EXHIBIT 2.30
NETIA HOLDINGS B.V.
Issuer
and
NETIA HOLDINGS S.A.
NETIA TELEKOM S.A.
NETIA SOUTH Sp. z o.o.
Guarantors
and
THE BANK OF NEW YORK
Trustee
and
ING BANK ▇▇▇▇▇▇ ▇.▇.
Security Agent
------------------------------------------
Senior Secured Euro Notes Indenture
Dated as of 23 December 2002
------------------------------------------
Up to (euro)50,000,000
10% Senior Secured Euro Notes due 2008
TABLE OF CONTENTS
PAGE
Article 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.............................1
Section 1.1 Definitions..............................................................1
Section 1.2 Compliance Certificates and Opinions.....................................23
Section 1.3 Form of Documents Delivered to Trustee...................................24
Section 1.4 Actions of Holders.......................................................25
Section 1.5 Notices, Etc., to Trustee, Issuer and/or the Guarantors..................26
Section 1.6 Notices to Holders: Waiver...............................................26
Section 1.7 Effect of Headings and Table of Contents.................................27
Section 1.8 Successors and Assigns...................................................27
Section 1.9 Separability Clause......................................................27
Section 1.10 Contracts (Rights of Third Parties) Act 1999.............................27
Section 1.11 Counterparts and Governing Language......................................27
Section 1.12 Governing Law............................................................27
Section 1.13 Legal Holidays...........................................................27
Section 1.14 Submission to Jurisdiction and Service of Process........................27
Article 2 THE NOTES...........................................................................28
Section 2.1 Form and Dating..........................................................28
Section 2.2 Execution and Authentication.............................................29
Section 2.3 Registrar and Paying Agents..............................................30
Section 2.4 Holders to Be Treated as Owners; Payments of Interest....................30
Section 2.5 Paying Agent to act upon instructions of the Trustee.....................31
Section 2.6 Noteholder Lists.........................................................32
Section 2.7 Issue, Transfer and Exchange.............................................32
Section 2.8 Replacement Notes........................................................36
Section 2.9 Intentionally Deleted....................................................37
i
Section 2.10 Fees, Duties and Taxes...................................................37
Section 2.11 Intentionally Deleted....................................................37
Section 2.12 Cancellation.............................................................37
Section 2.13 Defaulted Interest.......................................................37
Section 2.14 ISIN and CUSIP Numbers...................................................37
Section 2.15 Deposit of Moneys........................................................38
Article 3 SATISFACTION AND DISCHARGE..........................................................38
Section 3.1 Satisfaction and Discharge of Indenture..................................38
Section 3.2 Application of Trust Money...............................................39
Article 4 REMEDIES............................................................................40
Section 4.1 Events of Default........................................................40
Section 4.2 Acceleration of Maturity; Rescission and Annulment.......................41
Section 4.3 Covenant to Pay and Suits for Enforcement by Trustee.....................43
Section 4.4 Trustee May File Proofs of Claim.........................................43
Section 4.5 Trustee May Enforce Claims Without Possession of Notes...................44
Section 4.6 Application of Money Collected...........................................44
Section 4.7 Investment by Trustee....................................................45
Section 4.8 Limitation on Suits......................................................45
Section 4.9 Unconditional Right of Holders to Receive
Principal, Premium and Interest..........................................46
Section 4.10 Restoration of Rights and Remedies.......................................46
Section 4.11 Rights and Remedies Cumulative...........................................46
Section 4.12 Delay or Omission Not Waiver.............................................46
Section 4.13 Control by Holders.......................................................46
Section 4.14 Waiver of Past Defaults..................................................47
Section 4.15 Waiver of Stay, Extension or Usury Laws..................................47
Section 4.16 Judgment Currency........................................................47
ii
Article 5 THE TRUSTEE.........................................................................48
Section 5.1 Notice of Defaults.......................................................48
Section 5.2 Duties of Trustee.........................................48
Section 5.3 Rights of Trustee.........................................49
Section 5.4 Trustee Not Responsible for Recitals or Issuance of Notes................52
Section 5.5 Individual Rights of Trustee.............................................52
Section 5.6 Money Held in Trust......................................................53
Section 5.7 Compensation and Reimbursement...........................................53
Section 5.8 Resignation and Removal: Appointment of Successor........................54
Section 5.9 Acceptance of Appointment by Successor...................................55
Section 5.10 Merger, Conversion, Consolidation or Succession to Business..............56
Section 5.11 Separate and Co-Trustees.................................................56
Section 5.12 Trustee's Powers to be Additional........................................56
Article 6 HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER.....................................57
Article 7 CONSOLIDATION, MERGER AND SALE OF ASSETS............................................57
Section 7.1 Parent May Consolidate, Etc., Only on Certain Terms......................57
Section 7.2 Successor Substituted....................................................58
Article 8 SUPPLEMENTAL INDENTURES.............................................................58
Section 8.1 Supplemental Indentures Without Consent of Holders.......................58
Section 8.2 Supplemental Indentures with Consent of Holders..........................59
Section 8.3 Execution of Supplemental Indentures.....................................60
Section 8.4 Effect of Supplemental Indentures........................................60
Section 8.5 Reference in Notes to Supplemental Indentures............................60
Section 8.6 Notice of Supplemental Indentures........................................60
Article 9 COVENANTS 60
Section 9.1 Payment of Principal Premium, if any, and Interest.......................60
iii
Section 9.2 Maintenance of Office or Agency..........................................62
Section 9.3 Money for Note Payments..................................................62
Section 9.4 Corporate Existence......................................................63
Section 9.5 Payment of Taxes and Other Claims........................................63
Section 9.6 Maintenance of Properties................................................63
Section 9.7 Insurance................................................................63
Section 9.8 Statement by Officers as to Default......................................63
Section 9.9 Limitation on Indebtedness...............................................64
Section 9.10 Limitation on Restricted Payments........................................65
Section 9.11 Limitation on Issuances and Sales of
Capital Stock of Restricted Subsidiaries.................................67
Section 9.12 Limitation on Transactions with Affiliates...............................68
Section 9.13 Limitation on Liens......................................................68
Section 9.14 Issuances of Guarantees of Indebtedness by Subsidiaries..................69
Section 9.15 Purchase of Notes upon a Change of Control Triggering Event..............69
Section 9.16 Limitation on Sale of Assets.............................................70
Section 9.17 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries........................................71
Section 9.18 Limitation on Investments in Unrestricted Subsidiaries...................72
Section 9.19 Permitted Business.......................................................72
Section 9.20 The Issuer...............................................................72
Section 9.21 Provision of Financial Statements and Reports............................72
Section 9.22 Waiver of Certain Covenants..............................................73
Section 9.23 Additional Amounts.......................................................73
Section 9.24 Suspension of Certain Covenants During
Achievement of Investment Grade Status...................................74
Article 10 REDEMPTION OF NOTES................................................................75
Section 10.1 Right of Redemption......................................................75
iv
Section 10.2 Election to Redeem: Notice to Trustee....................................75
Section 10.3 Selection by Trustee of Notes to Be Redeemed.............................75
Section 10.4 Notice of Redemption to Holders of Notes.................................75
Section 10.5 Deposit of Redemption Price..............................................76
Section 10.6 Notes Payable on Redemption Date.........................................77
Section 10.7 Notes Redeemed in Part...................................................77
Article 11 COLLATERAL.........................................................................77
Section 11.1 Collateral...............................................................77
Section 11.2 Recording and Opinions...................................................79
Section 11.3 Possession and Use of Collateral.........................................80
Section 11.4 Release and Disposition of Collateral....................................80
Section 11.5 Disposition of Collateral Without Release................................80
Section 11.6 Priority of Liens........................................................81
Article 12 GUARANTEE..........................................................................81
Section 12.1 Guarantee................................................................81
Section 12.2 Severability.............................................................83
Section 12.3 Subrogation..............................................................83
Section 12.4 Reinstatement............................................................83
Section 12.5 Subsidiary Guarantors May Consolidate, etc. on Certain Terms.............83
Section 12.6 Release of the Guarantors................................................84
Section 12.7 Execution and Delivery of Guarantee......................................84
Section 12.8 Benefits Acknowledged....................................................84
Article 13 DEFEASANCE AND COVENANT DEFEASANCE.................................................84
Section 13.1 Issuer's Option to Effect Defeasance
or Covenant Defeasance...................................................84
Section 13.2 Defeasance and Discharge.................................................84
Section 13.3 Covenant Defeasance......................................................85
v
Section 13.4 Conditions to Defeasance or Covenant Defeasance..........................85
Section 13.5 Deposited Money and Government Securities to Be Held in Trust;
Other Miscellaneous Provisions...........................................86
Section 13.6 Reinstatement............................................................87
EXHIBITS A to ▇
▇▇▇▇▇▇▇▇▇ ▇ & ▇
▇▇
▇▇▇▇▇▇▇▇▇, dated as of 23 December 2002 among NETIA HOLDINGS B.V., a
Netherlands private company (the "ISSUER"), having its corporate seat at
Amsterdam and its principal office at ▇▇▇▇▇▇▇▇▇▇ ▇▇▇-▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, NETIA HOLDINGS S.A., a Polish joint-stock company (the "PARENT"),
NETIA TELEKOM S.A. ("TELEKOM"), NETIA SOUTH Sp. z o.o. ("SOUTH"), having their
principal offices at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ (each the
"GUARANTOR" and together, the "GUARANTORS"), THE BANK OF NEW YORK, acting
through its London branch, at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ as
trustee (the "TRUSTEE") and ING BANK ▇▇▇▇▇▇ ▇.▇., having its registered office
at ▇▇. ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, as security agent (the "SECURITY
AGENT").
RECITALS OF THE ISSUER AND THE GUARANTORS
The Issuer has duly authorized the creation of an issue of up to
EUR50,000,000 in principal amount of its 10% Senior Secured Notes due 2008 (the
"INITIAL NOTES" and, together with any capitalized interest in respect of a
Payment-in-Kind Election, the "NOTES"), of substantially the tenor and amounts
hereinafter set forth, and to provide therefor the Issuer has duly authorized
the execution and delivery of this Indenture.
The Guarantors have duly authorized the full and unconditional
guarantee of the Notes (the "GUARANTEE").
All things necessary have been done to make the Notes, when duly
executed by the Issuer, authenticated by the Principal Paying Agent and
delivered hereunder by the Issuer, the valid obligations of the Issuer and to
make this Indenture a valid agreement of the Issuer, in accordance with the
terms of the Notes and the Indenture.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Notes by the Holders (as defined herein) thereof, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
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 accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Generally Accepted Accounting
Principles ("GAAP"); and
(c) 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 or other subdivision.
"ACQUIRED INDEBTEDNESS" means Indebtedness of a Person (a) existing
at the time such Person becomes a Restricted Subsidiary or (b) assumed in
connection with the acquisition of assets from such Person, in each case, other
than indebtedness incurred in connection with, or in contemplation of, such
1
Person becoming a Subsidiary or such acquisition; provided that, for purposes of
Section 9.9, such Indebtedness shall be deemed to be incurred on the date of the
related acquisition of assets from any Person or the date the acquired Person
becomes a Subsidiary.
"ACTION" when used with respect to any Holder, has the meaning
specified in Section 1.4(a).
"ADDITIONAL AMOUNTS" has the meaning specified in Section 9.23.
"AFFILIATE" means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common control with such specified Person or (ii) any other Person
that owns, directly or indirectly, 25% or more of such specified Person's Voting
Stock or any executive officer or director of any such specified Person or other
Person, or with respect to any natural Person, any person having a relationship
with such Person by blood, marriage or adoption not more remote than first
cousin. 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.
"AGENCY AGREEMENT" means the agreement appointing the initial
Principal Paying Agent, Paying Agent, Registrar, Security Agent and Transfer
Agents in relation to the Notes of the date hereof and any other agreement for
the time being in force appointing successor paying agents, registrars, security
agents and/or transfer agents in relation to the Notes, or in connection with
their duties, the terms of which have previously been approved in writing by the
Trustee, together with any agreement for the time being in force amending or
modifying with the prior written approval of the Trustee any of the aforesaid
agreements in relation to the Notes.
"ANNUALIZED CONSOLIDATED OPERATING CASH FLOW" means Consolidated
Operating Cash Flow for the latest fiscal quarter for which consolidated
financial statements of Parent are available immediately preceding the date of
the transaction giving rise to the need to calculate Annualized Consolidated
Operating Cash Flow (the "TRANSACTION DATE") multiplied by four. For purposes of
calculating "Consolidated Operating Cash Flow" for any fiscal quarter for
purposes of this definition, (i) any Subsidiary that is a Subsidiary on the
Transaction Date shall be deemed to have been a Subsidiary at all times during
such fiscal quarter and (ii) any Subsidiary that is not a Subsidiary on the
Transaction Date shall be deemed not to have been a Subsidiary at any time
during such fiscal quarter.
"APPLICABLE PROCEDURES" means, with respect to any transfer, exchange
or other transaction involving a Global Note or beneficial interest therein, the
rules and provisions of Euroclear and Clearstream, Luxembourg with respect to
the Global Notes, in each case, to the extent applicable to such transaction and
as in effect at the time of such transaction.
"APPOINTEE" means any attorney, manager, agent, delegate or other
person appointed by the Trustee under this Indenture which, for the avoidance of
doubt, includes the Security Agent.
"ASSET SALE" means any sale, issuance, conveyance, transfer, lease or
other disposition (including, without limitation, by way of merger,
consolidation or sale and leaseback transaction) (collectively, a "TRANSFER"),
directly or indirectly, in one or a series of related transactions, of (i) any
Capital Stock of any Subsidiary; (ii) all or substantially all of the properties
and assets of Parent or its Subsidiaries; or (iii) any other properties or
assets of Parent or any Subsidiary, other than in the ordinary course of
business. For the purposes of this definition, the term "Asset Sale" shall not
2
include any transfer of properties or assets (A) that is governed by Article 7,
(B) that have become worn out, obsolete or damaged and are no longer suitable
for use in connection with the business of Parent or any Restricted Subsidiary
and that are disposed of in the ordinary course of business, (C) of Parent to
any Restricted Subsidiary, or of any Restricted Subsidiary to Parent or any
Restricted Subsidiary, in each case, in accordance with the terms of this
Indenture, (D) having a fair market value of less than (euro)1.0 million (or, to
the extent not denominated in Euros, the Euro equivalent thereof), or (E) any
transfer by Parent or a Subsidiary of property or equipment to a Person who is
not an Affiliate of Parent in exchange for property or equipment that has a fair
market value at least equal to the fair market value of the property or
equipment so transferred; provided that, in the event of a transfer described in
this clause (E) Parent shall deliver to the Trustee an Officers' Certificate
certifying that such exchange complies with this clause (E).
"ATTRIBUTABLE DEBT" means, with respect to any lease at the time of
determination, the present value (discounted at the interest rate implicit in
the lease or, if not known, at the rate borne by the Notes, compounded
semi-annually) of the obligations of the lessee of the property subject to such
lease for rental payments during the remaining term of the lease included in
such transaction, including any period for which such lease has been extended or
may, at the option of the lessor, be extended, or until the earliest date on
which the lessee may terminate such lease without penalty or upon payment of
penalty (in which case the rental payments shall include such penalty), after
excluding from such rental payments all amounts required to be paid on account
of maintenance and repairs, insurance, taxes, assessments, water utilities and
similar charges.
"AUTHORIZED AGENT" means WG&M Secretaries Limited or any other
successor Authorized Agent appointed in England pursuant to Section 1.14.
"AVERAGE LIFE" means, as of the date of determination with respect to
any Indebtedness (other than a Derivative Transaction) the quotient obtained by
dividing (a) the sum of the products of (i) the number of years from the date of
determination to the date or dates of each successive scheduled principal
payment (including, without limitation, any sinking fund requirements) of such
Indebtedness multiplied by (ii) the amount of each such principal payment by (b)
the sum of all such principal payments.
"BANKRUPTCY CODE" means any law relating to bankruptcy, insolvency,
receivership, winding-up, liquidation, reorganisation or relief of debtors or
any amendment to, succession to, or change in any such law, including without
limitation the Bankruptcy Act of Title 11 of the U.S. Code, as amended from time
to time.
"BOARD OF DIRECTORS" means the managing board of the Issuer.
"BOARD RESOLUTION" means (i) if issued by the Issuer, a copy of a
resolution duly adopted by the Board of Directors and not revoked or withdrawn
and (ii) if issued by Parent, a copy of a resolution certified by the duly
authorized Secretary or by an Assistant Secretary of Parent to have been duly
adopted by the Management Board and to be in full force and effect on the date
of such certification and, in each case, delivered to the Trustee.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the city of New York,
New York, the city of London, England and Warsaw, Poland are authorized or
obligated by law or executive order to close and which is a day on which the
TARGET system is operating.
"CAPITAL STOCK" means, with respect to any Person, any and all
shares, interests, partnership interests, participations, rights in or other
equivalents (however designated) of such Person's equity interest, and any
3
rights (other than debt securities convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock, whether now
outstanding or issued after the date of this Indenture.
"CAPITALIZED LEASE OBLIGATION" means, with respect to any Person, any
obligation of such Person under a lease of (or other agreement conveying the
right to use) any property (whether real, personal or mixed) that is required to
be classified and accounted for as a capital lease obligation under GAAP.
"CASH EQUIVALENTS" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the United States of America, the Federal Republic of Germany or the Republic
of Poland or any agencies or instrumentalities thereof (provided that the full
faith and credit of the United States of America, the Federal Republic of
Germany or the Republic of Poland, as the case may be, is pledged in support
thereof); (ii) time deposit accounts, money market deposits or certificates of
deposit with a maturity of 180 days or less of ▇▇ ▇▇▇▇▇▇ Chase Bank, Citibank
(Poland) S.A., ING Bank N.V., ABN Amro (Poland), Bank Handlowy w Warszawie S.A.,
BRE or any other financial institution that is a (a) member of the Federal
Reserve System or (b) bank or trust company which is organized under the laws of
the Republic of Poland or any other country recognized by the United States of
America and whose long-term debt is rated "A-" or higher according to S&P or
"A-3" or higher according to ▇▇▇▇▇'▇, and in the case of each of (a) and (b)
above having combined capital and surplus and undivided profits of not less than
$500.0 million (or, to the extent not denominated in U.S. Dollars, the U.S.
Dollar Equivalent thereof); (iii) commercial paper with a maturity of 180 days
or less issued by a corporation that is not an Affiliate of Parent and is
organized under the laws of any state of the United States, the District of
Columbia or rated at least A-1 by S&P or at least P-1 by ▇▇▇▇▇'▇; (iv)
repurchase obligations with a term of not more than seven days for underlying
securities issued or directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof (provided that the
full faith and credit of the United States of America is pledged in support
thereof) and entered into with a bank meeting the qualifications described in
clause (ii) above; (v) any evidence of indebtedness with a maturity of 180 days
or less issued by the National Bank of Poland; and (vi) money market funds at
least 95% of the assets of which constitute Cash Equivalents of the kinds
described in clauses (i) through (v) of this definition.
"CHANGE OF CONTROL" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), is or becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person shall be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 40.0% of the total
outstanding Voting Stock of Parent; (b) Parent consolidates with, or merges with
or into another Person or conveys, transfers, leases or otherwise disposes of
all or substantially all of its assets to any Person, or any Person consolidates
with or merges with or into Parent, in any such event pursuant to a transaction
in which the outstanding Voting Stock of Parent is converted into or exchanged
for cash, securities or other property, other than any such transaction where
(i) the outstanding Voting Stock of Parent is not converted or exchanged at all
(except to the extent necessary to reflect a change in the jurisdiction of
incorporation of Parent) or is converted into or exchanged for (A) Voting Stock
(other than Redeemable Capital Stock) of the surviving or transferee corporation
or (B) Voting Stock (other than Redeemable Capital Stock) of the surviving or
transferee corporation and cash, securities and other property (other than
Capital Stock of the Surviving Entity) in an amount that could be paid by Parent
as a Restricted Payment under Section 9.10 and (ii) immediately after such
transaction, no "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act) is the "beneficial owner" (as defined in Rules
4
13d-3 and 13d-5 under the Exchange Act, except that a Person shall be deemed to
have "beneficial ownership" of all securities that such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 40.0% of the total outstanding
Voting Stock of the surviving or transferee corporation; and (c) Parent is
liquidated or dissolved or a special resolution is passed by the shareholders of
Parent approving the plan of liquidation or dissolution other than in a
transaction which complies with Article 7.
"CHANGE OF CONTROL DATE" has the meaning specified in Section 9.15.
"CHANGE OF CONTROL OFFER" has the meaning specified in Section 9.15.
"CHANGE OF CONTROL TRIGGERING EVENT" means the occurrence of both a
Change of Control and a Rating Decline.
"CHANGE OF PRIORITY AGREEMENTS" means the agreements to be entered
into by the Trustee, the Senior Bank Creditors and the relevant Subsidiaries in
the circumstances contemplated in Section 11.6, substantially in the form of the
exhibits D to V of this Indenture.
"CLEARSTREAM, LUXEMBOURG" means Clearstream, Luxembourg, societe
anonyme.
"COLLATERAL" means the Deposited Amount, the Pledged Assets, the
Pledged Shares, the Mortgaged Property and the Conditionally Assigned Accounts
and Receivables.
"COMMISSION" means the U.S. Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act or, if at any time
after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"COMMON DEPOSITARY" means The Bank of New York, acting through its
London Branch or its nominee and their successors acting as common depositary
for Euroclear and Clearstream, Luxembourg.
"CONDITIONALLY ASSIGNED ACCOUNTS AND RECEIVABLES" means (i) present
and future receivables and (ii) rights to all bank accounts of Parent and the
Pledge Subsidiaries, and irrevocable powers of attorney to make security
assignments in future to the Trustee.
"CONSOLIDATED ADJUSTED NET INCOME" means, for any period, the
consolidated net income (or loss) of Parent and all Restricted Subsidiaries for
such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto), (b) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than Parent or a Restricted Subsidiary), including
Unrestricted Subsidiaries, in which Parent or any Restricted Subsidiary has an
ownership interest, except to the extent of the amount of dividends or other
distributions actually paid to Parent or any Restricted Subsidiary in cash
dividends or distributions during such period, (d) net income (but not loss) of
any Person combined with Parent or any Restricted Subsidiary on a "pooling of
interests" basis attributable to any period prior to the date of combination,
(e) the net income of any Restricted Subsidiary, to the extent that the
declaration or payment of dividends or similar distributions by such Restricted
Subsidiary is not at the date of determination permitted, directly or
indirectly, by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
5
applicable to such Restricted Subsidiary or its stockholders and (f) any gain or
loss, net of taxes, realized upon the termination of any employee benefit plan.
"CONSOLIDATED INDEBTEDNESS TO ANNUALIZED CONSOLIDATED OPERATING CASH
FLOW RATIO" means, at any date of determination, the ratio of (i) the aggregate
amount of Indebtedness of Parent and the Restricted Subsidiaries outstanding at
the date of determination as determined on a consolidated basis in accordance
with GAAP to (ii) Annualized Consolidated Operating Cash Flow for the latest
full fiscal quarter for which consolidated financial statements of Parent are
available preceding the date of the transaction giving rise to the need to
calculate the Consolidated Indebtedness to Annualized Consolidated Operating
Cash Flow Ratio.
"CONSOLIDATED INTEREST EXPENSE" of Parent means, for any period,
without duplication, the sum of (a) the interest expense of Parent and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization or accretion of debt discount, (ii) the net cost of Derivative
Transactions (including amortization of discounts), (iii) the interest portion
of any deferred payment obligation, (iv) accrued interest, (v) the consolidated
amount of any interest capitalized by Parent and (vi) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of Parent and its Restricted Subsidiaries paid, accrued and/or scheduled to be
paid or accrued during such period, plus (c) cash and non-cash dividends due
(whether or not declared) on Redeemable Capital Stock or Preferred Stock by
Parent and any Restricted Subsidiary (to any Person other than Parent and any
Wholly Owned Subsidiary), in each case as determined on a consolidated basis in
accordance with GAAP; provided that the Consolidated Interest Expense
attributable to interest on any Indebtedness computed on a pro forma basis and
(A) bearing a floating interest rate shall be computed as if the rate in effect
on the date of computation had been the applicable rate for the entire period
and (B) that was not outstanding during the period for which the computation is
being made but which bears, at the option of Parent, a fixed or floating rate of
interest, shall be computed by applying, at the option of Parent, either the
fixed or the floating rate.
"CONSOLIDATED NET WORTH" means, with respect to any specified Person
as of any date, the sum of: (i) the consolidated equity of the common
stockholders of such Person and its consolidated Subsidiaries as of such date;
plus (ii) the respective amounts reported on such Person's balance sheet as of
such date with respect to any series of Preferred Stock (other than Redeemable
Capital Stock) that by its terms is not entitled to the payment of dividends
unless such dividends may be declared and paid only out of net earnings in
respect of the year of such declaration and payment, but only to the extent of
any cash received by such Person upon issuance of such Preferred Stock.
"CONSOLIDATED OPERATING CASH FLOW" means, with respect to any period,
the Consolidated Adjusted Net Income for such period (a) increased by (to the
extent included in computing Consolidated Adjusted Net Income) the sum of (i)
the Consolidated Tax Expense for such period (other than taxes attributable to
extraordinary, unusual or non-recurring gains or losses); (ii) Consolidated
Interest Expense for such period; (iii) depreciation of Parent and the
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; (iv) amortization of Parent and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; and (v) any other non-cash charges that were deducted in computing
Consolidated Adjusted Net Income (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period) of Parent and
Restricted Subsidiaries for such period in accordance with GAAP and (b)
decreased by any non-cash gains that were included in computing Consolidated
Adjusted Net Income.
6
"CONSOLIDATED TAX EXPENSE" means, for any period, the provision for
national, federal, state, provincial and local income taxes of Parent and all
Restricted Subsidiaries for such period as determined on a consolidated basis in
accordance with GAAP.
"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 ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇.
"CURRENCY AGREEMENT" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements, including, without limitation, hedging arrangements
to be entered into in connection with Indebtedness incurred under Credit
Facilities, entered into by Parent or any of its Restricted Subsidiaries
designed, in each case, to protect against or manage exposure to fluctuations in
currency exchange rates.
"DEFAULT" means any event that after notice or passage of time or
both would be an Event of Default.
