norkabel Facility, mutatis mutandis;
32 A Mortgage Deed for NOK 900,000,000 registered over the Mortgagors'
Leased Real Estate and Appurtenances (leierett med drifstilbeh0r) in
gnr. 117 bnr. 517 in the municipality of Drammen, in the form given to
ING Bank N.V. in connection with the Existing Norkabel Facility,
mutatis mutandis;
33 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 17 bnr. 3 in the municipality of Drammen, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
34 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 142 bnr. 6 in the municipality of Lier, in the
form given to ING Bank N.V. in connection with the Existing Norkabel
Facility, mutatis mutandis;
35 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) gnr. 8651 bnr. 1, 114, 115, 116, 117, 118, 119 and 120
in the municipality of Kongsberg, in the form given to ING Bank N.V.,
in connection with the Existing Norkabel Facility, mutatis mutandis;
36 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
drifstilbeh0r) in gnr. 12 bnr. 26 in the municipality of Askim, in the
form given to ING Bank N.V., in connection with the Existing Norkabel
Facility, mutatis mutandis;
37 A Mortgage Deed for NOK 900,000,000 to be registered over the
Mortgagors' Leased Real Estate and Appurtenances (leierett med
driftstilbeh0r) in gnr. 33 bnr. 500 in the municipality of Haugesund,
in the form given to ING Bank N.V., in connection with the Existing
Norkabel Facility, mutatis mutandis;
<PAGE>
B Security provided by Janco Multicom AS
1 Assignment of Receivables by Janco, in a form satisfactory to the
Banks.
2 Declaration of Janco concerning mortgages over Stock of Goods and Motor
Vehicles together with Factoring Agreement, in a form satisfactory to
the Banks.
3 Pledge of Bank Accounts by Janco, in a form satisfactory to the Banks.
4 Assignment of Insurance Proceeds by Janco, in a form satisfactory to the
Banks.
5 Assignment and Notice of Programme Supply Agreement by Janco, in a for
satisfactory to the Banks.
6 Mortgage Deed for NOK 900,000,000 to be registered over the Mortgagors
Leased Real Estate and Appurtenances (leierett med driftstilbeh0r) at
Ensj0veien 7, Oslo leased pursuant to a Lease Agreement dated 24th June
1997, in a form satisfactory to the Banks.
7 A Declaration of Pledge and Deposit of a new promissory note to be
issued by Janco in the principal amount of NLG75,440,850 which, upon
full repayment of ING Bank B.V., shall replace, supersede and be in
substitution of the unsecured promissory note dated October 26th, 1995
in the principal amount of USD$70,780,401.40 pledged to ING Bank N.V.
in connection with the Existing Nakabel Facility.
<PAGE>
C Additional Security
Such other security documents as may be registered in favour of the
Toronto-Dominion Bank to secure amounts outstanding under the Existing
UPC Facility.
<PAGE>
Schedule 13
Part A
UPCF Group Structure Chart as at the date of the first Drawing
Please see next page.
<PAGE>
Part B
UPCF Group Structure Chart after the Restructuring
Please see next page.
<PAGE>
The Borrowers
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
UPC FACILITY B.V. )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
TELEKABEL WIEN GmbH )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
JANCO MULTICOM A/S )
by: )
The Guarantors
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
CABLE-NETWORKS AUSTRIA HOLDING, B.V. )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
RADIO PUBLIC S.A. )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
UPC FACILITY B.V. )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
STIPDON INVESTMENTS B.V. )
by: )
SIGNED for and on behalf of ) DENNIS OKHUIJSEN
TELEKABEL HUNGARY N.V. )
by: )
The Joint Arrangers
SIGNED for and on behalf of ) STEPHEN MCPHERSON
TORONTO DOMINION BANK EUROPE LIMITED )
by: )
SIGNED for and on behalf of ) RICHARD WOODS
BANK OF AMERICA INTERNATIONAL LIMITED )
by: )
SIGNED for and on behalf of ) LOUISE MOAT
CIBC WORLD MARKETS PLC )
by: )
SIGNED for and on behalf of ) GRAHAM THROWER
CITIBANK, N.A. )
by: )
SIGNED for and on behalf of ) GARY GRIFFITHS
MEESPIERSON N.V. )
by: )
SIGNED for and on behalf of ) LOUISE MOAT
PARIBAS )
by: )
SIGNED for and on behalf of ) SANDFORD WAX
THE ROYAL BANK OF SCOTLAND PLC )
by: )
The Banks
SIGNED for and on behalf of ) ANN KERNS
THE CHASE MANHATTAN BANK )
by: )
SIGNED for and on behalf of ) LOUISE MOAT
CIBC WORLD MARKETS PLC )
by: )
SIGNED for and on behalf of ) GRAHAM THROWER
CITIBANK, N.A. )
by: )
SIGNED for and on behalf of ) MARK DENATALE
GOLDMAN SACHS CREDIT PARTNERS L.P. )
by: )
SIGNED for and on behalf of ) STUART LEVETT
DLJ CAPITAL FUNDING, INC. )
by: )
SIGNED for and on behalf of ) GARY GRIFFITHS
MEESPIERSON N.V. )
by: )
SIGNED for and on behalf of ) ALLAN KERR
NB INTERNATIONAL FINANCE B.V. )
by: )
SIGNED for and on behalf of ) LOUISE MOAT
PARIBAS )
by: )
SIGNED for and on behalf of ) SANDFORD WAX
THE ROYAL BANK OF SCOTLAND PLC )
by: )
SIGNED for and on behalf of ) STEPHEN MCPHERSON
THE TORONTO-DOMINION BANK )
by: )
The Agent
SIGNED for and on behalf of ) STEPHEN MCPHERSON
THE TORONTO-DOMINION BANK )
by: )
The Security Agent
SIGNED for and on behalf of ) STEPHEN MCPHERSON
THE TORONTO-DOMINION BANK )
by: )
1 Until and including 30th June, 2001 only
2 From and including 30th June, 2002 only
1 Until and including 30th June, 2001 only
2 From and including 30th June, 2002 only