"DEFINITIVE NOTE" means a Restricted Note or a Regulation S Note
registered in the Register, in or substantially in the form of Exhibit A,
Exhibit B or Exhibit C hereto, respectively, but without the Global Note Legend
and Schedule A thereto.
"DEPOSIT ACCOUNT" has the meaning specified in Section 11.1.
"DEPOSIT AGREEMENT" means the escrow agreement between Parent, the
Trustee, and the Security Depositary dated 20 December 2002, regarding the
deposit of the Deposited Amount (as defined in Section 11.1).
"DEPOSIT COMPLETION" has the meaning specified in Section 11.1.
"DEPOSIT COMPLETION DATE" has the meaning specified in Section 11.1.
"DEPOSITARY" means each of Euroclear and Clearstream, Luxembourg and
their respective nominees and successors.
"DEPOSITED AMOUNT" means, in aggregate, all amounts deposited in the
Deposit Account pursuant to Section 11.1.
"DERIVATIVE TRANSACTION" means (a) any transaction (including an
agreement with respect thereto), including any Hedging Transaction, (i) which is
a rate swap transaction, swap option, basis swap, forward rate transaction,
commodity swap, commodity option, equity or equity index swap, equity or equity
index option, bond option, interest rate option, foreign exchange transaction,
cap transaction, floor transaction, collar transaction, currency swap
transaction, cross-currency swap transaction, currency option, credit protection
transaction, credit swap, credit default swap, credit default option, total
return swap, credit spread transaction, repurchase transaction, reverse
repurchase transaction, buy/sell-back transaction, securities lending
transaction, or forward purchase or sale of a security, commodity or other
financial instrument or interest (including any option with respect to any of
these transactions) or (ii) any forward, swap or option or similar wholesale
financial markets transaction (and any multiple or combination of these,
including any combination with a spot transaction) where payments by one party
to another are a function of changes in an underlying price, rate, index or risk
specified for that purpose or which require the delivery of any underlying asset
or risk by one party to another.
7
"DISINTERESTED MEMBER" means, with respect to any transaction or
series of transactions in respect of which the Management Board is required to
deliver a resolution of the Management Board under this Indenture, a member of
the Management Board who does not have any material direct or indirect financial
interest in or with respect to such transaction or series of transactions.
"DTC" means The Depository Trust Company.
"DTC NOMINEE" means Cede & Co, or such other Person as may be
nominated by DTC.
"DTC RESTRICTED GLOBAL NOTE" means a Global Note, in or substantially
in the form set forth in Exhibit A, issued in the name of the DTC Nominee,
representing the Notes to be delivered to holders of the Existing Notes who hold
a direct or indirect interest in the Existing Rule 144A Global Notes .
"EURO" or "(EURO)" means the lawful currency of the member states of
the European Union that adopted the single currency in accordance with the
Treaty of Rome establishing the European Economic Community, as amended by the
Treaty of the European Union, signed at Maastricht on 7 February 1992.
"EUROCLEAR" means Euroclear Bank, S.A./N.V., as operator of the
Euroclear System.
"EURO EQUIVALENT" means, with respect to any monetary amount in a
currency other than the Euro, at any time for the determination thereof, the
amount of Euros obtained by converting such foreign currency involved in such
computation into Euros at the spot rate for the purchase of Euros with the
applicable foreign currency as quoted by Reuters at approximately 11:00 a.m.
(London time) on the date two business days prior to such determination. For
purposes of determining (a) whether any Indebtedness can be incurred (including
Permitted Indebtedness), any Investment can be made and any transaction set
forth in Section 9.12 can be undertaken (a "TESTED TRANSACTION"), the Euro
Equivalent of such Indebtedness, Investment or transaction described in Section
9.12 shall be determined on the date incurred, made or undertaken and, no
subsequent change in the Euro Equivalent shall in and of itself cause such
Tested Transaction to have been incurred, made or undertaken in violation of
this Indenture.
"EVENT OF DEFAULT" has the meaning specified in Section 4.1.
"EXCESS PROCEEDS" has the meaning specified in Section 9.16(b).
"EXCHANGE ACT" means the U.S. Securities Exchange Act of 1934, as
amended.
"EXECUTION OF THE COLLATERAL" has the meaning specified in Section
11.1.
"EXISTING NOTES" means those series of notes set forth in Schedule I
hereto.
"EUROPEAN RESTRICTED GLOBAL NOTE" means a Global Note in or
substantially in the form set forth in Exhibit B issued in the name of the
Common Depositary, representing the Notes to be delivered to holders of the
Existing Notes who hold a direct or indirect interest in the Existing Rule 144A
Global Notes .
"EXECUTION OF THE COLLATERAL" means the completion of the process
pursuant to which Parent has, and has procured that the Pledge Subsidiaries
have, as the case may be, (using the forms of the applicable Security Documents)
(i) executed and filed registered pledges in Poland for the benefit of the
Trustee over the Pledged Assets to become effective upon registration by the
applicable courts in Poland; (ii) executed and filed Mortgages on the Mortgaged
8
Property for the benefit of the Trustee to become effective upon registration by
the applicable courts in Poland; (iii) established ordinary (bridging) pledges
for the benefit of the Trustee over the Pledged Shares until registered pledges
for the benefit of the Trustee over the Pledged Shares are registered by the
applicable courts in Poland; and (iv) executed conditional security assignments
of Conditionally Assigned Accounts and Receivables for the benefit of the
Trustee, provided, however, that those conditional security assignments shall
not become effective for the benefit of the Trustee until an Event of Default
has occurred and which is not cured within any applicable grace period.
"EXISTING REGULATION S GLOBAL NOTES" means the global notes issued in
respect of those series of notes set forth in Schedule A hereto identified in
the right column thereof as being represented by a Regulation S global note.
"EXISTING RULE 144A GLOBAL NOTES" means the global notes issued in
respect of those series of notes set forth in Schedule A hereto identified in
the right column thereof as being represented by a Rule 144A global note.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" means generally
accepted accounting principles in the United States on the date of this
Indenture.
"GLOBAL NOTE" means, as the context may require, any of the DTC
Restricted Global Note, the European Restricted Global Note, or the Regulation S
Global Note, .
"GLOBAL NOTE LEGEND" means, in respect of the DTC Restricted Global
Note, the European Restricted Global Note and the Regulation S Global Note, the
legend identified under that name in each of Exhibit A, Exhibit B and Exhibit C.
"GOVERNMENT SECURITIES" means securities that are (x) direct
obligations of the United States of America or a member of the European Union
(other than securities of Greece, Spain and Portugal) for the payment of which
its full faith and credit is pledged or (y) obligations of a person controlled
or supervised by and acting as an agency or instrumentality of the United States
of America or a member of the European Union (other than Greece, Spain or
Portugal), the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such member of the
European Union (other than Greece, Spain or Portugal), as appropriate, which, in
either case, are not callable or redeemable at the option of the issuer thereof.
"GUARANTEE" means, as applied to any obligation, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"GUARANTEE" means (a) the guarantee by the Guarantors specified in
the recitals to this Indenture and (b) any guarantee executed pursuant to
Section 9.14 and in accordance with Section 8.1(4).
"GUARANTORS" means (a) Parent, Telekom and South respectively and (b)
any Person who executes a supplemental indenture providing for a Guarantee in
accordance with Section 8.1(4).
9
"HEDGING TRANSACTION" means, with respect to any Person, any
transaction entered into by such Person which is (i) an Interest Rate Agreement,
(ii) a Currency Agreement, (iii) any combination of a Currency Agreement and an
Interest Rate Agreement or (iv) with respect to Parent and its Restricted
Subsidiaries, any other Derivatives Transaction that has been approved by the
Board of Directors and in respect of which the Board of Directors has obtained a
written opinion of an independent financial adviser confirming that such
Derivatives Transaction is appropriate for the hedging purposes of Parent or its
Restricted Subsidiaries and reduces a risk of loss to such Person.
"HOLDER" means (a) in the case of the European Restricted Global Note
and the Regulation S Global Note, the Common Depositary (b) in the case of the
DTC Restricted Global Note, the DTC Nominee and (c) in the case of any
Definitive Note, the Person in whose name such Note is registered in the
Register.
"INDEBTEDNESS" means, with respect to any Person, without
duplication: (a) all liabilities, contingent or otherwise, of such Person (i)
for borrowed money (including overdrafts), (ii) in connection with any letters
of credit and acceptances issued under letter of credit facilities, acceptance
facilities or other similar facilities, (iii) evidenced by bonds, notes,
debentures or other similar instruments, (iv) for the deferred purchase price of
property or services or created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person, but
excluding trade accounts payable arising in the ordinary course of business or
guarantees thereof or (v) for Capitalized Lease Obligations; (b) the net
obligations of such Person under or in respect of any Derivative Transaction;
(c) all indebtedness referred to in (but not excluded from) the preceding
clauses of other Persons and all dividends of other Persons, the payment of
which is secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or with
respect to property (including, without limitation, accounts and contract
rights) owned by such Person, even though such Person has not assumed or become
liable for the payment of such Indebtedness (the amount of such obligation being
deemed to be the lesser of the value of such property or asset or the amount of
the obligation so secured); (d) all guarantees by such Person of Indebtedness
referred to in this definition of any other Person; and (e) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends.
For the purposes hereof and for the avoidance of doubt, the amount of any
Indebtedness outstanding as of any date shall be: (x) the accreted value
thereof, in the case of any Indebtedness issued with original issue discount;
and (y) the principal amount thereof, together with any interest thereon that is
more than 30 days past due, in the case of any other Indebtedness. For purposes
hereof, the "maximum fixed repurchase price" of any Redeemable Capital Stock
which does not have a fixed repurchase price shall be calculated in accordance
with the terms of such Redeemable Capital Stock as if such Redeemable Capital
Stock were purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based upon, or
measured by, the fair market value of such Redeemable Capital Stock, such fair
market value shall be determined in good faith by the board of directors of the
issuer of such Redeemable Capital Stock. Notwithstanding the foregoing, trade
accounts and accrued liabilities arising in the ordinary course of business and
any liability for national, federal, state or local taxes or other taxes owed by
such Person will not be considered Indebtedness for purposes of this definition.
"INDENTURE" means this instrument as originally executed and as it
may be supplemented or amended from time to time by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"INITIAL NOTES" has the meaning specified in the recitals to this
Indenture.
10
"INTERCREDITOR DEED" has the meaning specified in Section 11.6.
"INTEREST PAYMENT DATE" means 23 June and 23 December of each year,
commencing 23 June 2003.
"INTEREST RATE AGREEMENT" means any interest rate protection
agreements and other types of interest rate hedging agreements or arrangements
(including, without limitation, interest rate swaps, caps, floors, collars and
other similar agreements) designed to protect against or manage exposure to
fluctuations in interest rates.
"INVESTMENT" means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other securities or evidences of Indebtedness issued or owned by,
any other Person (whether actual or contingent) and all other items that would
be classified as investments on a balance sheet prepared in accordance with
GAAP. In addition, the fair market value of the net assets of any Subsidiary at
the time that such Subsidiary is designated an Unrestricted Subsidiary shall be
deemed to be an "Investment" made by Parent in such Unrestricted Subsidiary at
such time. "Investments" shall exclude extensions of trade credit on
commercially reasonable terms in accordance with normal trade practices.
"INVESTMENT GRADE STATUS" exists as of any time if at such time (i)
the rating assigned to the Notes by ▇▇▇▇▇'▇ is at least Baa3 (or the equivalent)
or higher and (ii) the rating assigned to the Notes by S&P is at least BBB- (or
the equivalent) or higher.
"INVESTMENT GRADE STATUS PERIOD" has the meaning specified in Section
9.24.
"ISSUE DATE" means the date of this Indenture.
"ISSUER" means the Person named as the "Issuer" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter "Issuer"
shall mean such successor Person.
"JUNIOR LIABILITIES" has the meaning specified in Section 11.6.
"JUNIOR SECURITY" has the meaning specified in Section 11.6.
"LIABILITY" means any loss, damage, cost, charge, claim, demand,
expense, judgment, action, proceeding or other liability whatsoever (including,
without limitation, in respect of taxes (other than withholding taxes and taxes
on overall net income), duties, levies, imposts and other like charges) and
including any value added tax or similar tax charged or chargeable in respect
thereof and legal fees and expenses on a full indemnity basis.
"LIEN" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation, assignment for
security, claim, or preference or priority or other encumbrance upon or with
respect to any property of any kind, real or personal, movable or immovable, now
owned or hereafter acquired. A Person shall be deemed to own subject to a Lien
any property which such Person has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement.
"LUXEMBOURG PAYING AGENT" means The Bank of New York (Luxembourg)
S.A. and any successor or other paying agent appointed in Luxembourg.
11
"MANAGEMENT BOARD" means the Management Board of Parent.
"MATURITY DATE" means, with respect to any Note, the date on which
any principal of such Note becomes due and payable as therein or herein
provided, whether at the Stated Maturity with respect to such principal or by
declaration of acceleration, call for redemption or purchase or otherwise.
"MINIMUM REDEMPTION AMOUNT" means the product of (euro)1,000 (or the
prevailing denomination from time to time following a Payment-in-Kind Election)
and 1,000 (one thousand).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc. and its successors.
"MORTGAGE" means a mortgage, deed of trust, assignment of leases and
rents or other security document granting a Lien on any Mortgaged Property.
"MORTGAGED PROPERTY" means all real estate assets of Parent and the
Pledge Subsidiaries with a book value at the date of first issuance of Notes
under this Indenture of at least PLN 2,000,000.
"NET CASH PROCEEDS" means (a) with respect to any Asset Sale, the
proceeds thereof in the form of cash or Cash Equivalents including payments in
respect of deferred payment obligations when received in the form of, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to Parent or any
Restricted Subsidiary), net of (i) brokerage commissions and other fees and
expenses (including fees and expenses of legal counsel and investment banks)
related to such Asset Sale, (ii) provisions for all taxes payable as a result of
such Asset Sale, (iii) payments made to retire Indebtedness where payment of
such Indebtedness is secured by the assets or properties which are the subject
of such Asset Sale, (iv) amounts required to be paid to any Person (other than
Parent or any Restricted Subsidiary) owning a beneficial interest in the assets
subject to the Asset Sale and (v) appropriate amounts to be provided by Parent
or any Restricted Subsidiary, as the case may be, as a reserve required in
accordance with GAAP against any liabilities associated with such Asset Sale and
retained by Parent or any Restricted Subsidiary, as the case may be, after such
Asset Sale, including, without limitation, pension and other post-employment
benefit liabilities, liabilities related to environmental matters and
liabilities under any indemnification obligations associated with such Asset
Sale, all as reflected in an Officer's Certificate delivered to the Trustee and
(b) with respect to any issuance or sale of Capital Stock or options, warrants
or rights to purchase Capital Stock, or debt securities or Redeemable Capital
Stock that have been converted into or exchanged for Qualified Capital Stock, as
referred to under Section 9.10, the proceeds of such issuance or sale in the
form of cash or Cash Equivalents, including payments in respect of deferred
payment obligations when received in the form of, or stock or other assets when
disposed for, cash or Cash Equivalents (except to the extent that such
obligations are financed or sold with recourse to Parent or any Subsidiary), net
of attorneys' fees, accountants' fees and brokerage, consultation, underwriting
and other fees and expenses actually incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"NOTES" has the meaning stated in the first recital of this Indenture
and more particularly means any Notes authenticated and delivered under this
Indenture.
"OFFICER'S CERTIFICATE" means (i) with respect to the Issuer, a
certificate signed by a member of the Board of Directors or (ii) with respect to
Parent, a certificate signed by any of the following members of the Management
Board: the Chairman, the President or a Vice President, and by the Chief
12
Financial Officer, the Treasurer, the Assistant Treasurer, the Secretary or an
Assistant Secretary and, in each case, delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Issuer or Parent, and may include an employee of the Issuer or
Parent, as applicable, and shall, in either case, be acceptable to the Trustee.
"OUTSTANDING" when used with respect to the Notes, means, as of the
date of determination, all Notes that have been authenticated and delivered
under this Indenture, except:
(d) Notes that have been cancelled by the Principal Paying Agent or
delivered to the Principal Paying Agent for cancellation;
(e) Notes, or portions thereof, for whose payment or redemption money
in the necessary amount has been deposited with the Trustee or any Paying Agent
(other than the Issuer) in trust or set aside and segregated in trust by the
Issuer (if the Issuer shall at such date then be acting as Paying Agent) for the
Holders of such Notes; provided that, if such Notes are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(f) Notes, except to the extent provided in Sections 13.2 and 13.3,
with respect to which the Issuer has effected defeasance and/or covenant
defeasance as provided in Article 13; and
(g) Notes which have been issued pursuant to Section 2.8 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect of
which there shall have been presented to the Trustee proof satisfactory to it
that such Notes are held by a bona fide purchaser in whose hands the Notes are
valid obligations of the Issuer;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, Notes owned by
the Issuer or Parent or any other obligor upon the Notes or any Affiliate of the
Issuer or Parent 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 Notes which the
Trustee knows to be so owned shall be so disregarded. Notes 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 Notes and that the pledgee is not the Issuer or Parent or
any other obligor upon the Notes or any Affiliate of the Issuer or Parent or
such other obligor.
"PARTICIPANT" means, with respect to Euroclear, Persons who have
accounts with Euroclear, with respect to Clearstream, Luxembourg, Persons who
have accounts with Clearstream, Luxembourg and, with respect to the DTC, Persons
who have accounts with the DTC.
"PAYING AGENT" means the U.S. Paying Agent, any successor thereof,
the Luxembourg Paying Agent, any successor thereof, the Principal Paying Agent,
any successor thereof, and any other Person (including the Issuer acting as
Paying Agent, except that, for purposes of Article 12, the Paying Agent shall
not be the Issuer or a Subsidiary of Parent or an Affiliate of any of them),
13
appointed by the Issuer pursuant to the Agency Agreement to pay the principal of
(and premium, if any) or interest on any Notes on behalf of the Issuer.
"PAYMENT-IN-KIND ELECTION" has the meaning specified in Section 9.1.
"PERMITTED INDEBTEDNESS" means any of the following Indebtedness of
Parent and its Restricted Subsidiaries:
(h) Indebtedness of the Issuer pursuant to the Notes including any
interest on the Notes that is capitalized upon a Payment-in-Kind Election
pursuant to Section 9.1 issued upon a Payment-in-Kind Election, and of Parent,
South and Telekom pursuant to the Guarantee of the Notes;
(i) Indebtedness of Parent and any Restricted Subsidiaries
outstanding on the Issue Date;
(j) Indebtedness of Parent owing to any Restricted Subsidiary (but
only so long as such Indebtedness is held by such Restricted Subsidiary);
provided that any Indebtedness of Parent owing to any such Restricted Subsidiary
is subordinated in right of payment from and after such time as the Notes shall
become due and payable (whether at Stated Maturity, acceleration or otherwise)
to the payment and performance of Parent's obligations under the Guarantee;
provided further that any transaction pursuant to which any Restricted
Subsidiary, to which such Indebtedness is owed, ceases to be a Restricted
Subsidiary shall be deemed to be an incurrence of such Indebtedness by Parent
that is not permitted by this clause (c); provided that any disposition or
transfer of any such Indebtedness to a Person (other than a disposition or
transfer to the Parent, the Issuer or any Restricted Subsidiary) shall be deemed
to be an incurrence of such Indebtedness not permitted hereunder;
(k) Indebtedness of any Restricted Subsidiary to Parent or another
Restricted Subsidiary, provided that any disposition or transfer of any such
Indebtedness to a Person (other than a transfer to Parent or another Restricted
Subsidiary) shall be deemed to be an incurrence of Indebtedness not permitted
hereunder;
(l) Indebtedness of any Restricted Subsidiaries under Vendor Credit
Facilities, in an aggregate principal amount not to exceed (euro)50 million at
any one time outstanding;
(m) Indebtedness of Parent and any Restricted Subsidiaries consisting
of guarantees, indemnities or obligations in respect of purchase price
adjustments in connection with the acquisition of or disposition of assets,
including, without limitation, shares of Capital Stock;
(n) Indebtedness of Parent and any Restricted Subsidiaries under
letter of credit facilities entered into in the ordinary course of business and
under which recourse to Parent or such Restricted Subsidiaries, as applicable,
is limited to the cash securing such letters of credit;
(o) Indebtedness incurred by Parent and any Restricted Subsidiaries
under Hedging Transactions;
(p) Indebtedness of Parent and any Restricted Subsidiaries in respect
of performance bonds or surety bonds incurred in the ordinary course of business
in connection with the construction of the telecommunications network of Parent
or any Restricted Subsidiary;
14
(q) (A) Indebtedness of Parent consisting of guarantees of
Indebtedness of any Restricted Subsidiary permitted to be incurred by such
Restricted Subsidiary under this Indenture and (B) Indebtedness of Restricted
Subsidiaries consisting of guarantees of Indebtedness of Parent or any
Restricted Subsidiary so long as such Restricted Subsidiary complies with
Section 9.14;
(r) the incurrence by Parent and any Restricted Subsidiary of
additional Indebtedness (including Indebtedness under the Senior Credit
Facility) in an aggregate principal amount at any one time outstanding under
this clause (k) not to exceed (euro)175.0 million (or, to the extent not
denominated in Euros, the Euro Equivalent thereof) less the aggregate amount of
all repayments, optional or mandatory, of the principal of any term Indebtedness
(other than repayments that are concurrently reborrowed) and permanent
commitment reductions with respect to any revolving credit borrowings that have
been made by Parent or any of its Restricted Subsidiaries since the date of this
Indenture;
(s) Acquired Indebtedness incurred by Parent or any Restricted
Subsidiary in connection with any consolidation, merger, sale, assignment,
conveyance, transfer, lease or other transaction or series of related
transactions that satisfies the requirements of Section 7.1;
(t) Acquired Indebtedness incurred by Parent or any Restricted
Subsidiary up to (euro)150 million;
(u) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing") by Parent or
any Restricted Subsidiary to refund, refinance or replace any Indebtedness of
Parent or any Restricted Subsidiary listed in clauses (a) (b), and (l) of this
definition, including any successive refinancings, so long as (other than
Indebtedness which is a Derivative Transaction) (i) any such new Indebtedness
shall be in a principal amount that does not exceed the principal amount (or, if
such Indebtedness being refinanced provides for an amount less than the
principal amount thereof to be due and payable upon a declaration of
acceleration thereof, such lesser amount as of the date of determination) so
refinanced, plus the amount of any premium reasonably determined as necessary to
accomplish such refinancing and the amount of expenses of Parent or any
Restricted Subsidiary incurred in connection with such refinancing, (ii) in the
case of any refinancing of Subordinated Indebtedness, such new Indebtedness
(other than Indebtedness which is a Derivative Transaction) is made subordinate
to the Guarantee at least to the same extent as the Indebtedness being
refinanced, and (iii) such new Indebtedness (other than Indebtedness which is a
Derivative Transaction) has an Average Life longer than the Average Life of the
Indebtedness refinanced and a final Stated Maturity later than the final Stated
Maturity of principal of the Indebtedness refinanced, renewed, replaced,
defeased or refunded, provided that Parent may incur such refinancing in
connection with Indebtedness of any Restricted Subsidiary, including any such
Indebtedness guaranteed by Parent; and
(v) Indebtedness of any Restricted Subsidiary to the extent the
proceeds thereby are used to refinance, defease or redeem, in whole or in part,
the Notes.
"PERMITTED INVESTMENTS" means any of the following:
(w) Investments in Cash Equivalents;
(x) Investments in Parent or any Restricted Subsidiary;
15
(y) Investments by Parent or any Restricted Subsidiary in another
Person, if as a result of such Investment (i) such other Person becomes a
Restricted Subsidiary or (ii) such other Person is merged or consolidated with
or into, or transfers or conveys all or substantially all of its assets to,
Parent or a Restricted Subsidiary;
(z) Investments by Parent or any Restricted Subsidiary in any
Permitted Joint Venture: (A) which Permitted Joint Venture will be fully
consolidated with Parent for financial reporting purposes (and Parent's
independent public accountants shall have so certified to the Trustee); provided
that after giving effect to such Investment all Investments under this clause
(d)(A) aggregate less than (euro)100.0 million, with the amount of each such
Investment measured on the date of such Investment (without giving effect to
subsequent changes of value); provided further, that if any such Permitted Joint
Venture ceases to be so consolidated, all Investments in such Permitted Joint
Venture by Parent or any Restricted Subsidiaries will be deemed Investments made
at the time of such deconsolidation that are not permitted by this clause
(d)(A); or (B) in an amount which does not after giving effect to such
Investment and all other Investments under this clause (d)(B), aggregate more
than (euro)25.0 million, with the amount of each such Investment measured on the
date of such Investment without giving effect to subsequent changes of value; or
(C) not otherwise permitted by clause (A) or (B), unless after giving effect to
such Investment the ratio of (x) the aggregate outstanding amount of Investments
in such Permitted Joint Venture by Parent and the Restricted Subsidiaries to (y)
the aggregate outstanding amount of Investments in such Permitted Joint Venture
by all holders of its outstanding equity interests does not exceed the ratio of
(i) the aggregate amount of outstanding equity interests of such Permitted Joint
Venture owned by Parent and the Restricted Subsidiaries to (ii) the aggregate
amount of outstanding equity interests of such Permitted Joint Venture owned by
all holders thereof; and provided further that upon the payment of any dividend
or distribution by any Permitted Joint Venture to holders of its equity
interests that is not pro rata by equity interest, all Investments in such
Permitted Joint Venture by Parent or any Restricted Subsidiaries will be deemed
Investments made at such time that are not permitted by this clause (d)(C);
(aa) Investments in bonds, notes, debentures or other securities
received as a result of Asset Sales permitted under Section 9.16; provided that
Parent or a Restricted Subsidiary, as the case may be, has received at least
75.0% of the net proceeds thereof in cash or Cash Equivalents;
(bb) any acquisition of assets solely in exchange for the issuance of
Qualified Capital Stock of Parent;
(cc) any Hedging Transaction; and
(dd) other Investments in any Person other than Parent or an
Affiliate of Parent that is not also a Restricted Subsidiary having an aggregate
fair market value (measured on the date each such Investment was made and
without giving effect to subsequent changes in value), when taken together with
all other Investments made pursuant to this clause (h) that are at the time
outstanding not in excess of (euro)25.0 million (or, to the extent not
denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof);
"PERMITTED JOINT VENTURE" means any Person (a) in which Parent and
the Restricted Subsidiaries, on an aggregate basis, own or acquire less than
50.0% of the outstanding Voting Stock and (b) that was created to, and that
conducts no business activities other than activities in which Parent and its
Restricted Subsidiaries are permitted to engage under Section 9.19.
16
"PERMITTED LIENS" means the following types of Liens:
(ee) Liens existing as of the Issue Date;
(ff) Liens on any property or assets of a Restricted Subsidiary
granted in favor of Parent or any Restricted Subsidiary;
(gg) Liens securing the Notes;
(hh) any interest or title of a lessor under any Capitalized Lease
Obligation permitted to be incurred under this Indenture so long as the
Attributable Debt secured by such Lien does not exceed (euro)25.0 million (or,
to the extent not denominated in U.S. Dollars, the U.S. Dollar Equivalent
thereof);
(ii) statutory Liens or landlords' and carriers', warehousemen's,
mechanics', suppliers', materialmen's, repairmen's or other like Liens arising
in the ordinary course of business and with respect to amounts not yet
delinquent or being contested in good faith by appropriate proceeding, if a
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP shall have been made therefor;
(jj) Liens for taxes, assessments, government charges or claims,
including, without limitation, those in favor of Polish governmental fiscal
authorities, that are being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted and if a reserve or other
appropriate provision, if any, as shall be required in conformity with GAAP
shall have been made therefor;
(kk) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (other than contracts for the
payment of money);
(ll) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business of
Parent or any Subsidiary incurred in the ordinary course of business;
(mm) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(nn) Liens securing Acquired Indebtedness permitted to be incurred by
this Indenture created prior to (and not in connection with or in contemplation
of) the incurrence of such Indebtedness by Parent or any Subsidiary; provided
that such Lien does not extend to any property or assets of Parent or any
Subsidiary other than the assets acquired in connection with the incurrence of
such Acquired Indebtedness;
(oo) Liens securing or arising under the agreed terms of any Hedging
Transaction permitted to be incurred pursuant to clauses (b) or (h) of the
definition of Permitted Indebtedness or any collateral for the Indebtedness to
which such Hedging Transaction relates;
17
(pp) Liens securing Indebtedness permitted to be incurred under
Section 9.9(a) or clause (k) of the definition of Permitted Indebtedness,
provided, however, that any Liens that are not Liens in respect of the Senior
Credit Facility shall be subordinated to the Collateral and pari passu with the
Notes with respect to assets not constituting part of the Collateral;
(qq) Liens securing Vendor Financing permitted to be incurred under
clause (e) of the definition of Permitted Indebtedness;
(rr) Liens encumbering deposits made to secure obligations arising
from statutory, regulatory, contractual or warranty requirements, including
rights of offset and set-off;
(ss) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security;
(tt) Liens on ducts securing any loans from Telia AB or any of its
Affiliates in respect of the lease by Telekom to Telia AB or any of its
Affiliates of ducts on the route between Warsaw and Szczecin;
(uu) Liens on cash securing reimbursement obligations of Parent under
letter of credit facilities entered into in the ordinary course of business and
under which recourse to Parent is limited to the cash relating to such letters
of credit and subject to the Liens; and
(vv) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (q), provided that any
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall not
extend to any additional property or assets.
"PERSON" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"PLEDGED ASSETS" means the shares of capital stock owned by Parent
and the Pledge Subsidiaries; the collection of moveables and rights owned by
Parent and the Pledge Subsidiaries; and the material non-real estate assets
owned by Parent and the Pledge Subsidiaries.
"PLEDGED SHARES" means (i) the capital stock of the Pledge
Subsidiaries owned by Parent or any of its Subsidiaries from time to time and
(ii) further capital stock (other than capital stock of an existing Subsidiary)
acquired by the Parent or any of its Subsidiaries following the Issue Date,
except for capital stock in one or more Permitted Joint Ventures with respect to
which the aggregate Investments by Parent and its Subsidiaries, measured at the
time of such Investment and other than any Investment made solely in exchange
for Qualified Capital Stock of Parent, does not exceed the aggregate principal
amount of Notes redeemed by the Issuer pursuant to Section 10.1.
"PLEDGE SUBSIDIARIES" means the following direct and indirect
subsidiaries of Netia Holdings S.A.: Netia Telekom S.A., Netia South Sp. z.o.o.,
Netia 1 Sp. z.o.o., Netia Telekom Wloclawek S.A., Netia Telekom Pila Sp. z.o.o,
Netia Telekom ▇▇▇▇▇▇ ▇.▇., Netia Telekom Mazowsze S.A., Netia Telekom Warszawa
S.A., Netia Telekom ▇▇▇▇▇▇ ▇.▇., Netia Telekom Lublin S.A., Netia Telekom
Swidnik S.A., Netia Telekom Ostrowiec S.A., Netia Telekom Torun S.A., Netia
Telekom Telmedia S.A., Netia Telekom Silesia S.A., Netia Network S.A., Optimus
Invest S.A. and Telekom Building Sp. z.o.o.
18
"PREFERRED STOCK" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's preferred or preference stock whether now outstanding, or issued
after the Issue Date, including, without limitation, all classes and series of
preferred or preference stock of such Person.
"PRINCIPAL PAYING AGENT" means The Bank of New York, acting through
its London branch and any successor Principal Paying Agent.
"PUBLIC DEBT" means indebtedness that is registered under the
Securities Act or under the securities laws of any country, indebtedness issued
pursuant to Rule 144A, Regulation S, or Regulation D under the Securities Act,
or in private placement transactions pursuant to an indenture, trust deed, or
private placement agreement, or similar agreement where the purchasers of the
instruments evidencing indebtedness are not deemed to be lenders or a syndicate
thereof.
"QUALIFIED CAPITAL STOCK" of any Person means any and all Capital
Stock of such Person other than Redeemable Capital Stock.
"RATING AGENCIES" means (i) S&P and (ii) Moody's and (iii) if S&P of
Moody's or both shall not make a rating of the Notes publicly available, an
internationally recognized securities rating agency or agencies, as the case may
be, selected by Parent, which shall be substituted for S&P or Moody's or both,
as the case may be.
"RATING CATEGORIES" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories), (ii) with respect to Moody's, any of the following categories: Ba,
B, Caa, Ca, C and D (or equivalent successor categories); and (iii) the
equivalent of any such category of S&P or Moody's used by another Rating Agency.
In determining whether the rating of the Notes has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for
Moody's; or the equivalent gradations for another Rating Agency) shall be taken
into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB,
as well as from BB- to B+, will constitute a decrease of one gradation).
"RATING DATE" means the date which is 60 days prior to the earlier of
(x) a Change of Control and (y) public notice of the occurrence of a Change of
Control or of the intention by Parent or any holder of Capital Stock of Parent
to effect a Change of Control.
"RATING DECLINE" means the decrease (as compared with the Rating
Date) by one or more gradations (including gradations within Rating Categories
as well as between Rating Categories) of the rating of the Notes by either
Rating Agency (a) on, or within four months after, the date of public notice of
the occurrence of a Change of Control or of the intention by Parent or any
holder of Capital Stock of Parent to effect a Change of Control (which period
shall be extended for so long as the rating of the Notes is under publicly
announced consideration for possible downgrade by any of the Rating Agencies) or
(b) as a result of, as stated by the Relevant Rating Agency, a Change of
Control.
"REDEEMABLE CAPITAL STOCK" means any class or series of Capital Stock
that, either by its terms, by the terms of any security into which it is
convertible or exchangeable or by contract or otherwise is, or upon the
happening of an event or passage of time would be, required to be redeemed prior
to the Stated Maturity of the Notes or is redeemable at the option of the holder
thereof at any time prior to such Stated Maturity, or is convertible into or
exchangeable for debt securities at any time prior to such Stated Maturity.
"REDEMPTION DATE" when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
19
"REDEMPTION PRICE" when used with respect to any Note to be redeemed,
means the principal amount outstanding on that Note on the Redemption Date.
"REGISTER" has the meaning specified in Section 2.3.
"REGISTRAR" has the meaning specified in Section 2.3.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date means 8 June or 8 December (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date.
"REGULATION S GLOBAL NOTE" means a Global Note, in or substantially
in the form set forth in Exhibit C, issued in the name of the Common Depository,
representing the Notes to be delivered to holders of the Existing Notes who hold
a direct or indirect interest in Existing Regulation S Global Notes .
"REPLACEMENT ASSETS" means any property, plant or equipment of a
nature or type that is used or usable in the Permitted Business described in
Section 9.19 or Capital Stock of a Restricted Subsidiary substantially all of
the assets of which (other than working capital assets) would qualify as
Replacement Assets.
"RESPONSIBLE OFFICER" when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, any assistant vice
president, any assistant secretary, the treasurer, any assistant treasurer, any
trust officer or assistant trust officer, the controller or any assistant
controller or any other officer of the Trustee customarily performing functions
similar to those performed by any of the above-designated officers, and also
means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"RESTRICTED NOTE" means a Global Note or Definitive Note bearing the
Restricted Securities Legend.
"RESTRICTED GLOBAL NOTES" means the DTC Restricted Global Note and
the European Restricted Global Note.
"RESTRICTED PAYMENTS" has the meaning specified in Section 9.10.
"RESTRICTED SECURITIES LEGEND" means the legend identified under that
name in each of Exhibit A and Exhibit B.
"RESTRICTED SUBSIDIARY" means any Subsidiary that is not designated
an Unrestricted Subsidiary by the Management Board of Parent in compliance with
the procedures under the Indenture.
"S&P" means Standard and Poor's Ratings Services, a division of
▇▇▇▇▇▇-▇▇▇▇, Inc., and its successors.
"SECURITIES ACT" means the U.S. Securities Act of 1933, as amended.
20
"SECURITY AGENT" means the Person named as Security Agent in the
first paragraph of this Indenture or any successor security agent pursuant to,
and in accordance with, the terms of the Agency Agreement.
"SECURITY DEPOSITARY" means the Person named as escrow agent in the
Deposit Agreement.
"SECURITY DOCUMENTS" means, collectively, all of the agreements,
instruments, documents, pledges or filings executed in connection with granting,
or that otherwise evidence the Lien of the Trustee in the Collateral, including,
without limitation, each Mortgage creating a Lien that secures the Notes and the
Guarantees thereof, all substantially in the appropriate form of documents
attached hereto as Exhibits D to V, if any, and any other document, agreement,
instrument, pledge or filing executed in connection with the granting, or that
otherwise evidence the Lien of the Trustee on the Collateral.
"SENIOR BANK CREDITORS" means one or more Polish or international
banks or lending institutions that enter into the Senior Credit Facility as
lenders or arrangers.
"SENIOR CREDIT FACILITY" means the credit facility that Parent, as
borrower, and its Subsidiaries, as guarantors, may enter into with Senior Bank
Creditors pursuant to Section 9.9(a) or clause (k) of the definition of
"Permitted Indebtedness" and Liens in respect of which shall be senior to the
Collateral, provided that principal amount of the Senior Credit Facility shall
not exceed an aggregate of (euro)50 million.
"SENIOR LIABILITIES" has the meaning specified in Section 11.6
"SENIOR SECURITY" has the meaning specified in Section 11.6.
"SIGNIFICANT SUBSIDIARY" means, at any date of determination, any
Restricted Subsidiary that, together with its subsidiaries, (i) for the most
recent fiscal year of Parent accounted for more than 10.0% of the consolidated
revenues of Parent and the Restricted Subsidiaries, (ii) as of the end of such
fiscal year, was the owner of more than 10.0% of the consolidated assets of
Parent and the Restricted Subsidiaries, in each case as set forth on the most
recently available consolidated financial statements of Parent and the
Restricted Subsidiaries for such fiscal year, or (iii) owns one or more licences
or concessions to provide telecommunications or data transmission services
throughout the Republic of Poland or in a portion thereof that contains in the
aggregate for all licences held by such Restricted Subsidiary, at least 200,000
persons, as certified by an Officer's Certificate.
"STATED MATURITY" means, (i) when used with respect to any Note or
any installment of interest thereon, the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable, (ii) when used in relation to a Derivative Transaction,
means the last date on which or, if later, by reference to which, any payment
may be under the terms of that transaction and (iii) when used with respect to
any other Indebtedness, means the date specified in the instrument governing
such Indebtedness as the fixed date on which the principal of such Indebtedness,
or any installment of interest thereon, is due and payable.
"SUBMISSION TO VOLUNTARY EXECUTION" has the meaning specified in
Section 11.1.
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Parent or any
Subsidiary Guarantor that is expressly subordinated in right of payment to the
Guarantee.
21
"SUBSIDIARY" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by Parent or
by one or more other Subsidiaries or by Parent and one or more other
Subsidiaries.
"SUBSIDIARY GUARANTORS" means Netia Telecom S.A., Netia South S.A.,
respectively, and any person who executes a supplemental indenture providing for
a Guarantee in accordance with Section 8.1(4).
"TARGET SYSTEM" means the Trans-European Automated Real-Time Gross
Settlement Express Transfer (TARGET) System or any successor thereto.
"TAX" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto), and "Taxes" shall be construed accordingly.
"TAXING AUTHORITY" means any government or political subdivision or
territory or possession of any government or any authority or agency therein or
thereof having power to tax.
"TELECOMMUNICATIONS ASSETS" means, with respect to any Person, any
asset that is utilized by such Person, directly or indirectly, for the design,
development, construction, installation, integration, operation, management or
provision of telecommunications systems or services in the Republic of Poland or
any country bordering on the Republic of Poland, including, without limitation,
any businesses or services in which Parent is engaged on the date of this
Indenture and including any computer systems used in the delivery of telephony,
cable television or other telecommunications or data transmission services in
the Republic of Poland or any country bordering on the Republic of Poland.
"TRANSFER AGENTS" means the U.S. Paying Agent, any successor thereof,
the Luxembourg Paying Agent, any successor thereof, the Principal Paying Agent,
any successor thereof, and any Person appointed by the Issuer pursuant to the
Agency Agreement to act in such capacity.
"TRUST CORPORATION" means a corporation entitled by rules made under
the Public Trustee Act, 1906 to act as a custodian trustee or entitled pursuant
to any other legislation applicable to a trustee in any U.S. or Western European
jurisdiction other than England to act as trustee and carry on trust business
under the laws of its incorporation.
"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 SUBSIDIARY" means (a) any Subsidiary that at the time
of determination shall be an Unrestricted Subsidiary (as designated by the
Management Board, as provided below) and (b) any Subsidiary of an Unrestricted
Subsidiary. The Management Board may designate any Subsidiary (including any
newly acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so
long as (i) neither Parent nor any Restricted Subsidiary is directly or
indirectly liable for or provides credit support for or guarantees any
Indebtedness of or subjects any of its property or assets to the satisfaction of
such Subsidiary's liabilities other than where recourse to Parent and the
Restricted Subsidiaries on such support or guarantee is limited to a pledge
permitted by this Indenture of shares of Capital Stock of such Subsidiary, (ii)
no default with respect to any Indebtedness of such Subsidiary would permit
(upon notice, lapse of time or otherwise) any holder of any other Indebtedness
of Parent or any other Restricted Subsidiary to declare a default on such other
Indebtedness or cause the payment thereof to be accelerated or payable prior to
22
its scheduled Maturity, (iii) any Investment in such Subsidiary made as a result
of designating such Subsidiary an Unrestricted Subsidiary will not violate the
provisions of Section 9.18, (iv) neither Parent nor any other Subsidiary has a
contract, agreement, arrangement, understanding or obligation of any kind,
whether written or oral, with such Subsidiary other than those that might be
obtained at the time from persons who are not Affiliates of Parent and (v)
neither Parent nor any other Subsidiary has any obligation (1) to subscribe for
additional shares of Capital Stock or other equity interest in such Subsidiary
or (2) to maintain or preserve such Subsidiary's financial condition or to cause
such Subsidiary to achieve certain levels of operating results. Any such
designation by the Management Board shall be evidenced to the Trustee by filing
a management board resolution with the Trustee giving effect to such
designation. The Management Board may designate any Unrestricted Subsidiary as a
Restricted Subsidiary if immediately after giving effect to such designation,
there would be no Default or Event of Default under this Indenture and Parent
could incur (euro)1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to Section 9.9.
"U.S. DOLLAR EQUIVALENT" means, with respect to any monetary amount
in a currency other than the U.S. Dollar, at any time for the determination
thereof, the amount of U.S. Dollars obtained by converting such foreign currency
involved in such computation into U.S. Dollars at the spot rate for the purchase
of U.S. Dollars with the applicable foreign currency as quoted by Reuters at
approximately 11:00 a.m. (New York City time) on the date two business days
prior to such determination. For purposes of determining (a) whether any
Indebtedness can be incurred (including Permitted Indebtedness), any Investment
can be made and any transaction set forth in Section 9.12 can be undertaken (a
"TESTED TRANSACTION"), the U.S. Dollar Equivalent of such Indebtedness,
Investment or transaction described in Section 9.12 shall be determined on the
date incurred, made or undertaken and, no subsequent change in the U.S. Dollar
Equivalent shall in and of itself cause such Tested Transaction to have been
incurred, made or undertaken in violation of this Indenture.
"U.S. PAYING AGENT" means The Bank of New York or any other Paying
Agent appointed in the United States pursuant to the Agency Agreement.
"VENDOR CREDIT FACILITIES" means any credit facility entered into
with any vendor or supplier (or any financial institution acting on behalf of
such a vendor or supplier); provided that the Indebtedness thereunder is
incurred solely for the purpose of financing the cost of Telecommunications
Assets.
"VICE PRESIDENT" when used with respect to 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."
"VOTING STOCK" means, with respect to any Person, any class or
classes of Capital Stock pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, management board, managers or trustees of such Person
(irrespective of whether or not, at the time, stock of any other class or
classes shall have, or might have, voting power by reason of the happening of
any contingency).
"WHOLLY OWNED" means, with respect to any Subsidiary, such Subsidiary
if all the outstanding Capital Stock of such Subsidiary (other than any
directors' qualifying shares) is owned directly by Parent or by Parent and one
or more Wholly Owned Restricted Subsidiaries.
23
Section 1.2 Compliance Certificates and Opinions
Upon any application or request by the Issuer to the Trustee to take
any action under any provision of this Indenture, the Issuer shall furnish to
the Trustee an Officer's Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance 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 9.8(a)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of a member of the Board of Directors or a
member of the Management Board may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such member knows, or in the exercise of reasonable care should know,
that the certificate, opinion or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such
certificate or opinion of or representation, Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, a member of the Board of Directors or a member of the Management Board
stating that the information with respect to such factual matters is in the
possession of the Issuer or Parent, unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate, opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
24
Section 1.4 Actions 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, as applicable, 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
Issuer. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Action" of the
Holders signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the Issuer,
if made in the manner provided in this Section. Without limitation of the
foregoing, any action taken in accordance with the Applicable Procedures shall
be deemed effective for purposes of this Section 1.4(a) in respect of any Global
Note.
(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. Nothing in Sections
1.4(a) and (b) shall prejudice any right of the Trustee pursuant to Section
5.3(a).
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Register.
(d) If the Issuer shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other
Action, the Issuer 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
Action, but the Issuer shall have no obligation to do so. 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
Action 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, as applicable, for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Action, and for that purpose the Outstanding Notes 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 not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Action of the Holder of any Note shall bind every future Holder
of the same Note and the Holder of every Note issued upon the registration of
25
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 Issuer in
reliance thereon, whether or not notation of such action is made upon such Note.
Section 1.5 Notices, Etc., to Trustee, Issuer and/or the Guarantors
Any request, demand, authorization, direction, notice, consent,
waiver or Action of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with:
(a) the Trustee by any Holder or by the Issuer or the Guarantors
shall be sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Administration;
(b) the Issuer or the Guarantors by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
the Issuer or the Guarantors, as the case may be, addressed to it at the address
of its principal office specified in the first paragraph of this Indenture, or
at any other address previously furnished in writing to the Trustee by the
Issuer or the Guarantors; or
(c) the Security Agent by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the Security
Agent, addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, or at any other address previously furnished
in writing to the Trustee by the Security Agent.
Section 1.6 Notices to Holders: Waiver
Where this Indenture provides for notice of any event to Holders by
the Issuer, Guarantors or the Trustee, such notice shall be sufficiently given
(unless otherwise herein expressly provided) upon (i) the mailing by first-class
mail, postage prepaid of such notice, to each Holder affected by such event, at
his address as it appears in the Register in the case of Holders of Definitive
Notes, not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice; and (ii) publication in a leading
daily newspaper with general circulation in a major western European capital or,
if not practicable, in a leading daily English language newspaper having general
circulation in Europe previously approved by the Trustee. Any notice referred to
in (ii) above shall be deemed to have been given on the date of such publication
or, if published more than once or on different dates, on the first date on
which publication is made in the manner required in the newspaper or in one of
the newspapers referred to above. For Notes which are represented by the
European Restricted Global Note or the Regulation S Global Note, Clearstream,
Luxembourg, notices may be given by delivery of the relevant notices to
Euroclear or Clearstream, Luxembourg for communication to entitled account
holders in substitution for the aforesaid publication. So long as any Notes are
listed on the Luxembourg Stock Exchange and the rules and regulations of the
Luxembourg Stock Exchange so require, any such notice shall also be published in
a leading daily newspaper of general circulation in Luxembourg. Such publication
is expected to be the Luxemburger Wort.
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.
26
Section 1.7 Effect of Headings and Table of Contents
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 1.8 Successors and Assigns
All covenants and agreements in this Indenture by the Issuer and by
the Guarantors shall bind their respective successors and assigns, whether so
expressed or not.
Section 1.9 Separability Clause
In case any provision in this Indenture or in the Notes 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 Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇
A person who is not a party to this Indenture has no right under the
Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ to enforce any part of this
Indenture, except to the extent expressly provided herein.
Section 1.11 Counterparts and Governing Language
This Indenture may be executed in one or more counterparts, each of
which shall be deemed an original but all of which together shall constitute one
and the same instrument. Delivery of an executed counterpart of a signature page
to this Indenture by facsimile shall be effective as delivery of a manually
executed counterpart of this Indenture. The English-language counterpart of this
Indenture shall govern over the Polish-language counterpart in respect of any
interpretation hereof. Nothing in the Polish-language counterpart shall grant
any rights or impose any obligations on any party hereto to any extent not
provided for in the English-language counterpart.
Section 1.12 Governing Law
The laws of England shall govern this Indenture and the Notes,
including the Guarantees.
Section 1.13 Legal Holidays
In any case where any Interest Payment Date, Redemption Date, or
Stated Maturity or Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (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, Redemption Date, or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
and after such Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be, if payment is actually made on the next succeeding
Business Day.
Section 1.14 Submission to Jurisdiction and Service of Process
(a) The Issuer and the Guarantors irrevocably submit for the benefit
of the Trustee and the holders of the Notes, to the jurisdiction of the courts
of England, and waive any immunity from the jurisdiction of such courts over any
suit, action or proceeding that may be brought in connection with this
27
Indenture, the Notes or the Guarantee. The Issuer and the Guarantors irrevocably
waive, to the fullest extent permitted by law, any objection to any suit,
action, or proceeding that may be brought in connection with this Indenture, the
Notes or the Guarantee in such courts whether on the grounds of venue, residence
or domicile or on the ground that any such suit, action or proceeding has been
brought in an inconvenient forum. The Issuer and the Guarantors agree that final
judgment in any such suit, action or proceeding brought in such court shall be
conclusive and binding upon the Issuer or the Guarantors, as the case may be,
and may be enforced in any court to the jurisdiction of which the Issuer or the
Guarantors, as the case may be, is or are subject by a suit upon such judgment;
provided that service of process is effected upon the Issuer or the Guarantors
in the manner provided by this Indenture.
(b) The Issuer and the Guarantors agree that service of all writs,
process and summonses in any suit, action or proceeding brought in connection
with this Indenture, the Notes or the Guarantee against the Issuer or the
Guarantors, as the case may be, in any court of England may be made upon the
Authorized Agent, presently at Second Floor, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇, whom the Issuer and the Guarantors irrevocably appoint as their
respective authorized agent for service of process. The Issuer and the
Guarantors represent and warrant that the Authorized Agent has agreed to act as
the agent for service of process for the Issuer and the Guarantors. The Issuer
and the Guarantors agree that such appointment shall be irrevocable so long as
any of the Notes remain outstanding or until the irrevocable appointment by the
Issuer or the Guarantors, as the case may be, of a successor in England as its
authorized agent for such purpose and the acceptance of such appointment by such
successor. The Issuer and the Guarantors further agree to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
If the Authorized Agent shall cease to act as the agent for service of process
for the Issuer or the Guarantors, the Issuer or the Guarantors, as the case may
be, shall appoint without delay another such agent and provide prompt written
notice to the Trustee of such appointment. With respect to any such action in
any court of England, service of process upon the Authorized Agent, as the
authorized agent of the Issuer or the Guarantors for service of process, and
written notice of such service to the Issuer or the Guarantors, as the case may
be, shall be deemed, in every respect, effective service of process upon the
Issuer or the Guarantors.
Nothing in this Section shall affect the right of any party to serve
legal process in any other manner permitted by law or affect the right of any
party to bring any action or proceeding against any other party or its property
in the courts of other jurisdictions.
Any Restricted Subsidiary that executes this Indenture or a guarantee
pursuant to Section 9.14 shall be bound by the foregoing upon execution and
delivery of a supplemental indenture giving effect to such guarantee, and shall
appoint the Authorized Agent as agent for service of process as contemplated by
Section 1.14(b) prior to or immediately upon executing a supplemental indenture.
ARTICLE 2
THE NOTES
Section 2.1 Form and Dating
a. The Global Notes. On the Issue Date, the Regulation S Global
Note, the European Restricted Global Notes and the DTC Restricted
Global Note will be issued representing the aggregate principal
28
amount of the Initial Notes and the Issuer (failing whom the
Parent) shall procure that the appropriate entries be made in the
register of Holders of the Notes by the Registrar to reflect the
issue of such Initial Notes. The issue of Global Notes in names
other than those of the Common Depositary or the DTC Nominee, as
the case may be, is restricted as provided in each Global Note.
The Initial Notes represented by the Global Notes shall be
subject to their terms in all respects and entitled to the same
benefits under this Trust Deed as individual Initial Notes.
b. Definitive Notes. Definitive Notes in registered form in
authorized denominations, if issued, will be delivered upon
exchange of the Global Notes as provided in section 2.7(e). Such
Definitive Notes may be printed or typed and need not be security
printed unless otherwise required by applicable stock exchange
requirements.
c. Form. The DTC Restricted Global Note will be in or substantially
in the form set out in Exhibit A, the European Restricted Global
Note will be in or substantially in the form set out in Exhibit B
and the Regulation S Global Note will be in or substantially in
the form set out in Exhibit C. Definitive Notes will be in or
substantially in the respective forms set out in Exhibits A to C,
except that they shall not contain the Global Note Legends.
Unless otherwise determined by the Issuer, Definitive Notes
issued in exchange for interests in the Restricted Global Notes
will bear the Restricted Securities Legend. The Initial Notes
shall be issued only in the denominations of (euro)1,000
principal amount, or, in each case, any integral multiple thereof
with such denomination subject to amendment from time to time
following Payment-in-Kind Elections.
d. Signature. The Global Notes will be signed manually or in
facsimile by one or more authorized directors of the Issuer duly
authorized for the purpose or manually by any duly authorized
attorney of the Issuer and in any case will be authenticated
manually by or on behalf of the Registrar. Definitive Notes (if
issued) will be signed manually or in facsimile by one or more
authorized directors or duly authorized officers of the Issuer
and in any case will be authenticated manually by or on behalf of
the Registrar. The Issuer may use the facsimile signature of any
person who at the date of this Indenture is an authorized
director of the Issuer even if at the time of issue of any Note
(including the Global Notes) he no longer holds such office.
Notes (including the Global Notes) so executed and authenticated
will be binding and valid obligations of the Issuer.
e. Dating. Each Note shall be dated the date of its authentication.
Section 2.2 Execution and Authentication
A member of the board of directors or an authorized representative of
the Issuer shall execute the Notes on behalf of the Issuer by manual or
facsimile signature. If the Issuer has a seal, it may, but need not be,
impressed, affixed, imprinted or reproduced on the Notes.
If a member of the board of directors or an authorized representative
of the Issuer whose signature is on a Note no longer holds that office at the
time the Registrar authenticates the Note or at any time thereafter, the Note
shall be valid nevertheless.
29
A Note shall not be valid until an authorized signatory of the
Registrar manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Registrar shall authenticate Notes on the Issue Date in an
aggregate principal amount not to exceed (euro)50,000,000, upon receipt of an
Officer's Certificate signed by a member of the board of directors or an
authorized representative of the Issuer directing the Registrar to authenticate
the Notes and certifying that all conditions precedent to the issuance of the
Notes contained herein have been complied with and providing instructions
concerning delivery of the Notes.
Section 2.3 Registrar and Paying Agents
The Issuer shall maintain one or more Paying Agents and Transfer
Agents for the Notes (i) in Luxembourg, for so long as the Notes are listed on
the Luxembourg Stock Exchange, (ii) in the city of London, and (iii) in the
Borough of Manhattan, city of New York.
The Issuer shall also maintain a registrar (a "REGISTRAR") with an
office in the Borough of Manhattan, city of New York and in Europe. The initial
Registrar for the Notes appointed pursuant to the Agency Agreement is The Bank
of New York in London. The Registrar will maintain a register reflecting
ownership of the relevant Notes outstanding from time to time (the "REGISTER").
The Issuer and the Guarantors reserve the right at any time to vary
or terminate the appointment of any Paying Agent, Registrar, Transfer Agent or
other agent appointed by them pursuant to the Agency Agreement and/or to appoint
additional or other Paying Agents, Registrars, Transfer Agents pursuant to the
Agency Agreement or other agents without prior notice to the Holders; provided
however, that no such variation, termination or appointment shall in any manner
relieve the Issuer of its obligation to maintain agents and offices in the
locations specified in the first two paragraphs of this Section 2.3.
Section 2.4 Holders to Be Treated as Owners; Payments of Interest
(a) The Issuer, the Guarantors, the Parent, any Paying Agent, the
Registrar, the Trustee, the Security Agent and any agent of the Issuer, the
Guarantors, the Parent, any Paying Agent, the Registrar or the Trustee may, to
the extent permitted by applicable law, deem and treat the Holder of such
Definitive Note as the absolute owner of such Definitive Note for the purpose of
receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest on such Definitive Note and for all other
purposes; and neither the Issuer, the Guarantors, the Parent, any Paying Agent,
the Registrar, the Trustee nor any agent of the Issuer, the Guarantors, the
Parent, any Paying Agent, any Registrar or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Guarantors, the Parent, any Paying
Agent, the Registrar, the Trustee, the Security Agent and any agent of the
Issuer, the Guarantors, the Parent, any Paying Agent, the Registrar or the
Trustee may treat the Holder of any Global Note as the absolute owner thereof
for the purposes of receiving payment of or on account of the principal amount
of and, subject to the provisions of this Indenture, interest on such Global
Note and for all other purposes: and neither the Issuer, the Parent, any Paying
Agent, the Registrar, the Trustee, the Security Agent, nor any agent of the
Issuer, the Parent, any Paying Agent, the Registrar or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such
Person, or upon its order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any Note.
30
(b) The Holder of any Definitive Note at the close of business on any
record date with respect to any Interest Payment Date shall be entitled to
receive the interest payable on such Interest Payment Date notwithstanding any
transfer or exchange of such Definitive Note subsequent to the Regular Record
Date and prior to such Interest Payment Date, except if and to the extent the
Issuer shall default in the payment of the interest due on such Interest Payment
Date, in which case such defaulted interest shall be paid in accordance with
Section 2.13. Payments of interest on the Global Notes will be made to the
Holders of the Global Notes on each Interest Payment Date; provided that, in the
event of an exchange or transfer of a beneficial interest in a Global Note for
Definitive Notes subsequent to a record date or any special record date and
prior to or on the related Interest Payment Date or other payment date under
Section 2.13, any payment of the interest payable on such payment date with
respect to any such Definitive Note shall be made to the Holder of such Global
Note, notwithstanding Section 2.13 or any other provision hereof to the
contrary.
Section 2.5 Paying Agent to act upon instructions of the Trustee
At any time (a) after a Default or an Event of Default shall have
occurred and shall be continuing or the Notes shall otherwise have become due
and repayable; (b) the Trustee shall have received any money which it proposes
to pay under Section 4.6 to the Holders of the Notes or (c) the Trustee has
released the Deposited Amount from the Deposit Account to the Principal Paying
Agent to be held pending a redemption of the Notes in accordance with Section
10, the Trustee may:
(i) by notice in writing to the Issuer, the Guarantors, the Principal
Paying Agent, the other Paying Agents, the Registrar and the Transfer Agents
require the Principal Paying Agent, the other Paying Agents, the Registrar and
the Transfer Agents pursuant to the Agency Agreement:
(a) to act thereafter as Principal Paying Agent, Paying
Agents, Registrar, and Transfer Agents respectively of the Trustee in
relation to payments to be made by or on behalf of the Trustee under
the provisions of this Indenture mutatis mutandis on the terms
provided in the Agency Agreement (save that the Trustee's liability
under any provisions thereof for the indemnification, remuneration and
payment of out-of-pocket expenses of the Paying Agents, the Registrar,
the Security Agent and Transfer Agents shall be limited to the amounts
for the time being held by the Trustee on the trusts of this Indenture
relating to the relative Notes and available for such purpose) and
thereafter to hold all Notes and all sums, documents and records held
by them in respect of Notes on behalf of the Trustee; or
(b) to deliver up all Notes and all sums, documents and
records held by them in respect of Notes to the Trustee or as the
Trustee shall direct in such notice provided that such notice shall be
deemed not to apply to any documents or records which the relative
Paying Agent, the Registrar or the relative Transfer Agent is obliged
not to release by any law or regulation and provided that there shall
at all times be a registrar so long as any Notes are outstanding;
and/or
(ii) by notice in writing to each of the Issuer and the Guarantors
require it to make all subsequent payments in respect of the Notes to or to the
order of the Trustee and not to the Principal Paying Agent; with effect from the
issue of any such notice to the Issuer and the Guarantors and until such notice
is withdrawn.
31
Section 2.6 Noteholder Lists
Intentionally deleted.
Section 2.7 Issue, Transfer and Exchange
(a) Transfer of Global Notes. Immediately before issue, the Issuer
shall deliver to the Registrar (i) a duly executed Regulation S Global Note,
(ii) a duly executed European Restricted Global Note, and (iii) a duly executed
DTC Restricted Global Note. The Registrar (or its agent on its behalf) shall
authenticate the Regulation S Global Note, the European Restricted Global Note
and the DTC Restricted Global Note and return them to or to the order of the
Issuer for delivery, in the case of the Regulation S Global Note and the
European Restricted Global Note, to the Common Depositary and, in the case of
the DTC Restricted Global Note, to a custodian for DTC.
(b) Transfer of a Beneficial Interest in the DTC Restricted Global
Note for a Beneficial Interest in the Regulation S Global Note. If the holder of
a beneficial interest in the DTC Restricted Global Note wishes at any time to
transfer such interest for a beneficial interest in the Regulation S Global
Note, such holder may, subject to the rules and procedures of DTC and Euroclear
or Clearstream, Luxembourg, as the case may be, so transfer or cause the
transfer provided however that the transferee shall have, prior to the
Settlement date for such transfer, delivered to a Transfer Agent a duly
completed transfer certificate substantially in the form attached to the form of
the DTC Restricted Global Note set forth in Exhibit A. Following receipt by a
Transfer Agent from a DTC participant making such a transfer, two business days
in New York City prior to the relevant settlement date, of an instruction (such
instruction to contain information regarding the participant's account with DTC
to be debited and information regarding the details of the receiving
accountholder at Euroclear or Clearstream, Luxembourg), the relevant Transfer
Agent will, in turn, transmit such instruction to Euroclear or Clearstream,
Luxembourg, as the case may be, on the settlement date. On the settlement date,
DTC participant will deliver its interest in the DTC Restricted Global Note to
the relevant Transfer Agent for cancellation. The relevant Transfer Agent will
then instruct Euroclear or Clearstream, Luxembourg, as the case may be, to
credit the relevant account of the Euroclear or Clearstream, Luxembourg
participant, as the case may be, in accordance with such instruction. In
addition, on the settlement date, upon receipt of instructions from the relevant
Transfer Agent, the Registrar will reduce the principal amount of the DTC
Restricted Global Note and increase the principal amount of the Regulation S
Global Note by the aggregate principal amount of the beneficial interest in the
DTC Restricted Global Note to be so transferred for a beneficial interest in the
Regulation S Global Note, in each case by annotation in the relevant Schedule
thereto.
(c) Transfer of a Beneficial Interest in the European Restricted
Global Note for a Beneficial Interest in the Regulation S Global Note. If the
holder of a beneficial interest in the European Restricted Global Note wishes at
any time to transfer such interest for a beneficial interest in the Regulation S
Global Note, such holder may, subject to the rules and procedures of Euroclear
or Clearstream, Luxembourg, as the case may be, so transfer or cause the
transfer provided however that the transferee shall have, prior to the
settlement date for such transfer, delivered to a Transfer Agent a duly
completed transfer certificate substantially in the form attached to the form of
the European Restricted Global Note set forth in Exhibit B. Following receipt by
a Transfer Agent from a Euroclear or Clearstream, Luxembourg participant making
such a transfer, one business day in Brussels or Luxembourg (as the case may be)
and London prior to the relevant settlement date, of an instruction (such
32
instruction to contain information regarding the participant's account with
Euroclear or Clearstream, Luxembourg, as the case may be, to be debited and
information regarding the details of the receiving accountholder at Euroclear or
Clearstream, Luxembourg). On the settlement date, Euroclear or Clearstream,
Luxembourg participant will deliver its interest in the European Restricted
Global Note to the relevant Transfer Agent. The relevant Transfer Agent will
then debit and credit the relevant account of the Euroclear or Clearstream,
Luxembourg participant, as the case may be, in accordance with such instruction.
In addition, on the settlement date, upon the receipt of instruction from the
relevant Transfer Agent, the Registrar will reduce the principal amount of the
European Restricted Global Note and increase the principal amount of the
Regulation S Global Note by the aggregate principal amount of the beneficial
interest in the European Restricted Global Note to be so transferred for a
beneficial interest in the Regulation S Global Note, in each case by annotation
in the relevant Schedule thereto.
(d) Transfer of a Beneficial Interest in the Regulation S Global Note
for a Beneficial Interest in the European Restricted Global Note. If the holder
of a beneficial interest in the Regulation S Global Note wishes at any time to
transfer such interest for a beneficial interest in the European Restricted
Global Note, such holder may, subject to the rules and procedures Euroclear or
Clearstream, Luxembourg, as the case may be, so transfer or cause the transfer..
Following receipt by a Transfer Agent from a Euroclear or Clearstream,
Luxembourg participant making such a transfer, one business day in Brussels or
Luxembourg (as the case may be) and London prior to the relevant settlement
date, of an instruction (such instruction to contain information regarding the
participant's account with Euroclear or Clearstream, Luxembourg, as the case may
be, to be debited and information regarding the details of the receiving
accountholder at Euroclear or Clearstream, Luxembourg). On the settlement date,
Euroclear or Clearstream, Luxembourg participant will deliver its interest in
the Regulation S Global Note to the relevant Transfer Agent. The relevant
Transfer Agent will then debit and credit the relevant account of the Euroclear
or Clearstream, Luxembourg participant, as the case may be, in accordance with
such instruction. In addition, on the settlement date, upon the receipt of
instruction from the relevant Transfer Agent, the Registrar will reduce the
amount of the principal amount of the Regulation S Global Note and increase the
principal amount of the European Restricted Global Note by the aggregate
principal amount of the beneficial interest in the Regulation S Global Note to
be so transferred for a beneficial interest in the European Restricted Global
Note, in each case by annotation in the relevant Schedule thereto.
(e) Exchange of a Global Note for Definitive Notes. Holders of
beneficial interests in the Global Notes will be entitled to have title to the
Notes registered in the Register in their names and to receive individual
Definitive Notes if:
(i) in the case of holders of beneficial interests in the
Regulation S Global Note and the European Restricted Global Note: (1)
either Euroclear or Clearstream, Luxembourg (or any other clearing
system as shall have been designated by the Issuer and approved by the
Trustee on behalf of which the Notes evidenced by the European
Restricted Global Note or the Regulation S Global Note may be held) is
closed for business for a continuous period of 14 days (other than by
reason of holidays, statutory or otherwise) or announces an intention
permanently to cease business or does in fact do so or (2) there shall
have occurred and be continuing an Event of Default or (3)
instructions have been given for the transfer of an interest in the
Notes evidenced by the European Restricted Global Note or the
33
Regulation S Global Note to a person who would otherwise take delivery
thereof in the form of an interest in the Notes evidenced by the
Regulation S Global Note or the European Restricted Global Note,
respectively, where such Regulation S Global Note or European
Restricted Global Note has been exchanged for Definitive Notes, and
(ii) in the case of holders of beneficial interests in the
DTC Restricted Global Note: (1) DTC (or any clearing system as shall
have been designated by the Issuer and approved by the Trustee on
behalf of which the Notes evidenced by the DTC Restricted Global Note
may be held) notifies the Issuer that it is no longer willing or able
to discharge properly its responsibilities as depositary with respect
to the Notes, or ceases to be a "Clearing Agency" registered under the
U.S. Securities Exchange Act of 1934, as amended, or is at any time no
longer eligible to act as such and the Issuer is unable to locate a
qualified successor within 90 days of receiving notice of such
ineligibility on the part of DTC (or, as the case may be, such other
clearing system) or (2) there shall have occurred and be continuing,
an Event of Default or (3) instructions have been given for the
transfer of an interest in the Notes evidenced by the DTC Restricted
Global Note to a person who would otherwise take delivery thereof in
the form of an interest in the Notes evidenced by the Regulation S
Global Note where the Regulation S Global Note has been changed for
Definitive Notes.
In such circumstances set forth in (i) and (ii) above, the Issuer
shall cause sufficient individual Definitive Notes to be executed and delivered
to the Registrar for completion, authentication and despatch to the relevant
holders of beneficial interests in the relevant Global Note within 21 days
following a request therefor by the Holder of the relevant Global Note. A holder
of a beneficial interest in Notes represented by the relevant Global Note must
provide the Registrar with (a) a written order containing instructions and such
other information as the Issuer and the Registrar may require to complete,
execute and deliver such individual Definitive Notes and (b) a certificate to
the effect that (other than in the case of subclause (3) in (i) and (ii) above)
such person is not transferring its interest in the relevant Global Note or, in
the case of subclause (3) in (i) and (ii) above, a certificate as may be
required by the Registrar or the Issuer.
If a Global Note is to be exchanged for Definitive Notes, the Issuer
will cause sufficient Definitive Notes to be executed and delivered to the
Registrar in sufficient quantities and in sufficient time for such Notes to be
issued as provided in the relevant Global Note, and the Registrar will
authenticate the same.
To receive an individual Definitive Notes evidencing a beneficial
interest in the Notes, a person with a beneficial interest in the Notes
represented by the relevant Global Note must provide the Registrar with:
(iii) a written order containing instructions and such other
information as the Issuer and the Registrar may require to complete,
execute and deliver such a Definitive Note; and
(iv) in the case of a Restricted Global Note, either (a) a
certificate to the effect that such person is not transferring its
beneficial interest at the time of such exchange or, (b) in the case
of an exchange of a beneficial interest:
(1) in the DTC Restricted Global Note where instructions
have been given for the transfer of a beneficial interest in
the Notes evidenced by such DTC Restricted Global Note to a
person who would otherwise take delivery thereof in the form
34
of a beneficial interest in the Notes evidenced by a
Regulation S Global Note, where the Regulation S Global Note
has been changed for Definitive Notes,
(2) in the European Restricted Global Note where
instructions have been given for the transfer of a
beneficial interest in the Notes evidenced by such European
Restricted Global Note to a person who would otherwise take
delivery thereof in the form of a beneficial interest in the
Notes evidenced by the Regulation S Global Note, where the
Regulation S Global Note has been changed for Definitive
Notes, and
(3) in the Regulation S Global Note where instructions have
been given for the transfer of a beneficial interest in the
Notes evidenced by such Regulation S Global Note to a person
who would otherwise take delivery thereof in the form of a
beneficial interest in the Notes evidenced by the European
Restricted Global Note, where the Regulation S Global Note
has been changed for Definitive Notes,
(v) a duly completed transfer certificate:(x) in the case of
the DTC Restricted Global Note, substantially in the form attached to
the form of the DTC Restricted Global Note set forth in Exhibit A; or
(y) in the case of the European Restricted Global Note, substantially
in the form attached to the form of the European Restricted Global
Note set forth in Exhibit B.
Upon receipt of the documents referred to in (1), (2) and (3) above,
the Registrar shall arrange for the execution and delivery to or upon the order
of the person named in such order referred to in the immediately preceding
subclause (i) of an individual Definitive Note registered in the name or names
requested by such person or persons and the Registrar shall alter the entries in
the Register in respect of the Notes accordingly.
Except for exchanges made in connection with a transfer of interests
pursuant to 2.7 (e)(i)(3) and 2.7(e)(ii)(3), each individual Definitive Note
issued in exchange for interests in a Restricted Global Note shall bear the
Restricted Securities Legend.
Subject to the provisions of the Schedule to the Agency Agreement,
the Holder of individual Definitive Notes may transfer or exchange such
Definitive Notes provided that in the event the relevant individual Definitive
Note bears the Restricted Securities Legend, the transferee shall deliver a
completed transfer certificate in or substantially in the form set forthin an
exhibit to the Definitive Note. No other restrictions and no certification
requirement shall apply with respect to the transfer of Notes bearing the
Restricted Securities Legend.
(f) Cancellation of Global Notes. At such time as all beneficial
interests in any Global Note have been exchanged for Definitive Notes, such
Global Note shall be returned to or retained and cancelled by the Principal
Paying Agent in accordance with Section 2.12 hereof.
(g) General Provisions Relating to All Transfers and Exchanges.
(i) To permit regulation of transfers and exchanges, the
Issuer shall execute and, upon the Issuer's order, the Registrar shall
authenticate Global Notes, and Definitive Notes at the Registrar's
request.
(ii) No service charge shall be made to a Holder of a
beneficial interest in the Notes for any registration of transfer or
exchange, but the Issuer may require payment of a sum sufficient to
35
cover any stamp or transfer tax, duty or governmental charge payable
in connection therewith (other than any such stamp or transfer taxes,
duties or similar governmental charge payable upon exchange or
transfer pursuant to Sections 9.15 and 9.16, and Article 10 hereof).
(iii) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as
the Global Notes or Definitive Notes surrendered upon such
registration of transfer or exchange.
(iv) The Issuer shall not be required (A) to issue, to
register the transfer of or to exchange Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 10.5 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in
whole or in part, except the unredeemed portion of any Note being
redeemed in part or (C) to register the transfer of or to exchange a
Note between a Regular Record Date and the next succeeding Interest
Payment Date.
(v) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, the Paying Agent, the Registrar,
any Agent (other than the Security Agent) and the Issuer may deem and
treat the Holder of any Note as the absolute owner of such Note for
the purpose of receiving payment of principal of (premium, if any) and
interest on such Notes and for all other purposes, and neither the
Trustee, the Paying Agent, the Registrar, any Agent (other than the
Security Agent) nor the Issuer shall be affected by notice to the
contrary.
(vi) The Registrar shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.2.
(vii) Any transfer of an interest in a Restricted Global
Note shall be subject to the restrictions and limitations set out in
the Restricted Securities Legend. No other restrictions and no
certification requirements shall apply with respect to the transfer or
exchange of (1) an interest in a Restricted Global Note for a further
or other interest in the same Restricted Global Note or (2) an
interest in the Regulation S Global Note for a further or other
interest in the Regulation S Global Note or (3) an interest in the
Regulation S Global Note for an interest in the European Restricted
Global Note. Such transfer or exchange shall be effected in accordance
with the rules and procedures of DTC (or a successor depositary),
Euroclear or Clearstream, Luxembourg, as applicable.
Section 2.8 Replacement Notes
If a mutilated Definitive Note is surrendered to the Registrar, if a
mutilated Global Note is surrendered to the Principal Paying Agent or the
Trustee, or if the Holder of a Note claims that the Note has been lost,
destroyed or wrongfully taken, the Issuer shall issue and the Registrar shall
authenticate a replacement Note in such form as the Notes mutilated, lost,
destroyed or wrongfully taken if, in the case of a lost, destroyed or wrongfully
taken Note, the Holder of such Note furnishes to the Issuer, the Principal
Paying Agent (in the case of a Global Note) and/or the Registrar (in the case of
a Definitive Note), evidence reasonably acceptable to them of the ownership and
36
the destruction, loss or theft of such Note. If required by the Principal Paying
Agent (in the case of a Global Note), the Registrar (in the case of a Definitive
Note) or the Issuer, an indemnity bond shall be posted, sufficient in the
judgment of each to protect the Issuer, the Principal Paying Agent (in the case
of a Global Note), or the Registrar (in the case of a Definitive Note) from any
loss that any of them may suffer if such Note is replaced. The Issuer may charge
such Holder for the Issuer's exceptional out-of-pocket expenses in replacing
such Note and the Registrar or Principal Paying Agent, as the case may be, may
charge the Issuer for its expenses in replacing such Note. Every replacement
Note shall constitute an additional obligation of the Issuer.
Section 2.9 Intentionally Deleted
Section 2.10 Fees, Duties and Taxes
The Issuer will pay any stamp, issue, registration, documentary and
other fees, duties and taxes, including interest and penalties, payable (i) in
Poland, the United Kingdom, Belgium, Luxembourg or the Netherlands on or in
connection with (a) the execution and delivery of this Indenture and (b) the
constitution and original issue of any Notes and (ii) in any jurisdiction in
connection with any action taken by or on behalf of the Trustee or (where
permitted under these presents so to do) any Holder to enforce this Indenture.
The obligations in this Section 2.10 shall survive the termination, defeasance
or discharge of this Indenture.
Section 2.11 Intentionally Deleted
Section 2.12 Cancellation
The Issuer at any time may deliver Notes to the Principal Paying
Agent for cancellation. The Registrar and the Paying Agent shall forward to the
Principal Paying Agent any Notes surrendered to them for registration of
transfer, exchange, payment, redemption, replacement, cancellation or purchase.
The Principal Paying Agent shall cancel all Notes surrendered for registration
of transfer, exchange, payment, redemption, replacement, cancellation or
purchase and shall dispose of cancelled Notes in accordance with its policy of
disposal, unless the Issuer directs the Principal Paying Agent to return such
Notes to the Issuer, and, if so disposed, shall deliver a certificate of
disposition thereof to the Issuer. The Issuer may not reissue or resell, or
issue new Notes to replace, Notes that the Issuer, the Guarantors, the Registrar
and the Principal Paying Agent has redeemed, paid or purchased, or that have
been delivered to the Principal Paying Agent for cancellation.
Section 2.13 Defaulted Interest
If the Issuer defaults on a payment of interest on the Notes, it
shall pay the defaulted interest plus (to the extent permitted by law) any
interest payable on the defaulted interest, in accordance with the terms hereof,
to (a) the Holders of Definitive Notes, if any, on a subsequent special record
date, which date shall be at least five Business Days prior to the payment date
for such defaulted interest, and (b) if a Global Note is still outstanding, to
the Holder of such Global Note on such payment date. The Issuer shall fix such
special record date and payment date in a manner satisfactory to the Trustee. At
least 15 days before such special record date, the Issuer shall mail to each
Holder of Definitive Notes, if any, and if any Global Note is still outstanding,
to the Holder of such Global Note, a notice that states the special record date,
the payment date and the amount of defaulted interest and interest payable on
such defaulted interest, if any, to be paid.
37
Section 2.14 ISIN and CUSIP Numbers
The Issuer in issuing the Notes may use an ISIN number and/or any
common code required by Euroclear and Clearstream, Luxembourg and CUSIP number
required by DTC and if so, such ISIN number and/or such common code and/or CUSIP
number shall be included in notices of redemption, repurchase or exchange as a
convenience to Holders; provided, however, that any such notice may state that
no representation is made as to the correctness or accuracy of the ISIN number
and/or common code and/or CUSIP number printed in the notice or on the Notes,
and the reliance may be placed only on the other identification numbers printed
on the Notes. The Issuer will promptly notify the Trustee, the Paying Agent and
the Registrar of any change in the ISIN number and/or common code and/or CUSIP
number.
Section 2.15 Deposit of Moneys.
In the case of the European Restricted Global Note, the Regulation S
Global Note and any Definitive Notes, prior to 10.00 a.m, London time on the
second Business Day preceding each Interest Payment Date, the Maturity Date of
the Notes, any Redemption Date under Section 10 and on the Business Day
immediately following any acceleration of the Notes pursuant to Section 4.2, the
Issuer shall deposit with the Principal Paying Agent in immediately available
funds money, in Euros, sufficient to make cash payments, if any, due on such
Interest Payment Date, Maturity Date, Redemption Date or Business Day, as the
case may be, in a timely manner which permits the Principal Paying Agent to
remit payment to the Holders on such Interest Payment Date, Maturity Date,
Redemption Date or Business Day, as the case may be.
In the case of the DTC Restricted Global Note, in the event that the
Holder elects to receive payment in Euros, then prior to 10.00 a.m. New York
time on the second Business Day preceding each Interest Payment Date, the
Maturity Date; the Redemption Date, and on the Business Day immediately
following any acceleration of the Notes pursuant to Section 4.2, the Issuer
shall deposit with the U.S. Paying Agent in immediately available funds money,
in Euros, sufficient to make cash payments, if any, due on such Interest Payment
Date, Maturity Date, Redemption Date or Business Day, as the case may be, in a
timely manner which permits the U.S. Paying Agent to remit payment to the
Holders on such Interest Payment Date, Maturity Date, Redemption Date or
Business Day, as the case may be. In the event the Holder of the DTC Restricted
Global Note does not elect to receive payment in Euros, then prior to 10:00 a.m.
New York time on the third Business Day preceding each Interest Payment Date,
the Maturity Date, Redemption Date and on the Business Day immediately following
any acceleration of the Notes pursuant to Section 4.2, the Issuer shall deposit
with the U.S. Paying Agent in immediately available funds money, in Euros,
sufficient to make cash payments under the DTC Restricted Global Note, if any,
due on such Interest Payment Date, Maturity Date, Redemption Date or Business
Day, as the case may be, in a timely manner which permits the U.S. Paying Agent
to remit payment to the Holders on such Interest Payment Date, Maturity Date or
Business Day, as the case may be.
Payments with respect to the DTC Restricted Global Note will be
converted by the U.S. Paying Agent into U.S. dollars prior to payment, except to
the extent that the DTC notifies the U.S. Paying Agent that a holder of a
beneficial interest in a DTC Restricted Global Note has elected to receive
payment in Euros in accordance with governing DTC procedures.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.1 Satisfaction and Discharge of Indenture
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of Notes expressly
provided for herein or pursuant hereto) and the Trustee, at the expense of
38
Parent, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(1) either
(a) all Notes theretofore authenticated and delivered (other than (i)
Notes which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 2.8 or 4.6 and (ii) Notes 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 Issuer and thereafter repaid to the Issuer
or discharged from such trust, as provided in Section 9.3) have been delivered
to the Trustee for cancellation; or
(b) all Notes not theretofore delivered to the Principal Paying Agent
for cancellation
(i) have become due and payable; or
(ii) will become due and payable at their Stated Maturity
within one year; or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Principal Paying Agent for the giving
of notice of redemption by the Principal Paying Agent in the name, and
at the expense, of the Issuer,
and the Issuer, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as trust funds
in Euros, Government Securities, or a combination thereof in trust for such
purpose an amount sufficient to pay and discharge the entire Indebtedness on
such Notes not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest on such Notes to the date of such
deposit (in the case of Notes which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Issuer or Parent have paid or caused to be paid all other
sums payable hereunder by the Issuer or Parent; and
(3) the Issuer has delivered to the Trustee an Officer's Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Issuer to the Trustee under Section 5.7 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Trustee under Section 3.2 and the last
paragraph of Section 9.3 shall survive.
Section 3.2 Application of Trust Money
Subject to the provisions of the last paragraph of Section 9.3, all
money deposited with the Trustee pursuant to Section 3.1 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Issuer 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.
39
ARTICLE 4
REMEDIES
Section 4.1 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):
(i) default in the payment of any interest on any Notes when
it becomes due and payable and continuance of such default for a
period of 30 days;
(ii) default in the payment of the principal of or premium,
if any, on any Notes at their Maturity;
(iii) (A) default in the performance, or breach, of any
covenant or agreement of the Issuer or Parent contained in this
Indenture (other than a default in the performance, or breach, of a
covenant or agreement which is specifically dealt with in the
immediately preceding clauses (i) and (ii) or in clauses (B), (C), (D)
or (E) of this clause (iii)) and continuance of such default or breach
for a period of 30 days after written notice shall have been given to
the Issuer by the Trustee or to the Issuer and the Trustee by the
holders of at least 25% in aggregate principal amount of the Notes
then outstanding; (B) default in the performance or breach of the
provisions of Section 9.16; (C) default in the performance or breach
of the provisions of Article 7; (D) failure to make or consummate a
Change of Control Offer in accordance with the provisions of Section
9.15; and (E) declaration by Parent of any dividend in violation of
Section 9.10;
(iv) (A) one or more defaults in the payment of any amounts
due on Indebtedness of Parent or any Restricted Subsidiary aggregating
(euro)10.0 million or more (or, to the extent not denominated in
Euros, the Euro Equivalent thereof) when the same becomes due and
payable, and such default or defaults shall have continued after any
applicable grace period and shall not have been cured or waived or (B)
Indebtedness of Parent or any Restricted Subsidiary aggregating
(euro)10.0 million or more (or, to the extent not denominated in
Euros, the Euro Equivalent thereof) shall have been accelerated or
otherwise declared due and payable, or required to be prepaid or
repurchased (other than by regularly scheduled required prepayment and
other than pursuant to any mandatory repurchase provision in Section
9.15 or 9.16 hereof), prior to the Stated Maturity thereof;
(v) one or more final judgments, orders or decrees of any
court or regulatory agency shall be rendered against Parent, any
Guarantor or any Significant Subsidiary or their respective properties
for the payment of money, either individually or in an aggregate
amount, in excess of (euro)10.0 million (or, to the extent not
denominated in Euros, the Euro Equivalent thereof) and either (A) an
enforcement proceeding shall have been commenced by any creditor upon
such judgment or order or (B) there shall have been a period of 45
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, was not in effect;
40
(vi) the entry of a decree or order by a court having
jurisdiction in the premises adjudging the Issuer, Parent, any
Guarantor or any Significant Subsidiary a bankrupt (including
"faillissement") or insolvent (including "in surseance van betaling")
, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Issuer,
Parent, any Guarantor or any Significant Subsidiary under a Bankruptcy
Code or any other applicable United States or foreign federal or state
law, or appointing a receiver, liquidator, assignee, trustee,
sequestrator (or other similar official) of the Issuer, Parent, any
Guarantor 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;
(vii) the institution by the Issuer, Parent, any Guarantor
or any Significant Subsidiary of proceedings to be adjudicated a
bankrupt or insolvent, or the consent by it or any of them to the
institution of bankruptcy (including "faillissement") or insolvency
(including "in surseance van betaling") proceedings against it or any
of them, or the filing by it or any of them of a petition or answer or
consent seeking reorganization or relief under a Bankruptcy Code or
any other applicable United States or foreign federal or state law, or
the consent by it or any of them to the institution of bankruptcy or
insolvency proceedings against the Issuer, Parent or any Guarantor or
to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee, sequestrator (or other
similar official) of the Issuer, Parent, any Guarantor 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 debts generally
as they become due;
(viii) any Guarantee becomes, or any Guarantor asserts or
acknowledges in writing that its Guarantee is, invalid or
unenforceable;
(ix) (a) any of the Security Documents ceases to be in full
force and effect, (b) except as permitted under this Indenture, any of
the Security Documents ceases to give the holders of the New Notes any
of the Liens or other security interests purported to be created
thereby, or (c) any of the Security Documents is declared null or
void, or (d) there is a material breach in any obligations of Parent
and/or its Subsidiaries under the Security Documents, provided that,
in the case of any such cessation or declaration that does not
materially adversely affect the rights of the holders of the Notes,
such cessation or declaration shall not become an Event of Default
unless it continues unremedied for 30 days after the Issuer or any of
its Subsidiaries receives actual knowledge of such cessation or
declaration or for such period as may be necessary to perfect the
security affected by such cessation or declaration.
Section 4.2 Acceleration of Maturity; Rescission and Annulment
If an Event of Default (other than an Event of Default specified in
clause (vi) or (vii) of Section 4.1) occurs and is continuing, then in every
such case the Trustee at its discretion may, and the Trustee upon the written
request of the Holders of not less than 25.0% in aggregate principal amount of
the Outstanding Notes shall, subject, in each case to being indemnified to its
satisfaction, by written notice declare the aggregate principal amount of,
premium, if any, and accrued interest and Additional Amounts, if any, on all of
41
the Outstanding Notes to be due and payable immediately and upon any such
declaration all such amounts payable in respect of the Notes shall become
immediately due and payable. If an Event of Default described in clause (vi) or
(vii) of Section 4.1 occurs and is continuing, then the aggregate principal
amount of, premium, if any, and accrued interest and Additional Amounts, if any,
on all the Outstanding Notes shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee.
At any time after a declaration of acceleration has been made but
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a majority
in aggregate principal amount of the Outstanding Notes, by written notice to the
Issuer and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Issuer or Parent have paid or deposited with the Trustee a
sum sufficient, in Euros, to pay:
(A) all overdue interest and Additional Amounts, if any, on
all Outstanding Notes,
(B) all unpaid principal and premium, if any, on any
Outstanding Notes that have become due otherwise than by such
declaration of acceleration together with interest and Additional
Amounts, if any, on such unpaid principal at the rate borne by the
Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate or
rates borne by such Notes, 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 Events of Default, other than the non-payment of principal
(or premium, if any, on) or interest or Additional Amounts, if any, on Notes
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 4.14; and
(3) the rescission would not conflict with any judgment or decree of
a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a
declaration of acceleration in respect of the Notes because of an Event of
Default specified in Section 4.1(iv) shall have occurred and be continuing, such
Event of Default and all consequences thereof (including, without limitation,
any acceleration or resulting payment default) shall be automatically annulled,
waived and rescinded if the Indebtedness that is the subject of such Event of
Default has been discharged or the holders thereof have rescinded their
declaration of acceleration in respect of such Indebtedness or the default that
is the basis for such Event of Default has been cured, and written notice of
such discharge or rescission or cure, as the case may be, shall have been given
to the Trustee by the Issuer and countersigned by the holders of such
Indebtedness or a trustee, fiduciary or agent for such holders, within 30 days
42
after such declaration of acceleration in respect of the Notes, and no other
Event of Default has occurred during such 30-day period which has not been cured
or waived during such period.
Section 4.3 Covenant to Pay and Suits for Enforcement by Trustee
The Issuer covenants to the Trustee that if:
(a) default is made in the payment of any installment of interest or
Additional Amounts, if any, on any Note when such interest becomes due and
payable and such default continues for a period of 30 days; or
(b) default is made in the payment of the principal of (or premium,
if any, on) any Note at the Maturity thereof,
the Issuer will, upon demand of the Trustee, pay to the Trustee for
the benefit of the Holders of such Notes, the whole amount then due and payable
on such Notes for principal (and premium, if any) and interest and Additional
Amounts, if any, 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 Notes, and,
in addition thereto, such further amount as shall be sufficient to cover the
costs and expenses of collection, including the proper compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel. The Trustee
will hold the benefit of these covenants on trust for the Holders and itself in
accordance with this Indenture.
If the Issuer 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 Issuer, Parent or any other obligor upon the Notes and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Issuer, Parent or any other obligor upon the Notes, 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, including those arising under
the Security Documents, whether for the specific enforcement of any covenant or
agreement in this Indenture, in aid of the exercise of any power granted herein,
to enforce any other proper remedy or in the order the Trustee deems appropriate
in the interests of the Holders of the Notes.
Section 4.4 Trustee May File Proofs of Claim
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, moratorium, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Issuer, any of Parent or any other
obligor upon the Notes or the property of the Issuer, Parent or of such other
obligor or their creditors, the Trustee (irrespective of whether the principal
of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Issuer or Parent for the payment of overdue principal,
premium, if any, or interest and Additional Amounts, if any) shall be entitled
and empowered, by intervention in such proceeding or otherwise:
43
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest and Additional Amounts,
if any, owing and unpaid in respect of the Notes 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 proper
compensation, expenses, disbursements and advances of the Trustee, 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 (including a "curator"), assignee,
trustee, liquidator, administrator (including a "bewindvoerder"), sequestrator
or similar official in any such judicial proceeding is hereby authorized by each
Holder, in respect of any such claim proven by the Trustee, 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, its agents and counsel, and any other amounts due to the Trustee
under Section 5.7.
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 Notes 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 4.5 Trustee May Enforce Claims Without Possession of Notes
All rights of action and claims under this Indenture, the Notes or
any Guarantee may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, 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, its agents and counsel, be
for the ratable benefit of the Holders of the Notes in respect of which such
judgment has been recovered.
Section 4.6 Application of Money Collected
Any money collected by the Trustee pursuant to this Indenture,
including money received by the Trustee pursuant to the Security Documents and
the Agency Agreement, 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 or Additional Amounts, if
any, upon presentation of the Notes 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 and the
Appointees under Section 5.7;
SECOND: To the payment of the amounts then due and unpaid for
principal (and premium, if any) and interest, and Additional Amounts, if any, on
the Notes 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 Notes for principal (and premium, if any) and
interest, and Additional Amounts, if any, respectively; and
44
THIRD: The balance, if any, to the Issuer (without prejudice to, or
liability in respect of, any questions as to how such payment to the Issuer
shall be dealt with as between the Issuer, the Guarantors and other Persons).
Section 4.7 Investment by Trustee
(a) If the amount of the moneys at any time available for the payment
of principal, premium (if any) and interest in respect of the Notes under
Section 4.6 shall be less than 10 per cent. of the principal amount of the Notes
then outstanding the Trustee may at its discretion invest such moneys in some or
one of the investments authorized below. The Trustee at its discretion may vary
such investments and may accumulate such investments and the resulting income
until the accumulations, together with any other funds for the time being under
the control of the Trustee and available for such purpose, amount to at least 10
per cent. of the principal amount of the Notes then outstanding and then such
accumulations and funds shall be applied under Section 4.6.
(b) Any moneys which under the trusts of this Indenture ought to or
may be invested by the Trustee may be invested in the name or under the control
of the Trustee in Euros, Government Securities or any combination thereof
whether or not they produce income or by placing the same on deposit in the name
or under the control of the Trustee at such bank or other financial institution
and in such currency as the Trustee may think fit. If that bank or institution
is the Trustee or a Subsidiary, holding or associated company of the Trustee, it
need only account for an amount of interest equal to the amount of interest
which would, at then current rates, be payable by it on such a deposit to an
independent customer. The Trustee may at any time vary any such investments for
or into other investments or convert any moneys so deposited into any other
currency and shall not be responsible for any loss resulting from any such
investments or deposits, whether due to depreciation in value, fluctuations in
exchange rates or otherwise.
Section 4.8 Limitation on Suits
The Trustee shall not be bound to take any proceedings mentioned in
Section 4.3 or exercise any right or power or to take any other action in
relation to this Indenture.
Subject as follows in this Section 4.8, only the Trustee may enforce
the provisions of this Indenture and the Notes. To the extent permitted by
applicable law, no Holder shall be entitled to proceed directly against the
Issuer and/or any Guarantor to enforce the performance of any of the provisions
of this Indenture or the Notes unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25.0% in principal amount of
the Outstanding Notes 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) such Holder or Holders have offered to the Trustee an
indemnity or security satisfactory to the Trustee against
the costs, expenses and Liabilities to be incurred or to
which it may render itself liable in compliance with such
request;
(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
45
(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 principal amount of the
Outstanding Notes;
it being understood and intended that no one or more Holders shall
have any right in any manner whatever 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 4.9 Unconditional Right of Holders to Receive Principal,
Premium and Interest
Subject to Section 4.8, the Holder of any Note shall have the right,
which is absolute and unconditional, to receive payment, as provided herein
(including, if applicable, as provided in Article 12) and in such Note, of the
principal of (and premium and Additional Amounts, if any) and interest, and
Additional Amounts, if any, on such Note on the respective Stated Maturity (or,
in the case of redemption, on the Redemption Date).
Section 4.10 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 Issuer, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies, to the extent possible and permitted, of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 4.11 Rights and Remedies Cumulative
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.8, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders 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 4.12 Delay or Omission Not Waiver
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders 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 4.13 Control by Holders
The Holders of not less than a majority in principal amount of the
Outstanding Notes 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:
46
(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.
Section 4.14 Waiver of Past Defaults
The Holders of not less than a majority in aggregate principal amount
of the Outstanding Notes may on behalf of the Holders of all the Notes 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, or Additional Amounts, if any, on any
Note; or
(2) in respect of a covenant or provision hereof which under
Article 8 cannot be modified or amended without the consent
of the Holder of each Outstanding Note 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 4.15 Waiver of Stay, Extension or Usury Laws
Each of the Issuer, Parent and any Guarantor or other obligor of the
Notes covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and each of the Issuer, Parent and any other
obligor on the Notes (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Section 4.16 Judgment Currency
All amounts payable under this Indenture are payable in Euros. Any
amount received or recovered in currency other than Euros (whether as a result
of, or of the enforcement of, a judgment or order of a court of any
jurisdiction, in the bankruptcy, moratorium of payments, winding up or
dissolution of the Issuer or the Guarantors, as the case may be, or otherwise)
by any Holder in respect of any sum expressed to be due to it from the Issuer or
the Guarantors, as the case may be, shall only constitute discharge of the
Issuer or the Guarantors, as the case may be, to the extent of the Euro amount
which the recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that Euro amount is less than the Euro amount
expressed to be due to the recipient under any Note or the Guarantee, the Issuer
or the Guarantors, as the case may be, shall indemnify such recipient against
any loss sustained by it as a result. In any event, the Issuer or the
Guarantors, as the case may be, shall indemnify the recipient against the cost
47
of making any such purchase. For the purposes of this paragraph, it will be
sufficient for the Holder to certify in reasonably satisfactory manner
(indicating the sources of information used) that it would have suffered a loss
had an actual purchase of Euros been made with the amount so received in that
other currency on the date of receipt or recovery (or, if a purchase of Euros on
such date had not been practicable, on the first date on which it would have
been practicable, it being required that the need for a change of date be
certified in the manner mentioned above). These indemnities constitute an
obligation separate and independent from the Issuer's or Guarantors', as the
case may be, other obligations, shall give rise to a separate and independent
cause of action, shall apply irrespective of any waiver granted by any Holder
and shall continue in full force and effect despite any other judgment, order,
claim or proof for a liquidated amount in respect of any sum due under any Note
or the Guarantee or any other judgment or order.
ARTICLE 5
THE TRUSTEE
Section 5.1 Notice of Defaults
Within 30 days after the occurrence of any Default hereunder, the
Trustee at the cost of the Issuer, shall transmit to the Holders notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, however, that, except in the case of a Default in the
payment of the principal of (or premium, if any) or interest, or Additional
Amounts, if any, on any Note, 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; and provided further that in the case of any Default of the character
specified in Section 4.1(iv) no such notice to Holders shall be given until at
least 30 days after the occurrence thereof.
Section 5.2 Duties of Trustee
(a) The duty of care contained in Section 1 of the Trustee Act 2000
shall not apply to this Indenture. However, subject to paragraph (c) below,
nothing in this Indenture shall in any case in which the Trustee has failed to
show the degree of care and diligence required of it as trustee having regard to
the provisions of this Indenture conferring on it any trusts, powers,
authorities or discretions exempt the Trustee from or indemnify it against any
liability for breach of trust, its own negligent action, its own negligent
failure to act or its own wilful misconduct.
(b) The Trustee will perform such duties and only such duties as are
specifically set forth herein and no implied covenants or obligations shall be
read into this Indenture against the Trustee.
(c) The Trustee shall not be relieved from liability for its own
negligent action, its own negligent failure to act or its own wilful misconduct,
except that:
(i) this paragraph does not limit the effect of paragraph
(b) of this Section 5.2 or Section 5.3; and
(ii) the Trustee shall not be liable with respect to any
action it takes or omits to take in accordance with a direction
received by it pursuant to Section 4.8;
(d) The Trustee shall be under no obligation to exercise any of the
discretions, authorities, rights or powers vested in it by this Indenture at the
request or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee an indemnity satisfactory to it
48
against the losses, costs, charges, expenses and other liabilities which might
be incurred by it in compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to the provisions of this Section 5.2.
Section 5.3 Rights of Trustee
The Trustee shall have all the powers conferred upon trustees by the
Trustee ▇▇▇ ▇▇▇▇ and the Trustee ▇▇▇ ▇▇▇▇ of England and Wales and by way of
supplement thereto it is expressly declared as follows:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting or if the Trustee
wishes to be satisfied as to any fact or matter in relation to its obligations
under this Indenture, it may require an Officer's Certificate and/or an Opinion
of Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on any such Certificate or Opinion or on any
Board Resolution provided pursuant to this Indenture, and shall not be bound to
call for further evidence.
(c) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers provided that the Trustee's conduct does not constitute bad faith, wilful
misconduct or negligence.
(d) The Trustee shall not be charged with knowledge of any Default or
Event of Default, of the identity of any Subsidiary, Guarantor or of the
existence of any Change of Control or Asset Sale unless the Trustee shall have
received notice in writing thereof from the Issuer, any Guarantor or any Holder,
as applicable, or unless an officer of the Trustee with responsibility for the
administration of the trusts of this Indenture shall have actual knowledge
thereof.
(e) 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 therein, upon certificates or opinions conforming to the requirements
of this Indenture but the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this Indenture.
(f) The Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer unless it is proved that such Responsible
Officer was negligent in ascertaining the pertinent facts.
(g) No provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial Liability in the
performance of any of its duties hereunder or in the exercise of any of its
rights or powers, if it believes that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(h) The Trustee may in relation to this Indenture act on the advice,
opinion, certificate or report of or any information obtained from any lawyer,
valuer, accountant, surveyor, banker, broker, auctioneer or other expert whether
obtained by the Issuer, any Guarantor, the Trustee or otherwise, and whether or
not such advice, opinion, certificate, report or information, and/or any
engagement letter or other document entered into by the Trustee in connection
49
therewith, contains a monetary or other limit on the liability of any such
expert, and shall not be responsible for any Liability occasioned by so acting.
(i) Any such advice, opinion, certificate, report or information may
be sent or obtained by letter, telex, telegram, facsimile transmission or cable
and the Trustee shall not be liable for acting in good faith on any advice,
opinion or information purporting to be conveyed by any such letter, telex,
telegram, facsimile transmission or cable although the same shall contain some
error or shall not be authentic.
(j) The Trustee may call for and shall be at liberty to (but shall
not be obliged to) accept as sufficient evidence of any fact or matter or the
expediency of any transaction or thing an Officer's Certificate and the Trustee
shall not be bound in any such case to call for further evidence or be
responsible for any Liability that may be occasioned by it or any other person
acting on such certificate.
(k) The Trustee shall be at liberty to hold this Indenture and any
other documents relating thereto or to deposit them in any part of the world
with any banker or banking company or company whose business includes
undertaking the safe custody of documents or lawyer or firm of lawyers
considered by the Trustee to be of good repute and the Trustee shall not be
responsible for or required to insure against any Liability incurred in
connection with any such holding or deposit and may pay all sums required to be
paid on account of or in respect of any such deposit.
(l) The Trustee shall not be responsible for the receipt or
application of the proceeds of the issue of any of the Notes by the Issuer, the
exchange of any Global Note for another Global Note or Definitive Notes the
delivery of any Global Note or Definitive Note to the person(s) entitled to it
or them.
(m) The Trustee shall not be bound to give notice to any person of
the execution of any documents comprised or referred to in this Indenture or to
take any steps to ascertain whether any Default or any Event of Default has
happened and, until it shall have actual knowledge or express notice pursuant to
this Indenture to the contrary, the Trustee shall be entitled to assume that no
Default or Event of Default has happened and that each of the Issuer and the
Guarantors is observing and performing all its obligations under this Indenture.
(n) Save as expressly otherwise provided in this Indenture, the
Trustee shall have absolute and uncontrolled discretion as to the exercise or
non-exercise of its trusts, powers, authorities and discretions under this
Indenture (the exercise or non-exercise of which as between the Trustee and the
Holders shall be conclusive and binding on the Holders) and shall not be
responsible for any Liability which may result from their exercise or
non-exercise.
(p) The Trustee shall not be liable to any person by reason of having
accepted as valid or not having rejected any Note purporting to be such and
subsequently found to be forged or not authentic.
(q) Any consent or approval given by the Trustee for the purposes of
this Indenture may be given on such terms and subject to such conditions (if
any) as the Trustee thinks fit and notwithstanding anything to the contrary in
this Indenture may be given retrospectively.
(r) The Trustee shall not (unless and to the extent ordered so to do
by a court of competent jurisdiction) be required to disclose to any Holder any
information (including, without limitation, information of a confidential,
financial or price sensitive nature) made available to the Trustee by the
50
Issuer, any Guarantor or any other person in connection with this Indenture and
no Holder shall be entitled to take any action to obtain from the Trustee any
such information.
(s) Where it is necessary or desirable for any purpose in connection
with this Indenture to convert any sum from one currency to another it shall
(unless otherwise provided by these presents or required by law) be converted at
such rate or rates, in accordance with such method and as at such date for the
determination of such rate of exchange, as may be agreed by the Trustee and the
Issuer as relevant and any rate, method and date so agreed shall be binding on
the Issuer, the Guarantors and the Holders.
(t) The Trustee as between itself and the Holders may determine all
questions and doubts arising in relation to any of the provisions of this
Indenture. Every such determination, whether or not relating in whole or in part
to the acts or proceedings of the Trustee, shall be conclusive and shall bind
the Trustee and the Holders.
(u) In connection with the exercise by it of any of its trusts,
powers, authorities and discretions under this Indenture, the Trustee shall have
regard to the general interests of the Holders as a class but shall not have
regard to any interests arising from circumstances particular to individual
Holders (whatever their number) and, in particular but without limitation, shall
not have regard to the consequences of any such exercise for individual Holders
(whatever their number) resulting from their being for any purpose domiciled or
resident in, or otherwise connected with, or subject to the jurisdiction of, any
particular territory or any political sub-division thereof and the Trustee shall
not be entitled to require, nor shall any Holder be entitled to claim, from the
Issuer, the Guarantors, the Trustee or any other person any indemnification or
payment in respect of any tax consequence of any such exercise upon individual
Holders except to the extent already provided for in Section 9.23 and/or any
undertaking given in addition thereto or in substitution therefor under this
Indenture.
(v) Any trustee of this Indenture being a lawyer, accountant, broker
or other person engaged in any profession or business shall be entitled to
charge and be paid all usual professional and other charges for business
transacted and acts done by him or his firm in connection with the trusts of
this Indenture and also his reasonable charges in addition to disbursements for
all other work and business done and all time spent by him or his firm in
connection with matters arising in connection with these presents.
(w) The Trustee may whenever it thinks fit (after consultation with
the Issuer) delegate by power of attorney or otherwise to any person or persons
or fluctuating body of persons (whether being a joint trustee of these presents
or not) all or any of its trusts, powers, authorities and discretions under this
Indenture. Such delegation may be made upon such terms (including power to
sub-delegate) and subject to such conditions and regulations as the Trustee may
in the interests of the Holders think fit. Provided that the Trustee has
exercised reasonable care in the selection of such delegate the Trustee shall
not be under any obligation to supervise the proceedings or acts of any such
delegate or sub-delegate or be in any way responsible for any Liability incurred
by reason of any misconduct or default on the part of any such delegate or
sub-delegate. The Trustee shall within a reasonable time after any such
delegation or any renewal, extension or termination thereof give notice thereof
to the Issuer.
(x) The Trustee has appointed the Security Agent and may in the
conduct of the trusts of this Indenture instead of acting personally employ and
pay other agents (whether being a lawyer or other professional person) to
transact or conduct, or concur in transacting or conducting, any business and to
do, or concur in doing, all acts required to be done in connection with this
Indenture (including the receipt and payment of money and the administration and
enforcement of the rights granted to the Trustee in respect of the Collateral in
51
the Security Documents). Provided that the Trustee has exercised reasonable care
in the selection of such agent (other than in respect of the Security Agent) the
Trustee shall not be in any way responsible for any Liability incurred by reason
of any misconduct or default on the part of the Security Agent or any such other
agent or be bound to supervise the proceedings or acts of the Security Agent or
any such other agent.
(y) The Trustee shall not be responsible for the execution, delivery,
legality, effectiveness, adequacy, genuineness, validity, performance,
enforceability or admissibility in evidence of this Indenture or any other
document relating or expressed to be supplemental hereto and shall not be liable
for any failure to obtain any licence, consent or other authority for the
execution, delivery, legality, effectiveness, adequacy, genuineness, validity,
performance, enforceability or admissibility in evidence of this Indenture or
any other document relating or expressed to be supplemental hereto. The Security
Agent has been appointed by the Trustee to act for the Trustee and shall not be
liable for any misconduct, default or acting upon incorrect instructions given
to it by the Trustee.
Section 5.4 Trustee Not Responsible for Recitals or Issuance of Notes
The recitals contained herein and in the Notes shall be taken as the
statements of the Issuer and the Guarantors, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Notes, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Notes and perform its obligations hereunder, subject
to the qualifications set forth therein. The Trustee shall not be accountable
for the use or application by the Issuer of the Notes or the proceeds therefrom.
Section 5.5 Individual Rights of Trustee
Neither the Trustee nor any director or officer or holding company,
Subsidiary or associated company of a corporation acting as a trustee under this
Indenture shall by reason of its or his fiduciary position be in any way
precluded from:
(i) entering into or being interested in any contract or
financial or other transaction or arrangement with the Issuer, any
Guarantor or any person or body corporate associated with the Issuer,
any Guarantor (including without limitation any contract, transaction
or arrangement of a banking or insurance nature or any contract,
transaction or arrangement in relation to the making of loans or the
provision of financial facilities or financial advice to, or the
purchase, placing or underwriting of or the subscribing or procuring
subscriptions for or otherwise acquiring, holding or dealing with, or
acting as paying agent in respect of, the Notes or any other notes,
bonds, stocks, shares, debenture stock, debentures or other securities
of, the Issuer, any Guarantor or any person or body corporate
associated as aforesaid); or
(ii) accepting or holding the trusteeship of any other trust
deed constituting or securing any other securities issued by or
relating to the Issuer, any Guarantor or any such person or body
corporate so associated or any other office of profit under the
Issuer, any Guarantor or any such person or body corporate so
associated
and shall be entitled to exercise and enforce its rights, comply with
its obligations and perform its duties under or in relation to any such
contract, transaction or arrangement as is referred to in (i) above or, as the
case may be, any such trusteeship or office of profit as is referred to in (ii)
above without regard to the interests of the Holders and notwithstanding that
the same may be contrary or prejudicial to the interests of the Holders and
shall not be responsible for any Liability occasioned to the Holders thereby and
52
shall be entitled to retain and shall not be in any way liable to account for
any profit made or share of brokerage or commission or remuneration or other
amount or benefit received thereby or in connection therewith.
Where any holding company, subsidiary or associated company of the Trustee or
any director or officer of the Trustee acting other than in his capacity as such
a director or officer has any information, the Trustee shall not thereby be
deemed also to have knowledge of such information and, unless it shall have
actual knowledge of such information, shall not be responsible for any loss
suffered by Holders resulting from the Trustee's failing to take such
information into account in acting or refraining from acting under or in
relation to these presents.
Section 5.6 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 Issuer.
Section 5.7 Compensation and Reimbursement
The Issuer and the Guarantors jointly and severally agree:
(1) to pay to the Trustee and the Security Agent remuneration for their
services as trustee or security agent (as applicable) as from the date
of this Indenture in respect of any ongoing action required to be
undertaken by the Trustee and the Security Agent in respect of the
Collateral under the Security Documents, such remuneration to be at
such rate as may from time to time be agreed between the Issuer and
the Trustee or the Security Agent (as applicable) together with an
amount in respect of all reasonable expenses incurred in relation to
such actions (including any fees of legal counsel to the Trustee or
the Security Agent (as applicable)). Such remuneration shall be
payable in priority to payments to the Holders.
(2) in the event of the occurrence of a Default or an Event of Default or
the Trustee considering it expedient or necessary or being requested
by the Issuer or any Guarantor to undertake duties which the Trustee
and the Issuer agree to be of an exceptional nature or otherwise
outside the scope of the normal duties of the Trustee under this
Indenture, to pay the Trustee and, where relevant, the Security Agent,
such additional remuneration as shall be agreed between them together
with an amount in respect of all reasonable expenses incurred in
relation to such duties (including any fees of legal counsel to the
Trustee and, where relevant, the Security Agent).
(3) in addition to pay to the Trustee and, where relevant, the Security
Agent, an amount equal to the amount of any value added tax or similar
tax chargeable in respect of its remuneration under this Indenture.
(4) In the event of the Trustee and the Issuer failing to agree:
(i) (in a case to which sub-clause (1) above applies) upon
the amount of the remuneration; or
(ii) (in a case to which sub-clause (2) above applies) upon
whether such duties shall be of an exceptional nature or otherwise
outside the scope of the normal duties of the Trustee under this
Indenture or the Security Agent under the Agency Agreement, or upon
such additional remuneration,
53
such matters shall be determined by a merchant or investment bank
(acting as an expert and not as an arbitrator) selected by the
Trustee and approved by the Issuer or, failing such approval,
nominated (on the application of the Trustee) by the President for
the time being of The Law Society of England and Wales (the expenses
involved in such nomination and the fees of such merchant or
investment bank being payable by the Issuer) and the determination of
any such merchant or investment bank shall be final and binding upon
the Trustee, the Security Agent, the Issuer and the Guarantors.
(5) Without prejudice to the right of indemnity by law given to trustees,
but subject to Section 5.2(a), the Issuer, failing whom Parent, shall
indemnify the Trustee and every Appointee and keep it or him
indemnified against all Liabilities to which it or he may be or become
subject or which may be properly incurred by it or him without
negligence or bad faith in the execution or purported execution of any
of its or his trusts, powers, authorities and discretions under this
Indenture or its or his functions under any such appointment or in
respect of any other matter or thing properly done or omitted in any
way relating to this Indenture or any such appointment. Neither the
Issuer nor Parent need reimburse the Trustee for any expense or
indemnify against any Liabilities incurred by the Trustee through its
own willful default, misconduct, negligence or bad faith.
(6) All amounts payable pursuant to sub-clause (5) above shall be payable
by the Issuer, failing whom Parent, on the date specified in a demand
by the Trustee and in the case of payments actually made by the
Trustee prior to such demand shall (if not paid within seven days
after such demand and the Trustee so requires) carry interest at the
rate of two per cent. per annum above the base rate from time to time
of National Westminster Bank Plc from the date specified in such
demand, and in all other cases shall (if not paid on the date
specified in such demand or, if later, within seven days after such
demand and, in either case, the Trustee so requires) carry interest at
such rate from the date specified in such demand. All remuneration
payable to the Trustee or the Security Agent, as the case may be,
shall carry interest at such rate from the due date therefor.
(7) Unless otherwise specifically stated in any discharge of this
Indenture the provisions of sub-clause (5) above shall continue in
full force and effect notwithstanding such discharge.
Section 5.8 Resignation and Removal: Appointment of Successor
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 5.9.
(b) The Trustee may resign at any time by giving written notice
thereof to the Issuer. If the instrument of acceptance by a successor Trustee
required by Section 5.9 shall not have been delivered to the Trustee within 30
days after the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(c) The Trustee may be removed at any time by Action of the Holders
of not less than a majority in principal amount of the Outstanding Notes,
delivered to the Trustee and to the Issuer.
(d) If at any time:
54
(1) 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, or
(2) the Trustee becomes incapable of acting as Trustee of this
Indenture
then, in any such case, (i) the Issuer, by a Board Resolution, may
remove the Trustee, or (ii) any Holder who has been a bona fide
Holder of a Note for at least six months 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
Issuer, by a Board Resolution, shall promptly appoint a successor Trustee who
shall have assigned to him each of the rights set forth in this Indenture
including the Trustee's rights arising from the Security Documents. If any of
the Trustee's rights relating to or, arising from, the Security Documents are
not assigned to the successor Trustee for whatever reason (including inability
to assign such rights under Polish law), then Parent shall, within 30 days of
the appointment of the successor Trustee, enter into and procure that the other
relevant parties enter into, new Security Documents in favour of the successor
Trustee to grant to such successor Trustee any and all rights of the Trustee
hereto in respect of the existing Security Documents and procure that the
Subsidiaries make the statements of Submission to Voluntary Execution to the
successor Trustee as are referenced herein. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Action of the Holders of a majority in
principal amount of the Outstanding Notes delivered to the Issuer 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 Issuer. If no successor Trustee shall have
been so appointed by the Issuer or the Holders and accepted appointment in the
manner hereinafter provided, the Trustee or any Holder who has been a bona fide
Holder of a Note for at least six months 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 issuer shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Notes 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.
Section 5.9 Acceptance of Appointment by Successor
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Issuer 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 Issuer
or the successor Trustee, such retiring Trustee shall, upon payment of its
charges, 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 Issuer shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts.
55
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 5.10 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 such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes 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 Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes 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 Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 5.11 Separate and Co-Trustees
The Trustee may, upon giving prior notice to, and after consultation
with, the Issuer (but without the consent of the Issuer, the Guarantors or the
Holders), appoint any person established or resident in any jurisdiction
(whether a Trust Corporation or not) to act either as a separate trustee or as a
co-trustee jointly with the Trustee:
(i) if the Trustee reasonably considers such appointment to
be in the interests of the Holders;
(ii) for the purposes of conforming to any legal
requirements, restrictions or conditions in any jurisdiction in which
any particular act or acts is or are to be performed; or
(iii) for the purposes of obtaining a judgment in any
jurisdiction or the enforcement in any jurisdiction of either a
judgment already obtained or any of the provisions of this Indenture
against the Issuer and/or any Guarantor.
Each of the Issuer and the Guarantors irrevocably appoints the
Trustee to be its attorney in its name and on its behalf to execute any such
instrument of appointment. Such a person shall (subject always to the provisions
of this Indenture) have such trusts, powers, authorities and discretions (not
exceeding those conferred on the Trustee by this Indenture) and such duties and
obligations as shall be conferred or imposed by the instrument of appointment.
The Trustee shall have power in like manner to remove any such person. Such
reasonable remuneration as the Trustee may pay to any such person, together with
any attributable Liabilities incurred by it in performing its function as such
separate trustee or co-trustee, shall for the purposes of this Indenture be
treated as Liabilities incurred by the Trustee.
56
Section 5.12 Trustee's Powers to be Additional
The powers conferred upon the Trustee by this Indenture shall be in
addition to any powers which may from time to time be vested in the Trustee by
the general law or as a holder of any of the Notes.
ARTICLE 6
HOLDERS LISTS AND REPORTS BY TRUSTEE AND ISSUER
Intentionally deleted.
ARTICLE 7
CONSOLIDATION, MERGER AND SALE OF ASSETS
Section 7.1 Parent May Consolidate, Etc., Only on Certain Terms
The Parent shall not in a single transaction or a series of related
transactions consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets substantially as an entirety to any other Person or
Persons or permit any Subsidiary to enter into any such transaction or series of
related transactions, if such transaction or series of related transactions, in
the aggregate, would result in the sale, assignment, conveyance, transfer, lease
or other disposition of all or substantially all of the properties and assets of
Parent and its Subsidiaries on a consolidated basis substantially as an entirety
to any Person or Persons, unless at the time and immediately after giving effect
thereto: (i) either (a) Parent will be the continuing corporation or (b) the
Person (if other than Parent) formed by such consolidation or into which Parent
or such Subsidiary is merged or the Person which acquires by sale, conveyance,
transfer, lease or other disposition, all or substantially all of the properties
and assets of Parent and its Subsidiaries on a consolidated basis substantially
as an entirety (the "SURVIVING Entity"), will (1) be a corporation organized and
validly existing under the laws of the Republic of Poland, the Netherlands,
Germany, the United Kingdom, France or the United States of America, any state
thereof or the District of Columbia and (2) expressly assume by a supplemental
indenture to this Indenture in form satisfactory to the Trustee, Parent's
obligations pursuant to the Guarantee for the due and punctual payment of the
principal of, premium, if any, on and interest, and Additional Amounts, if any,
on all the Notes and the performance and observance of every covenant of this
Indenture on the part of Parent to be performed or observed; (ii) immediately
before and after giving effect to such transaction or series of transactions on
a pro forma basis (and treating any obligation of Parent or any Subsidiary
incurred in connection with or as a result of such transaction or series of
transactions as having been incurred at the time of such transaction), no
Default or Event of Default shall have occurred and be continuing; (iii)
immediately before and immediately after giving effect to such transaction or
series of transactions on a pro forma basis (on the assumption that the
transaction or series of transactions occurred on the first day of the latest
fiscal quarter for which consolidated financial statements of Parent are
available immediately prior to the consummation of such transaction or series of
transactions with the appropriate adjustments with respect to the transaction or
series of transactions being included in such pro forma calculation), either (A)
Parent or the Surviving Entity, as the case may be, could incur at least
(euro)1.00 of additional Indebtedness (other than Permitted Indebtedness) under
the provisions of Section 9.9 or (B) (i) Parent or the Surviving Entity, as the
case may be, would have Consolidated Net Worth immediately after the transaction
equal to or greater than the Consolidated Net Worth of Parent immediately
preceding the transaction, and (ii) Parent or the Surviving Entity, as
applicable, would have a Consolidated Indebtedness to Annualized Consolidated
Operating Cash Flow Ratio that is equal to or lower than such ratio of Parent
immediately preceding such transaction, and (iv) if any of the property or
assets of Parent or any of their Restricted Subsidiaries would thereupon become
subject to any Lien, the provisions of Section 9.13 are complied with.
57
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, Parent or the Surviving
Entity, as the case may be, shall deliver to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officer's Certificate and an Opinion
of Counsel, each stating that such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, and if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with the requirements of this Indenture and that all
conditions precedent herein provided for relating to such transaction have been
complied with. Notwithstanding the foregoing, the provisions of this paragraph
will not apply to any transaction for the sole purpose of changing a
Subsidiary's corporate organization from a Polish limited liability company to a
Polish joint stock company or from a Polish joint stock company to a Polish
limited liability company.
Section 7.2 Successor Substituted
Upon any consolidation or merger, or any sale, assignment,
conveyance, transfer, lease or disposition of all or substantially all of the
properties and assets of Parent in accordance with Section 7.1 in which Parent
is not among the continuing obligors under this Indenture, the Surviving Entity
shall succeed to, and be substituted for, and may exercise every right and power
of, Parent under this Indenture with the same effect as if such successor had
been named as Parent herein. When a successor assumes all the obligations of its
predecessor under this Indenture or the Guarantees, the predecessor shall be
released from those obligations; provided that in the case of a transfer by
lease, the predecessor shall not be released from the payment of principal and
interest, and Additional Amounts, if any, on the Notes or its obligations under
the Guarantee.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Holders
Without the consent of any Holders, the Issuer or Parent, 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
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Issuer,
Parent or any other obligor on the Notes, and the assumption
by any such successor of the covenants of the Issuer, Parent
or other obligor contained herein and in the Notes and
Guarantees in accordance with Article 7;
(2) to add to the covenants of the Issuer, Parent or any other
obligor on the Notes for the benefit of the Holders or to
surrender any right or power conferred upon the Issuer,
Parent or any other obligor on the Notes, herein and in the
Notes or in any Guarantee;
(3) to cure any ambiguity, to correct or supplement any
provision herein or in the Notes or in any Guarantee which
may be defective or inconsistent with any other provision
herein or in the Notes or in any Guarantee, or to make any
other provisions with respect to matters or questions
arising under this Indenture, the Notes or any Guarantee;
provided that, in each case, such provisions shall not
adversely affect the interests of the Holders;
(4) to add a guarantor of the Notes under this Indenture;
58
(5) to evidence and provide the acceptance of the appointment of
a successor Trustee under this Indenture; or
(6) to mortgage, pledge, hypothecate or grant a security
interest in favor of the Trustee for the benefit of the
Holders as additional security for the payment and
performance of the Issuer's, Parent's and any future
Guarantor's obligations under this Indenture, in any
property, or assets, including any of which are required to
be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted, to the Trustee
pursuant to this Indenture or otherwise.
Section 8.2 Supplemental Indentures with Consent of Holders
With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Notes that are affected thereby, by Action
of said Holders delivered to the Issuer, Parent and the Trustee, the Issuer and
Parent, when authorized by or pursuant to their respective Board Resolutions,
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 of Notes under this Indenture, including,
without limitation, any provision of Article 11 hereof; provided, however, that
no such supplemental indenture shall be entered into or effective, without the
consent of at least three quarters in aggregate principal amount of the then
outstanding Notes in order to:
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Note, or reduce the
principal amount thereof or premium, if any, or the rate of
interest thereon or any premium payable upon the purchase
thereof, or change the coin or currency in which any Note or
any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such
payment after the Stated Maturity thereof (or, in the case
of redemption, on or after the Redemption Date);
(2) amend, change or modify the amount payable by the Issuer
pursuant to an Excess Proceeds Offer with respect to any
Asset Sale in accordance with Section 9.16 or the amount
payable by the Issuer pursuant to a Change of Control Offer
in the event of a Change of Control Triggering Event in
accordance with Section 9.15;
(3) reduce the percentage in principal amount of the Outstanding
Notes, the consent of whose Holders is required for any
waiver of compliance with certain provisions of this
Indenture;
(4) modify any provisions of this Section, Section 4.14 or
Section 9.22, except to increase the percentage in principal
amount of the Outstanding Notes required to take any of the
actions described therein or to provide that certain
additional provisions of this Indenture cannot be modified
or waived without the consent of the Holder of each
Outstanding Note affected thereby;
(5) amend or modify any of the provisions of this Indenture
relating to any guarantee of the Notes (including the
Guarantees), in any manner adverse to the Holders of such
Notes;
(6) amend, change or modify the amount payable by the Issuer and
the Guarantors pursuant to Section 5.7; or
59
(7) amend, change or modify any provisions of Section 9.23 in
any manner adverse to the Holders of the Notes.
It shall not be necessary for any Action of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Action shall approve the substance thereof.
Section 8.3 Execution of Supplemental Indentures
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture and an Officer's Certificate of Parent stating that all conditions
precedent to the execution of the supplemental indenture have been satisfied.
The Trustee may, but shall not be obligated to, enter into any such supplemental
indenture that affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 8.4 Effect of Supplemental Indentures
Upon the execution of any supplemental indenture under this Article,
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 Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
Section 8.5 Reference in Notes to Supplemental Indentures
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Issuer shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Issuer, to any such supplemental indenture may be prepared and executed by the
Issuer and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
Section 8.6 Notice of Supplemental Indentures
Promptly after the execution by the Issuer, Parent and the Trustee of
any supplemental indenture pursuant to the provisions of Section 8.2, the Issuer
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 1.6, setting forth in general terms the
substance of such supplemental indenture.
ARTICLE 9
COVENANTS
Section 9.1 Payment of Principal, Premium, if any, and Interest
The Issuer covenants with the Trustee and agrees for the benefit of
the Holders that it will duly and punctually pay the principal of (and premium,
if any), and interest and Additional Amounts on, the Notes in accordance with
the terms of the Notes and this Indenture.
The Issuer will pay the principal (which may include any increases
thereto following a Payment-in Kind Election, as defined below) on the Maturity
Date.
60
The Issuer promises to pay interest on the unpaid principal amount
hereof outstanding from time to time from the date hereof until such principal
amount in paid in full, at such interest rates, and payable at such times, as
are specified below
An installment of principal or interest shall be considered paid on
the date due if the Principal Paying Agent hold on such date immediately
available funds in Euros designated for and sufficient to pay such installment.
The Issuer shall pay interest on the unpaid principal amount of this
Note from the date of this Note until such principal amount shall be paid in
full, at a rate per annum equal to 10%; provided that at no time shall the
interest rate payable on this Note exceed the maximum interest permitted by
applicable law; provided further that, at the option of the Issuer on not less
than 10 Business Days' written notice to the Trustee and the Paying Agent prior
to any of the first, second, third and fourth Interest Payment dates therefor (a
"PAYMENT-IN-KIND ELECTION"), (a) the interest payable hereunder at such Interest
Payment Date shall instead be at a rate per annum equal to 12%, and (b) such
payment of interest at a rate per annum of 12% shall not be paid in cash but
shall be capitalized as of the date such interest would otherwise be payable and
constitute additional principal hereunder through a commensurate increase in the
principal amount and denomination per Note, such increased principal amount and
denomination per Note to be rounded down to the nearest whole Euro, and shall,
so long as Notes are listed on the Luxembourg Stock Exchange and the rules of
the Luxembourg Stock Exchange so require, notify the Luxembourg Stock Exchange
of such capitalisation of interest and the increased principal amount and
denomination per Note and shall cause to be published in a leading newspaper
having general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) notice to that effect.
Interest will be payable semi-annually (to the holders of record of
the Notes at the close of business on the Regular Record Date immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
23 June 2003.
Interest will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from 23 December 2002; provided
that, if there is no existing default in the payment of interest and if a Note
is authenticated between a Regulation Record Date referred to on the face
thereof and the next succeeding Interest Payment Date, interest shall accrue
from such Interest Payment Date. Interest will be computed on the basis of a
360-day year comprised of twelve 30-day months.
The Issuer shall pay interest on overdue principal and premium, if
any, and interest on overdue instalments of interest, to the extent lawful, at a
rate per annum equal to the rate of interest applicable to the Notes.
In the case of a Payment-in-Kind Election on the Global Notes, the
Issuer shall (a) instruct the Common Depositary and the DTC Nominee to deliver
the Global Notes to the Principal Paying Agent on the relevant Interest Payment
Date for increase by annotation and (b) authorize the Principal Paying Agent to
endorse Schedule A to the Global Note to reflect the applicable increase in
principal amount and denomination of the Global Note resulting from such
Payment-in-Kind Election, and the Principal Paying Agent shall notify the Common
Depositary and the DTC Nominee to record on a pro rata basis the changes to the
beneficial interests in such Global Notes in accordance with Applicable
Procedures that correspond to the changes in the Global Notes and (c) instruct
the Registrar to amend the Register to reflect such changes to the Global Notes.
In the event that the Issuer is informed by the Luxembourg Stock Exchange, the
Common Depository or the DTC Nominee that such capitalization of interest will
not be treated by such stock exchange or clearing system as fungible with the
existing Notes, the Issuer shall issue a new series of securities with
61
substantively the same term as the Notes (save as to principal amount and
denomination) representing the capitalized interest to be held by the Common
Depositary and the DTC Nominee on a pro rata basis for the holders of the
beneficial interests in the Global Notes.
In the case of a Payment-in-Kind Election on Definitive Notes, the
principal amount and denomination of each Definitive Note will be deemed to have
increased to reflect such Payment-in-Kind Election, with no Holder of a
Definitive Note being required to present such Definitive Note to effect such
increase, and the Issuer shall instruct the Registrar to amend the Register to
reflect such changes to the Definitive Notes.
Section 9.2 Maintenance of Office or Agency
The Issuer will maintain the offices and agencies specified in
Section 2.3.
Section 9.3 Money for Note Payments
If the Issuer shall at any time act as its own Paying Agent, it will,
one Business Day prior to each due date of the principal of (or premium, if any)
or interest on any of the Notes, 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 will promptly
notify the Trustee of its action or failure so to act.
Whenever the Issuer shall have one or more Paying Agents for the
Notes, in accordance with the provision of Section 2.15 it shall unconditionally
pay or procure to be paid to the Principal Paying Agent, , within the time
periods contemplated by Section 2.15, a sum sufficient to pay the principal (and
premium, if any), interest so becoming due on each Interest Payment Date,
Maturity Date, Redemption Date or Business Day (as applicable), 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 Issuer shall
promptly notify the Trustee of such action or any failure so to act.
The Issuer or Parent may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Officer's Certificate direct any Paying Agent to pay, to the Trustee all
sums held in trust by the Issuer, Parent 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 Issuer, Parent 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 Issuer or Parent, in trust for the payment of the principal of (or
premium, if any) or interest on any Note and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Issuer or Parent upon receipt of a written request signed by a
member of the Board of Directors or the Management Board and delivered to the
Trustee, or (if then held by the Issuer or Parent) shall be discharged from such
trust; and the Holder of such Note shall thereafter, as a secured creditor, look
only to the Issuer and Guarantors for payment thereof, unless applicable
abandoned property law designates another Person and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Issuer or Guarantors 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 Issuer cause to be published once,
in London's Financial Times and, for so long as the Notes remain listed on the
62
Luxembourg Stock Exchange, the Luxemburger Wort, 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 Issuer.
Section 9.4 Corporate Existence
Subject to Article 7, Parent will 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 Parent and each Restricted
Subsidiary; provided, however, that Parent shall not be required to preserve any
such right or franchise if the Management Board shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
Parent and its Subsidiaries as a whole and that the loss thereof is not
disadvantageous in any material respect to Parent and its Subsidiaries,
considered as a whole.
Section 9.5 Payment of Taxes and Other Claims
The Parent will 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 Parent or any Subsidiary or upon the
income, profits or property of Parent 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 Parent or any Subsidiary; provided, however, that
Parent 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 9.6 Maintenance of Properties
The Parent will cause all properties owned by it 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 will cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of Parent 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 9.6 shall prevent Parent
from discontinuing the maintenance of any of such properties if such
discontinuance is, in the judgment of Parent, desirable in the conduct of its
business or the business of any Restricted Subsidiary and not disadvantageous in
any material respect to the Holders.
Section 9.7 Insurance
The Parent will at all times keep all of its and its Restricted
Subsidiaries' properties which are of an insurable nature insured with insurers,
believed by Parent 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 9.8 Statement by Officers as to Default
(a) The Parent shall deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate from the chairman, the
president, chief financial officer or the treasurer as to his or her knowledge
of Parent's compliance with all conditions and covenants under this Indenture.
For purposes of this Section 9.8(a), such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
63
(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 Parent or any Subsidiary (including any creditor with respect to
a Derivative Transaction) 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 (euro)10.0 million (or, to the extent not
denominated in Euros, the Euros Equivalent thereof)), Parent shall deliver to
the Trustee by registered or certified mail or by telegram, telex or facsimile
transmission an Officer's Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
Section 9.9 Limitation on Indebtedness
(a) The Parent shall not, and shall not permit any of its Restricted
Subsidiaries to create, issue, assume, guarantee or in any manner become
directly or indirectly liable for the payment of, or otherwise incur
(collectively, "INCUR"), any Indebtedness (including any Acquired Indebtedness)
other than Permitted Indebtedness, except that any of Parent or the Subsidiary
Guarantors may incur Indebtedness (except, with respect to the Subsidiary
Guarantors, Public Debt) and Parent and the Restricted Subsidiaries may incur
Acquired Indebtedness if, at the time of such incurrence the Consolidated
Indebtedness to Annualized Consolidated Operating Cash Flow Ratio of Parent
would have been greater than 0 and less than or equal to 4.5 to 1.0.
In making the foregoing calculation, pro forma effect shall be given
to: (i) the incurrence of such Indebtedness and (if applicable) the application
of the net proceeds therefrom, including to refinance other Indebtedness, as if
such Indebtedness was incurred, and the application of such proceeds occurred,
on the first day of the latest fiscal quarter for which consolidated financial
statements of Parent are available immediately preceding the date of the
incurrence of such Indebtedness; (ii) the incurrence, repayment or retirement of
any other Indebtedness by Parent and its Restricted Subsidiaries since the first
day of such fiscal quarter as if such Indebtedness were incurred, repaid or
retired on the first day of such fiscal quarter (except that, in making such
calculation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such fiscal quarter); and (iii) the acquisition (whether by purchase,
merger or otherwise) or disposition (whether by sale, merger or otherwise) of
any company, entity or business acquired or disposed of by Parent or its
Restricted Subsidiaries, as the case may be, since the first day of such fiscal
quarter, as if such acquisition or disposition occurred on the first day of such
fiscal quarter.
This Section 9.9 will not prohibit the incurrence of the accrual of
interest, the accretion or amortization of original issue discount, the payment
of interest on any Indebtedness in the form of additional Indebtedness with the
same terms, or the payment of dividends on Redeemable Capital Stock in the form
of additional shares of the same class of Redeemable Capital Stock, each of
which will not be deemed to be an Incurrence of Indebtedness or an issuance of
Redeemable Capital Stock for purposes of this Section 9.9; provided, in each
such case, that the amount thereof is included in Consolidated Interest Expense
of Parent as accrued, accreted or paid, as applicable.
For purposes of determining compliance with this Section 9.9 in the
event that an item of proposed Indebtedness meets the criteria of more than one
of the categories of Permitted Indebtedness described in clauses (a) through (o)
of the definition of such term, or is entitled to be incurred pursuant to the
first paragraph of this Section 9.9, the Parent will be permitted to classify
64
such item of Indebtedness on the date of its incurrence, or later reclassify all
or a portion of such item of Indebtedness in any manner that complies with this
Section 9.9.
Section 9.10 Limitation on Restricted Payments
(a) The Parent shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(i) declare or pay any dividend on, or make any distribution
to holders of, any shares of the Capital Stock of Parent or any
Restricted Subsidiary (other than dividends or distributions payable
solely in shares of its Qualified Capital Stock or in options,
warrants or other rights to acquire such shares of Qualified Capital
Stock and other than dividends or distribution payable to Parent or a
Restricted Subsidiary (and, if such Restricted Subsidiary is not a
Wholly-Owned Subsidiary, to its other Holders of Capital Stock on a
pro rata basis);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of Capital Stock of Parent
or any Capital Stock of any Affiliate of Parent (other than Capital
Stock of any Wholly Owned Restricted Subsidiary) or any options,
warrants or other rights to acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any
scheduled principal payment, sinking fund payment or maturity, any
Subordinated Indebtedness (other than Subordinated Indebtedness
payable to a Restricted Subsidiary); or
(iv) make any Investment (other than any Permitted
Investment and subject to the provisions of Section 9.18);
(such payments or other actions described in (but not excluded from)
clauses (i) through (iv) are collectively referred to as "RESTRICTED Payments"),
unless at the time of, and immediately after giving effect to, the proposed
Restricted Payment (the amount of any such Restricted Payment, if other than
cash, as determined by the Management Board, whose determination shall be
conclusive and evidenced by a Board Resolution), (1) no Default or Event of
Default shall have occurred and be continuing, (2) Parent could incur at least
(euro)1.00 of additional Indebtedness (other than Permitted Indebtedness)
pursuant to Section 9.9 and (3) the aggregate amount of all Restricted Payments
declared or made after the date of this Indenture shall not exceed the sum of:
(A) the remainder of (x) the cumulative Consolidated
Operating Cash Flow of Parent during the period (taken as a
single accounting period) beginning on the first day of the
fiscal quarter of Parent beginning after the date of this
Indenture and ending on the last day to the last full fiscal
quarter immediately preceding the date of such Restricted
Payment for which quarterly or annual consolidated financial
statements of Parent are available minus (y) the product of
1.5 times cumulative Consolidated Interest Expense of Parent
during such period; plus
(B) the aggregate Net Cash Proceeds received by Parent after
the date of this Indenture as capital contributions or from
the issuance or sale (other than to any of its Subsidiaries)
of shares of Qualified Capital Stock of Parent (including
upon the exercise of options, warrants or rights) or
warrants, options or rights to purchase shares of Qualified
Capital Stock of Parent; plus
65
(C) the aggregate Net Cash Proceeds received after the date
of this Indenture by Parent from the issuance or sale (other
than to any of its Subsidiaries) of debt securities or
Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock of Parent, to the
extent such securities were originally sold for cash,
together with the aggregate net cash proceeds received by
Parent at the time of such conversion or exchange; plus
(D) to the extent not otherwise included in the Consolidated
Operating Cash Flow of Parent, an amount equal to the sum of
(i) the net reduction in Investments in any Person (other
than Permitted Investments) resulting from the payment in
cash of dividends, repayments of loans or advances or other
transfers of assets, in each case to Parent or any
Restricted Subsidiary after the date of this Indenture from
such Person and (ii) the portion (proportionate to Parent's
equity interest in such Subsidiary) of the fair market value
of the net assets of any Unrestricted Subsidiary at the time
such Unrestricted Subsidiary is designated a Restricted
Subsidiary; provided, however, that in the case of (i) or
(ii) above the foregoing sum shall not exceed the amount of
Investments previously made (and treated as a Restricted
Payment) by Parent or any Restricted Subsidiary in such
Person or Unrestricted Subsidiary; plus
(E) (euro)3.0 million (or, to the extent not denominated in
Euros, the Euro Equivalent thereof).
(b) Notwithstanding paragraph (a) above, Parent and any Restricted
Subsidiary, as applicable, may take the following actions so long as (with
respect to clauses (ii), (iii), (iv), (v), (vi), (vii) and (viii) below) no
Default or Event of Default shall have occurred and be continuing:
(i) the payment of any dividend within 60 days after the
date of declaration thereof, if at such date of declaration such
dividend would have complied with the provisions of paragraph (a)
above and such payment will be deemed to have been paid on such date
of declaration for purposes of the calculation required by paragraph
(a) above;
(ii) the purchase, redemption or other acquisition or
retirement for value of any shares of Capital Stock of Parent, in
exchange for, or out of the Net Cash Proceeds of a substantially
concurrent issuance and sale (other than to a Subsidiary) of, shares
of Qualified Capital Stock of Parent;
(iii) the purchase, redemption, defeasance or other
acquisition or retirement for value of any Subordinated Indebtedness
in exchange for, or out of the Net Cash Proceeds of, a substantially
concurrent issuance and sale (other than to a Subsidiary) of shares of
Qualified Capital Stock of Parent;
(iv) the purchase of any Subordinated Indebtedness at a
purchase price not greater than 101% of the principal amount
(including accreted value, if applicable) thereof in the event of a
Change of Control Triggering Event in accordance with provisions
similar to Section 9.15; provided that prior to such purchase Parent
has caused the Issuer to make the Change of Control Offer as provided
in Section 9.15 with respect to the Notes and has caused the Issuer to
purchase all Notes validly tendered for payment in connection with
such Change of Control Offer;
66
(v) the purchase, redemption, defeasance or other
acquisition or retirement for value by Parent or any Restricted
Subsidiary of Subordinated Indebtedness in exchange for, or out of the
net cash proceeds of a substantially concurrent incurrence (other than
to a Subsidiary) of, new Subordinated Indebtedness of the Parent so
long as (A) the principal amount (including accreted value, if
applicable) of such new Subordinated Indebtedness does not exceed the
principal amount (or, if such Subordinated Indebtedness being
refinanced provides for an amount less than the principal amount
thereof to be due and payable upon a declaration of acceleration
thereof, such lesser amount as of the date of determination) of the
Subordinated Indebtedness being so purchased, redeemed, defeased,
acquired or retired, plus the amount of any premium required to be
paid in connection with such refinancing pursuant to the terms of such
Subordinated Indebtedness being refinanced or the amount of any
premium reasonably determined by Parent as necessary to accomplish
such refinancing, plus, in either case, the amount of expenses of
Parent incurred in connection with such refinancing, (B) such new
Subordinated Indebtedness is subordinated to the Guarantee to at least
the same extent as such Subordinated Indebtedness so purchased,
redeemed, defeased, acquired or retired and (C) such new Subordinated
Indebtedness has an Average Life longer than the Average Life of the
Notes and a Stated Maturity of principal later than the Stated
Maturity of principal of the Notes and;
(vi) the purchase, redemption or other acquisition or
retirement for value of shares of Capital Stock of any non-Wholly
Owned Restricted Subsidiary if, as a result of such purchase,
redemption, other acquisition or retirement, Parent increases its
percentage ownership, directly or indirectly through its Restricted
Subsidiaries, of such non-Wholly Owned Restricted Subsidiary;
(vii) the payment of any dividend by a Restricted Subsidiary
to the holders of its common equity on a pro rata basis; and
(viii) the purchase of Capital Stock of Parent by a
Restricted Subsidiary for a price equal to the par value thereof in an
aggregate amount not to exceed (euro)5 million (or, to the extent not
denominated in Euros, the Euro Equivalent thereof) solely for use in
stock option or purchase plans for the benefit of employees of Parent
or any Subsidiaries.
The actions described in clauses (i), (ii), (iii), (iv), and (viii)
of this paragraph (b) shall be Restricted Payments that shall be permitted to be
taken in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under clause (3) of
paragraph (a) and the actions described in clauses (v), (vi), and (vii) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
in accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under clause (3) of the second
paragraph of Section 9.10(a).
Section 9.11 Limitation on Issuances and Sales of Capital Stock of
Restricted Subsidiaries
The Parent shall not, and shall not permit any Restricted Subsidiary
to, issue or sell any Capital Stock of any Restricted Subsidiary (other than to
Parent or a Restricted Subsidiary); provided, however, that this Section 9.11
shall not prohibit (i) the ownership by directors of director's qualifying
shares or the ownership by foreign nationals of Capital Stock of any Restricted
67
Subsidiary, to the extent mandated by applicable law, (ii) the issuance and sale
of all, but not less than all, of the issued and outstanding Capital Stock of
any Subsidiary owned by Parent and the Restricted Subsidiaries in compliance
with Section 9.16 and (iii) issuance's or sales of Capital Stock of any
Restricted Subsidiary, if, after giving effect to such issuance, such Restricted
Subsidiary continues to be a Restricted Subsidiary.
Section 9.12 Limitation on Transactions with Affiliates
The Parent shall not, and shall not permit any Restricted Subsidiary
to enter into, amend or suffer to exist, directly or indirectly, any transaction
or series of related transactions (including, without limitation, the sale,
purchase, exchange or lease of assets, property or services) with, or for the
benefit of, any Affiliate of Parent or any Restricted Subsidiary unless (i) such
transaction or series of related transactions are on terms that are no less
favorable to Parent, or such Restricted Subsidiary, as the case may be, than
those that could have been obtained in an arm's-length transaction with
unrelated third parties who are not Affiliates, (ii) with respect to any
transaction or series of related transactions involving aggregate consideration
equal to or greater than (euro)5.0 million (or, to the extent not denominated in
Euros, the Euro equivalent thereof), Parent shall deliver an Officer's
Certificate to the Trustee certifying that such transaction or series of related
transactions complies with clause (i) above, (iii) with respect to any
transaction or series of related transactions including aggregate consideration
in excess of (euro)10.0 million (or, to the extent not denominated in Euros, the
Euro equivalent thereof), Parent shall deliver the Officer's Certificate
described in clause (ii) above which shall also certify that such transaction or
series of related transactions has been approved by a majority of the
Disinterested Members of the Management Board or that Parent has obtained a
written opinion from a nationally recognized U.S. investment banking firm
certifying that such transaction or series of related transactions is fair to
Parent or such Restricted Subsidiary, as the case may be, from a financial point
of view; and (iv) with respect to any transaction or series of related
transactions including aggregate consideration in excess of (euro)15.0 million
(or, to the extent not denominated in Euros, the Euro equivalent thereof),
Parent shall deliver the Officer's Certificate described in clause (ii) above
which shall also certify that Parent has obtained a written opinion from a
nationally recognized U.S. investment banking firm certifying that such
transaction or series of related transactions is fair to Parent or such
Restricted Subsidiary, as the case may be, from a financial point of view
provided, however, that this provision will not restrict (1) any transaction or
series of related transactions among Parent and Restricted Subsidiaries or among
Restricted Subsidiaries, (2) Investments in Qualified Capital Stock of Parent by
any Person, including an Affiliate of Parent, (3) any other transaction pursuant
to contractual arrangements existing on the date of this Indenture (the
"Existing Affiliate Agreements"), (4) Parent from paying reasonable and
customary regular compensation and fees to directors of Parent or any Restricted
Subsidiary who are not employees of Parent or any Restricted Subsidiary, (5)
Parent or any Restricted Subsidiary from making any Restricted Payment in
compliance with Section 9.10, or (6) Parent from entering into any customary and
reasonable employment and consulting agreements which have been approved by a
majority of the Disinterested Members of the Management Board or (7)
transactions between Parent or any Restricted Subsidiary and any holder of less
than 10.0% of the outstanding Voting Stock of Parent entered into in the
ordinary course of business.
Section 9.13 Limitation on Liens
The Parent shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than Permitted Liens) on or with respect to any of its property or
assets, including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of this Indenture or thereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey any
68
right to receive income thereon unless (x) in the case of any Lien securing
Subordinated Indebtedness, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien and (y) in the case
of any other Lien, the Notes are equally and ratably secured with the obligation
or liability secured by such Lien.
Section 9.14 Issuances of Guarantees of Indebtedness by Subsidiaries
(a) Parent may permit any Restricted Subsidiary to guarantee any
Indebtedness of Parent. If, after the Issue Date, a Restricted Subsidiary issues
a Guarantee of Indebtedness of Parent, or otherwise assumes or in any manner
becomes liable with respect to the Indebtedness of Parent, Parent shall cause
such Restricted Subsidiary simultaneously to execute and deliver a supplemental
Indenture providing for the Guarantee of payment of the Notes by such Restricted
Subsidiary on a basis senior to any guarantee of Subordinated Indebtedness or at
least pari passu with any guarantee of Indebtedness that is pari passu in right
of payment with such Guarantee; provided that this paragraph (a) shall not be
applicable to any guarantee of any Restricted Subsidiary constituting Acquired
Indebtedness.
(b) Notwithstanding the foregoing, any guarantee created pursuant to
the provisions described in the foregoing paragraph (a) shall provide by its
terms that it shall be automatically and unconditionally released and discharged
upon (i) any sale, exchange or transfer to any Person who is not an Affiliate of
Parent, of all of Parent's Capital Stock in, or all or substantially all the
assets of, such Subsidiary (which sale, exchange or transfer is not prohibited
by this Indenture) or (ii) the release by the holders of the Indebtedness of
Parent described in the preceding paragraph of their guarantee by such
Subsidiary (including any deemed release upon payment in full of all obligations
under such Indebtedness, except by or as a result of payment under such
guarantee), at a time when (A) no other Indebtedness of Parent has been
guaranteed by such Subsidiary or (B) the holders of all such other Indebtedness
which is guaranteed by such Subsidiary also release their guarantee by such
Subsidiary (including any guarantee deemed released upon payment in full of all
obligations under such Indebtedness).
Section 9.15 Purchase of Notes upon a Change of Control Triggering Event
If a Change of Control Triggering Event shall occur at any time (the
date of such occurrence being the "CHANGE OF CONTROL DATE"), then each holder of
Notes will have the right to require that the Issuer purchase such holder's
Notes, in whole or in part in integral multiples of (euro)1,000 (or the
prevailing denomination from time to time following a Payment-in-Kind Election)
at a purchase price (the "CHANGE OF CONTROL PURCHASE PRICE") in cash in an
amount equal to 101% of the aggregate principal amount of the Notes plus, in
each case, accrued and unpaid interest, if any, to the date of purchase (the
"CHANGE OF CONTROL PURCHASE DATE"), pursuant to the offer described below (the
"CHANGE OF CONTROL OFFER") and the other procedures set forth in this Indenture.
Within 30 days following any Change of Control Date, the Issuer shall
notify the Trustee thereof and give written notice of such Change of Control
Triggering Event to each holder of Notes by first-class mail, postage prepaid,
at the address appearing in the Register, stating, among other things, (i) the
purchase price and the purchase date, which shall be a Business Day no earlier
than 30 days nor later than 60 days from the date such notice is mailed, or such
later date as is necessary to comply with requirements under the Exchange Act or
any applicable securities laws or regulations; (ii) that any Note not tendered
will continue to accrue interest; (iii) that, unless the Issuer defaults in the
payment of the purchase price, any Notes accepted for payment pursuant to the
Change of Control Offer shall cease to accrue interest after the Change of
69
Control Purchase Date; and (iv) certain other procedures that a holder of Notes
must follow to accept a Change of Control Offer or to withdraw such acceptance.
The Issuer and Parent will comply with the applicable tender offer
rules, including Rule 14e-1 under the Exchange Act, and any other applicable
securities laws and regulations in connection with a Change of Control Offer.
In connection with any repurchase of a Global Note pursuant to a
Change of Control Offer, the Principal Paying Agent shall endorse Schedule A to
such Global Note surrendered for repurchase to reflect the decrease in principal
amount of such Global Note resulting from such Change of Control Offer.
Section 9.16 Limitation on Sale of Assets
(a) The Parent shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, engage in any Asset Sale unless (i) the
consideration received by Parent or such Restricted Subsidiary for such Asset
Sale is not less than the fair market value of the shares or assets sold (as
determined by the Management Board whose determination shall be conclusive and
evidenced by a Board Resolution) and (ii) the consideration received by Parent
or the relevant Restricted Subsidiary in respect of such Asset Sale consists of
at least 75.0% of (a) cash or Cash Equivalents, (b) Replacement Assets or (c)
any combination of the consideration described in the foregoing clause (a) and
(b).
(b) If Parent or any Restricted Subsidiary engage in an Asset Sale,
Parent may use the Net Cash Proceeds thereof, within 15 months after such Asset
Sale, to (i) permanently repay or prepay any then outstanding (a) secured
Indebtedness of Parent secured solely by either (1) assets not pledged to secure
the Guarantee of the Notes or (2) assets pledged on a first priority basis over
the second priority pledge over the same assets securing the obligations under
the Notes and the Guarantees pursuant to Article 11 and Article 12 and the
Security Documents or (b) Indebtedness of any Restricted Subsidiary, or (ii)
invest (or enter into a legally binding agreement to invest) in properties and
assets to replace the properties and assets that were the subject of the Asset
Sale or in properties and assets that will be used in the business of Parent or
a Restricted Subsidiary, as the case may be. If any such legally binding
agreement to invest such Net Cash Proceeds pursuant to clause (ii) is
terminated, then Parent may, within 90 days of such termination or within 15
months of such Asset Sale, whichever is later, apply or invest such Net Cash
Proceeds as provided in clause (i) or (ii) (without regard to the parenthetical
contained in such clause (ii)) above. The amount of such Net Cash Proceeds not
so used as set forth above in this paragraph (b) constitutes "EXCESS Proceeds."
When the aggregate amount of Excess Proceeds exceeds (euro)10.0
million (or, to the extent not denominated in Euros, the Euro Equivalent
thereof) the Issuer shall, within 30 Business Days of an Asset Sale make an
offer to purchase (an "EXCESS PROCEEDS OFFER") from all holders of Notes and all
holders of other Indebtedness of the Issuer or any Guarantor that is pari passu
with the Notes or any Guarantee and that contains an asset sale offer
requirement that has not been satisfied, on a pro rata basis, in accordance with
the procedures set forth below, the aggregate principal amount of Notes
(expressed as a multiple of (euro)1,000) (or the prevailing denomination for
time to time following a Payment-in-Kind Election) and principal amount or
accreted value, as applicable, of such pari passu Indebtedness that may be
purchased with those Excess Proceeds. The offer price as to each Note shall be
payable in cash in an amount equal to 100% of the aggregate principal amount of
the Notes as of the date of purchase plus, in each case, accrued interest, if
any (the "OFFERED PRICE") to the date an Excess Proceeds Offer is consummated.
70
To the extent that the aggregate Offered Price of Notes tendered pursuant to an
Excess Proceeds Offer is less than the Excess Proceeds, Parent may use such
deficiency for general corporate purposes. If the aggregate Offered Price of
Notes and the aggregate principal amount or accreted value, as applicable, of
such other pari passu Indebtedness validly tendered and not withdrawn by holders
thereof exceeds the Excess Proceeds, the Notes and such other pari passu
Indebtedness to be purchased will be selected on a pro rata basis. Upon
completion of such offer to purchase, the amount of Excess Proceeds shall be
reset to zero.
In connection with any repurchase of any Global Note pursuant to an
Excess Proceeds Offer, the Principal Paying Agent shall endorse Schedule A to
such Global Note surrendered for repurchase to reflect the decrease in principal
amount of such Global Note resulting from such Excess Proceeds Offer.
Section 9.17 Limitation on Dividends and Other Payment Restrictions
Affecting Restricted Subsidiaries
(a) The Parent shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction of any kind on the
ability of any Restricted Subsidiary to (a) pay dividends, in cash or otherwise,
or make any other distributions on or in respect of its Capital Stock, (b) pay
any Indebtedness owed to Parent or any other Restricted Subsidiary, (c) make
Investments in Parent or any other Restricted Subsidiary, or (d) transfer any of
its properties or assets to Parent or any other Restricted Subsidiary except for
such encumbrances or restrictions existing under or by reason of (i) any
agreement in effect on the date of this Indenture and any amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings thereof, provided that such amendments,
modifications, restatements, renewals, increases, supplements, refundings,
replacements or refinancings are no more restrictive, taken as a whole, with
respect to such dividend and other payment restrictions than those contained in
such agreements, as in effect on the date of this Indenture, (ii) applicable
law, (iii) customary non-assignment provisions of any lease governing a
leasehold interest of Parent or any Restricted Subsidiary, (iv) any agreement or
other instrument of a Person acquired by Parent or any Restricted Subsidiary in
existence at the time of such acquisition (but not created in contemplation
thereof), which encumbrance or restriction is not applicable to any Person, or
the properties or assets of any Person, other than the Person, or the property
or assets of the Person, so acquired, (v) any such customary encumbrance or
restriction contained in a security document creating a Lien permitted under
this Indenture to the extent relating to the property or asset subject to such
Lien, (vi) purchase money obligations for property acquired in the ordinary
course of business that impose restrictions on the property so acquired of the
nature described in clause (d) of this paragraph (a), (vii) any agreement for
the sale or other disposition of a Subsidiary that restricts distributions by
that Subsidiary pending its sale or other disposition, (viii) provisions with
respect to the disposition of assets or property in joint venture agreements,
asset sale agreements, stock sale agreements and other similar agreements
entered into in the ordinary course of business, (ix) any Senior Credit Facility
entered into pursuant to clause (k) of the definition of Permitted Indebtedness
and (x) any encumbrance or restriction contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued if
(A) either (i) the encumbrance or restriction applies only in the event of and
during the continuance of a payment default or a default with respect to a
financial covenant contained in such Indebtedness or agreement, or (ii) Parent
determines at the time any such Indebtedness is incurred (and at the time of any
modification of the terms of any such encumbrance or restriction) that any such
71
encumbrance or restriction will not materially affect Parent's ability to make
principal or interest payments on the Notes and (B) the encumbrance or
restriction is not materially more disadvantageous to the Holders of the Notes
than is customary in comparable financings or agreements (as determined by
Parent in good faith).
Section 9.18 Limitation on Investments in Unrestricted Subsidiaries
The Parent shall not make, and shall not permit any of its Restricted
Subsidiaries to make, any Investment in Unrestricted Subsidiaries if, at the
time thereof, the amount of such Investment would exceed the amount of
Restricted Payments then permitted to be made pursuant to Section 9.10
(including, without limitation, as a Permitted Investment).
Any Investments in Unrestricted Subsidiaries permitted to be made
pursuant to this Section 9.18 (i) will be treated as the making of a Restricted
Payment in calculating the amount of Restricted Payments made by Parent or a
Restricted Subsidiary (without duplication under the provisions of Section
9.10(a)(iv)) and (ii) may be made in cash or property (if made in property, the
fair market value thereof as determined by the Management Board (whose
determination shall be conclusive and evidenced by a Board Resolution) shall be
deemed to be the amount of such Investment for the purpose of clause (i) of this
paragraph).
Section 9.19 Permitted Business
The Parent shall not, and shall not permit any of its Restricted
Subsidiaries to, engage in any business activity other than (i) the delivery of
telephony, cable television or other telecommunications or data transmission
services in the Republic of Poland or any country bordering the Republic of
Poland and (ii) any business or activity reasonably related thereto, including,
without limitation, any Internet service provider, e-commerce services, ▇▇▇▇
payment and collection over the Internet or by other telecommunications or data
transmission means and support services related thereto such as indemnity and
collection, and any business conducted by any Restricted Subsidiary on the date
of this Indenture and the acquisition, holding or exploitation of any
telecommunication license related to the delivery of the services described in
clause (i) above.
Section 9.20 The Issuer
(a) The Parent shall ensure that the Issuer remains a Wholly Owned
Subsidiary and shall not permit the Issuer to consolidate with or merge with or
into any other Person; provided that nothing in this Indenture shall limit a
voluntary dissolution of the Issuer or merger of the Issuer into Parent solely
for the purposes of permitting Parent to assume all of the Issuer's obligations
as if it were the direct obligor with respect thereto and in which all assets of
the Issuer are transferred to Parent and no material payment or distribution is
made to creditors.
(b) Notwithstanding anything contained in this Indenture to the
contrary, the Issuer shall not engage in any business activity or undertake any
other activity, except any activity relating to the offering, sale or issuance
of the Notes and other Indebtedness and the lending or otherwise advancing the
proceeds thereof to Parent or any of its Restricted Subsidiaries and any other
activities in connection therewith or permitted under this Indenture.
72
Section 9.21 Provision of Financial Statements and Reports
The Parent or the Issuer, as appropriate, shall file on a timely
basis with the Commission, to the extent such filings are accepted by the
Commission and whether or not Parent or the Issuer has a class of securities
registered under the Exchange Act, the annual reports, quarterly reports and
other documents that Parent or the Issuer, as appropriate, would be required to
file if it were a foreign private issuer subject to Section 13 or 15(d) of the
Exchange Act; provided however, that in addition to such requirements Parent
shall file: (i) within 60 days after the end of each of its first three fiscal
quarters, quarterly financial reports on Form 6-K which contain the information
specified on Form 10-Q, including a "Management's Discussion and Analysis of
Financial Condition and Results of Operation"; and (ii) within 120 days after
the end of its fiscal year, annual reports on Form 20-F; including a report on
the annual financial statements by Parent's certified independent accountants,
which quarterly and annual reports shall contain a reconciliation to GAAP. The
Parent or the Issuer will also be required (a) to file with the Trustee, and
provide to each holder of Notes, without cost to such holder, copies of such
reports and documents within 15 days after the date on which such reports and
documents are filed with the Commission or the date on which Parent or the
Issuer, as appropriate, would be required to file such reports and documents if
Parent or the Issuer were so required, and (b) if filing such reports and
documents with the Commission is not accepted by the Commission or is prohibited
under the Exchange Act, to supply at Parent's cost copies of such reports and
documents to any holder or prospective holder of Notes promptly upon written
request.
Section 9.22 Waiver of Certain Covenants
The Issuer or Parent, as the case may be, may omit in any particular
instance to comply with any term, provision or condition set forth in Section
7.1 or Sections 9.5 through 9.21, inclusive, if before or after the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Notes, by Action of such Holders, waive such compliance in such
instance with such term, provision or condition, but no such waiver shall extend
to or affect such term, provision or condition except to the extent so expressly
waived, and, until such waiver shall become effective, the obligations of the
Issuer and Parent, as the case may be, and the duties of the Trustee in respect
of any such term. provision or condition shall remain in full force and effect.
Section 9.23 Additional Amounts
All payments made by the Issuer under or with respect to any Notes or
made by any Guarantor under or with respect to its Guarantee shall 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 the Republic of Poland, or within any other
jurisdiction in which the Issuer or such Guarantor is organized or engaged in
business for tax purposes, unless the Issuer or such Guarantor, as the case may
be, is required to withhold or deduct Taxes by law or by the interpretation or
administration thereof. If the Issuer or such Guarantor, as the case may be, is
required to withhold or deduct any amount for or on account of Taxes imposed by
a Taxing Authority within the Netherlands or the Republic of Poland, or within
any other jurisdiction in which the Issuer or any Guarantor is organized or
engaged in business for tax purposes, from any payment made under or with
respect to the Notes or any Guarantee, respectively, the Issuer or the
Guarantor, as the case may be, will pay such additional amounts ("ADDITIONAL
AMOUNTS") as may be necessary so that the net amount received by each Holder of
Notes (including Additional Amounts) after such withholding or deduction will
not be less than the amount the Holder and beneficial owner would have received
if such Taxes had not been withheld or deducted; provided that no Additional
Amounts shall be payable with respect to a payment made to a Holder of Notes or
to a third party on behalf of a Holder of Notes with respect to (a) any Tax
which would not have been imposed, payable or due but for the existence of any
present or former connection between the Holder (or the beneficial owner of, or
73
person ultimately entitled to obtain an interest in, such Notes) and the
Netherlands, the Republic of Poland or any other jurisdiction in which the
Issuer or the applicable Guarantor is organized or engaged in business for tax
purposes other than the holding of the Notes; (ii) but for the failure to comply
upon written notice by the Issuer delivered 60 days prior to any payment date
with a request by the Issuer to satisfy any certification, identification or any
other reporting requirements, whether imposed by statute, treaty, regulation or
administrative practice concerning nationality, residence or connection with the
Netherlands, the Republic of Poland or any other jurisdiction in which the
Issuer or the applicable Guarantor is organized or engaged in business for tax
purposes; (iii) if the presentation of Definitive Notes for payment had occurred
within 30 days after the date such payment was due and payable or was provided
for, whichever is later; (iv) if the beneficial owner of, or person ultimately
entitled to obtain an interest in, such Notes had been the Holder of the Notes
and would not be entitled to the payment of Additional Amounts; or (b) any
estate, inheritance, gift, sales or excise tax. The Issuer or the applicable
Guarantor, as the case may be, shall also (i) make such withholding or deduction
and (ii) remit the full amount deducted or withheld to the relevant authority in
accordance with applicable law. The Issuer or the applicable Guarantor, as the
case may be, shall 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 Issuer or the applicable Guarantor, as
the case may be, shall furnish to the Holders of the Notes, within 60 days after
the date the payment of any Taxes so deducted or withheld is due pursuant to
applicable law, either certified copies of tax receipts evidencing such payment
by the Issuer or such Guarantor, as the case may be, or, if such receipts are
not obtainable, other evidence of such payments by the Issuer or such Guarantor,
as the case may be.
At least 30 days prior to each date on which any payment under or
with respect to the Notes is due and payable, if the Issuer or any Guarantor (if
such Guarantor intends to make such payments under its Guarantee), as the case
may be, shall be obligated to pay Additional Amounts with respect to such
payment, the Issuer or such Guarantor, as the case may be, will deliver to the
Trustee an Officer's Certificate stating the fact that such Additional Amounts
will be payable and the amounts so payable and will set forth such other
information necessary to enable such Trustee to pay such Additional Amounts to
the Holders of Notes on the payment date. The Issuer shall indemnify the Trustee
for, and hold them harmless against, any Liability incurred arising out of or in
connection with actions taken or omitted by it in reliance on any Officer's
Certificate furnished pursuant to this Section.
The Issuer will not take any voluntary action that results in its
obligation to pay Additional Amounts.
Whenever in this Indenture there is mentioned, in any context, the
payment of principal, premium, if any, interest or of any other amount payable
under or with respect to any of the Notes, 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 9.24 Suspension of Certain Covenants During Achievement of
Investment Grade Status
If during any period the Notes have achieved and continue to maintain
Investment Grade Status and no Event of Default shall have occurred and be
continuing (such period collectively referred to herein as an "INVESTMENT GRADE
STATUS PERIOD"), then upon the request of the Issuer or Parent made to the
Trustee, the covenants set forth in Sections 9.10, 9.16 and 9.17 and in clauses
(A) and (B) of Section 7.1 (iii) hereof shall be suspended and shall not during
such period be applicable to the Issuer or the Parent or its Subsidiaries. No
74
action taken during an Investment Grade Status Period or prior to an Investment
Grade Status Period in compliance with the covenants then applicable shall
constitute a default under the Notes in the event that suspended covenants are
subsequently reinstated or suspended, as the case may be. For the avoidance of
doubt, an Investment Grade Status Period will not commence until the Issuer or
Parent has made the request referred to above.
ARTICLE 10
REDEMPTION OF NOTES
Section 10.1 Right of Redemption
The Issuer may at its option, at any time and from time to time on
giving notice of redemption in the manner set forth in Section 10.5, redeem all
or some of the Notes in (i) an aggregate principal amount of the Minimum
Redemption Amount or an integral multiple thereof, or (ii) if at such time less
than the Minimum Redemption Amount in aggregate principal amount of Notes is
Outstanding, such lesser amount. The procedure for identifying specific Holders
of Notes from whom Notes will be redeemed pursuant to this Article 10 is set
forth in Section 10.4. Any redemption of Notes pursuant to this Indenture,
including this Section, shall be made pursuant to the provisions of Section 10.2
through 10.7.
Section 10.2 Election to Redeem: Notice to Trustee
In case of any redemption at the election of the Issuer, the Issuer
shall, on not less than 30 nor more than 60 days' prior to the Redemption Date
fixed by the Issuer, notify the Trustee, the Principal Paying Agent of such
Redemption Date and of the principal amount of Notes to be redeemed and shall
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Notes to be redeemed pursuant to Section 10.4.
Section 10.3 Selection by Trustee of Notes to Be Redeemed
If less than all the Notes are to be redeemed, the particular Notes
to be redeemed shall be selected not more than 60 days prior to the Redemption
Date by the Trustee, from the Outstanding Notes not previously called for
redemption, 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
of Notes; provided, however, that no such partial redemption shall reduce the
portion of the principal of a Note not redeemed to less than (euro)1,000 (or the
prevailing denomination from time to time following a Payment-in-Kind Election).
The Trustee shall promptly notify the Issuer in writing of the Notes
selected for redemption and, in the case of any Notes 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 Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
Section 10.4 Notice of Redemption to Holders of Notes
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 Notes to be redeemed.
75
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price and the amount of accrued interest and
Additional Amounts, if any, to the Redemption Date payable
as provided in Section 10.7, if any;
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption,
the principal amounts) of the particular Notes to be
redeemed;
(4) in case any Note is to be redeemed in part only, the notice
which relates to such Note shall state that on and after the
Redemption Date, upon surrender of such Note, the Holder
will receive, without charge, a new Note or Notes of
authorized denominations for the principal amount thereof
remaining unredeemed;
(5) that on the Redemption Date the Redemption Price (and
accrued interest and Additional Amounts, if any, to the
Redemption Date payable as provided in Section 10.7) will
become due and payable upon each such Note, 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 Notes are to be surrendered
for payment of the Redemption Price and accrued interest and
Additional Amounts, if any.
Notice of redemption of Notes to be redeemed at the election of the
Issuer shall be given by the Issuer or, at the Issuer's request, by the Trustee
in the name and at the expense of the Issuer.
Additionally, so long as the Notes may be listed on the Luxembourg
Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the
Issuer shall, once in each year in which there has been a partial redemption of
any of the Notes, cause to be published in a leading daily newspaper of general
circulation in Luxembourg (which is expected to be the Luxemburger Wort) a
notice specifying the aggregate principal amount of Notes outstanding and a list
of the Notes selected for redemption but not surrendered.
In connection with any redemption of a Global Note, the Principal
Paying Agent shall endorse Schedule A to such Global Note surrendered for
redemption to reflect the decrease in principal amount thereof resulting from
such redemption and the Registrar shall amend the Register to reflect such
redemption.
Section 10.5 Deposit of Redemption Price
With respect to a redemption of Notes, , the Issuer shall deposit
with the Principal Paying Agent and, if applicable, the US Paying Agent,
sufficient money to pay the Redemption Price of, and accrued interest and
Additional Amounts, if any, on all Notes or portions thereof to be redeemed in
accordance with Section 2.15.
If any Note surrendered for redemption in the manner provided in the
Notes shall not be so paid on the Redemption Date due to the failure of the
Issuer to deposit sufficient funds with the Principal Paying Agent and, if
applicable, the US Paying Agent, the principal amount at maturity thereof,
76
premium, if any, accrued interest and Additional Amounts, if any, thereon shall,
until paid, bear interest, as provided in Section 4.2 with respect to any
payment default.
Section 10.6 Notes Payable on Redemption Date
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest and
Additional Amounts, if any, to the Redemption Date), and from and after such
date (unless the Issuer shall default in the payment of the Redemption Price and
accrued interest and Additional Amounts, if any) such Notes shall cease to bear
interest. Upon surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Issuer at the Redemption Price, together
with accrued interest and Additional Amounts, if any, to the Redemption Date;
provided, however, that instalments of interest whose Stated Maturity is on or
prior to the Redemption Date shall be payable to the Holders of such Notes, or
one or more predecessor Notes, registered as such at the close of business on
the Regular Record Dates according to the terms of such Notes.
If any Note 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 rate borne by the Notes.
Section 10.7 Notes Redeemed in Part
Any Note which is to be redeemed only in part shall be surrendered at
the office or agency of the Issuer maintained for such purpose pursuant to
Section 2.3 (with, if the Issuer or the Trustee so requires, due endorsement by,
or a written instrument of transfer in form satisfactory to the Issuer and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing), and the Issuer shall execute, and the Trustee shall
authenticate and deliver to the Holder of such Note without service charge, a
new Note or Notes, 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 of the Note so surrendered and the Registrar shall
amend the Register to reflect such partial redemption.
ARTICLE 11
COLLATERAL
Section 11.1 COLLATERAL
In order to secure the due and punctual payment of the Guarantees,
Parent shall (A) on or before the date of this Indenture, deposit with the
Security Depositary in favour of the Trustee, in an account specified in the
Deposit Agreement (the "DEPOSIT ACCOUNT"), an amount of Euro 16,000,000 in cash
as initial security deposit in respect of the New Notes; and (B) (unless any of
the events set forth in (x) or (y) or (z) of the next paragraph to this Section
11.1 have occurred, in which case there will be no obligation by Parent to
effect the Deposit Completion by the Deposit Completion Date (each as defined
below)), on or before 24 February 2003 (the "DEPOSIT COMPLETION DATE"), either
(at its option) (a) deposit with the Security Depositary in favour of the
Trustee, in the Deposit Account, a further amount of no less than Euro
34,000,000 (whether as the result of the maturity of short term investments of
Parent that have been assigned to the Trustee or otherwise) as a further
security deposit in respect of the New Notes (the "DEPOSIT COMPLETION"); or (b)
procure that the Execution of the Collateral is completed.
77
In the event of the Trustee receiving any of the following, whether
before or after the Deposit Completion Date: (x) an Officer's Certificate from
Parent confirming the redemption of all the outstanding Notes, (y) an Officer's
Certificate from Parent and a legal opinion from a Polish law firm reasonably
satisfactory to the Trustee and in a form reasonably satisfactory to the
Trustee, each confirming that the Execution of the Collateral for the benefit of
the Trustee and that the Execution Collateral constitutes valid, binding and
enforceable obligations of Parent and the Subsidiaries, or (z) a notice of
redemption of all, but not some, of the outstanding Notes in accordance with
Section 10.2 which directs the Trustee to apply the Deposited Amount with
respect to such a redemption, then, in respect of (x) and (y) of this sentence,
the Trustee will instruct the Security Depositary to release the Deposited
Amount to Parent or, in respect of (z) of this sentence, the Trustee will
instruct the Security Depositary to release the Deposited Amount to the
Principal Paying Agent to be held pending the redemption of the Notes in
accordance with Section 10.
Subject to the rights of the Trustee and the Security Agent pursuant
to this Indenture and the Agency Agreement, with regard to execution of any of
the Security Documents for the purposes of achieving the Execution of the
Collateral, Parent will ensure that (i) the Trustee and the Security Agent (and
any legal counsel appointed by them in such respect) have received for review
final copies of the proposed Security Documents for such Execution of the
Collateral within a reasonable time period to undertake such a review and (ii)
such proposed Security Documents are in or substantially in the forms
anticipated by the terms of this Indenture. Following receipt of any such
Security Documentation in accordance with this paragraph the Trustee and the
Security Agent will sign such Security Documents as soon as is practicable
following receipt and review.
The claims of the Trustee against the Collateral will be subject to
the terms and provisions of the Security Documents. The Trustee and the Security
Agent shall not be liable for the validity, value, sufficiency or enforceability
(which the Trustee and the Security Agent have not investigated) of the
Collateral. In addition, each of the Trustee and the Security Agent has no duty
to monitor the performance by any party to the Security Documents of their
obligations under the Security Documents (other than to itself).
Parent shall, and shall procure that all or any of the Pledge
Subsidiaries shall, take such action as the Trustee or the Security Agent
appointed by it for the purpose may reasonably require pursuant to the Security
Documents (1) to perfect or protect the Collateral and (2) from time to time and
at any time after the Collateral constituted by or pursuant to the Security
Documents shall have become enforceable to facilitate the realisation of such
Collateral and the exercise of the functions of the Trustee and the Security
Agent. A certificate from the Trustee to the effect that a particular action is
reasonably required by it shall be conclusive evidence of that fact. Without
prejudice generally to the foregoing, Parent shall submit, and shall procure
Telekom and South to submit, to voluntary execution pursuant to Article 777 ss.
1 Section 5 of the Polish Civil Procedure Code in order that the Guarantees may
be enforced by the Trustee or the Security Agent appointed by it for such
purpose, for the benefit of all Holders of the Notes ("SUBMISSION TO VOLUNTARY
EXECUTION").
Neither the Trustee, the Security Agent nor any other agent of the
Trustee shall be liable to account for anything except actual receipts or be
liable for any loss or damage arising from the enforcement of the Collateral or
from any act or omission in relation to such enforcement or otherwise unless
such loss or damage shall be caused by its own fraud.
No one dealing with the Trustee or the Security Agent need enquire
whether any of the powers, authorities and discretions conferred by or pursuant
78
to this Indenture in relation to the Collateral are or may be exercisable by the
Trustee or the Security Agent or as to the propriety or regularity of acts
purposing or intended to be in exercise of any such powers.
The Security Agent is a party to this Indenture for the purposes of
being granted the benefit of certain rights and covenants and has no obligations
hereunder (save in respect of entering into further Security Documents or any
Intercreditor Deed (if applicable)) and shall have no liability to the Holders
by virtue of being a party hereto. Its appointment by the Trustee and the scope
of its duties owed to the Trustee are as set out in the Agency Agreement and, to
the extent relevant, any Security Documents.
The Trustee and the Security Agent shall have no liability for any
insufficiency in monies paid to it pursuant to the Security Documents and held
by it on the terms of this Indenture if such insufficiency results from any
liability of the Trustee or the Security Agent to tax in respect of the same.
Section 11.2 RECORDING AND OPINIONS
The Parent shall cause, at its own expense, the Security Documents
and all amendments or supplements thereto to be registered, recorded and filed
or re-recorded, re-filed and renewed in such manner and in such places, if any,
as may be required by law in order fully to preserve and protect the Liens
created by the Security Documents on all parts of the Collateral.
The Parent shall furnish to the Trustee and the Security Agent
promptly after the execution and delivery of the Security Documents (at any time
after the initial issuance of the Notes), an Opinion of Counsel addressed to
both the Trustee and the Security Agent either (i) stating that, in the opinion
of such counsel with such qualifications as such counsel shall deem appropriate,
the creation of Liens on the Collateral intended to be made by the Security
Documents and all other instruments of further assurance or amendment have been
or are in the process of being properly recorded, registered and filed to the
extent necessary to make effective the Liens intended to be created by the
Security Documents, and reciting the details of such action or referring to
prior opinions of Counsel in which such details are given, or (ii) stating that,
in the Opinion of such Counsel, no such action is necessary to make such Liens
effective.
If, under the terms of any of the Security Documents, the Trustee,
the Security Agent and the Parent and or any Pledge Subsidiary are required to
enter into further pledges in favour of the Trustee on behalf of the Holders in
respect of new Collateral, such further pledges shall be in or substantially in
the respective forms set forth in Exhibits D to V and in such circumstances the
Trustee shall not require the consent of the Holders to enter such pledge nor
incur any liability in such respect.
Parent shall furnish to the Trustee in electronic form an Officer's
Certificate: (i) once monthly, providing the names of the banks or deposit
taking institutions in which new bank or deposit taking accounts have been
opened by Parent and/or any of its Subsidiaries; (ii) once each quarter,
providing details as to any new receivables obtained during the previous quarter
that are scheduled to become due within 360 days of the date of the Officer's
Certificate of Parent and/or any of its Subsidiaries over PLN 100,000. The
Trustee will then pass each Officer's Certificate in electronic form to each of
Euroclear, Clearstream, Luxembourg and DTC respectively for those parties to
forward to their direct account customers in accordance with their applicable
procedures.
79
Section 11.3 POSSESSION AND USE OF COLLATERAL
So long as no Event of Default has occurred and is continuing, Parent
and its Subsidiaries will have the right to remain in possession and maintain
its use of control of the Collateral, to freely operate the Collateral and to
collect, invest and dispose of the income therefrom.
Parent and/or its Subsidiaries shall be entitled, subject to the
other provisions of this Indenture but without the consent of the Trustee, the
Security Agent or the Holders of the Notes; to transfer and/or dispose of assets
that form part of the Collateral, provided, that (i) the consideration received
by Parent and/or its Subsidiaries via such transfer and/or disposition, whether
by sale or otherwise, is, in the written opinion of the London office of a "big
four" accounting firm or an internationally recognised investment banking firm,
equal to or greater than the value of the assets transferred and/or disposed of
and Parent and/or any of its Subsidiaries effects valid security (including any
applicable Conditionally Assigned Accounts and Receivables) over the
consideration in favour of the Trustee and the Security Agent for the benefit of
the holders of the Notes, and (ii) Parent and/or its Subsidiaries comply with
Section 9.16 and so long as it shall be a condition of any transfer and/or
disposal that any consideration received by Parent and/or its Subsidiaries in
connection with such transfer and/or disposal shall be subject to the Collateral
(including any Conditionally Assigned Accounts and Receivables) or bound by the
terms of the Intercreditor Deed.
Section 11.4 RELEASE AND DISPOSITION OF COLLATERAL
Should any assets which form part of the Collateral be transferred or
disposed of in accordance with this Indenture (including, without limitation,
any transaction permitted by Section 9.16 and Section 11.3 of this Indenture),
such assets will automatically be released from the Lien of the Security
Documents.
Section 11.5 DISPOSITION OF COLLATERAL WITHOUT RELEASE
(a) In addition to and without limiting the provisions of Section
11.4 and subject to Section 9.16, at any time and from time to time, provided
that no Event of Default has occurred and is continuing, Parent or any of its
Subsidiaries may without any release or consent of the Trustee:
(i) sell, dispose of or otherwise transfer inventory in the
ordinary course of business;
(ii) collect, liquidate or otherwise dispose of
Conditionally Assigned Accounts and Receivables in the ordinary course
of business;
(iii) renegotiate or terminate leasehold interests forming
part of the Collateral in the ordinary course of business;
(iv) sell or dispose of obsolete or worn out fixtures and
equipment that form part of the Collateral in the ordinary course of
business; and
(v) grant easements and rights of way on Mortgaged Property
in the ordinary course of business that do not secure any monetary
obligations and do not materially detract from the value of the
affected property or interfere with the ordinary conduct of any of its
business; and
80
(vi) sell, transfer or convey the capital stock of a
Subsidiary to another Subsidiary or to Parent and/or to cancel any
capital stock of a Subsidiary for the sole purpose of effecting the
internal rationalisation and/or corporate reorganisation of its
subsidiaries with the consent of the Supervisory Board; provided,
however, that within 90 days after the completion of any such
transaction in connection with the internal rationalisation and/or
corporate reorganisation of its subsidiaries, Parent shall procure
that the shares of any company that is created, if any, or any
additional shares resulting therefrom, shall be perfected as Pledged
Shares.
(b) The rights of Parent and any of its Subsidiaries to rely upon
sub-section (a) of this Section 11.5 for each six month period beginning on 23
December and 23 June (a "SIX MONTH PERIOD") which shall be conditioned upon
Parent delivering to the Trustee, within 30 days following the end of the
previous Six Month Period an Officer's Certificate to the effect that all sales
of inventory, or collections and other dispositions of Conditionally Assigned
Accounts and Receivables and any other disposition contemplated by Section
11.5(a) by Parent or any of its Subsidiaries during such Six Month Period
occurred in the ordinary course business and that all proceeds therefrom were
used in the ordinary course of business or to make other cash payments permitted
by this Indenture.
Section 11.6 PRIORITY OF LIENS
The Lien on Collateral will be treated by Parent as a first priority
secured lien upon all of the assets and undertakings specified herein until such
time as the Senior Credit Facility is entered into. Save as otherwise provided
in this Indenture, the priorities referred to in the above paragraph will not be
affected by any reduction or increase in the principal amount secured by the
Senior Security so long as the principal amount of the Senior Credit Facility
shall at all times be no more than Euro 50 million in principal amount.
At the same time as a Senior Credit Facility is being entered into by
Parent the Trustee shall, without requiring the consent of the Holders of the
Notes and without liability is such respect, enter into an intercreditor deed
with, inter alia, the Senior Creditors, Parent and Subsidiaries which may
contain the provisions set forth in Schedule 2 hereto and which contains no
other provisions which are, in the opinion of the Trustee, materially
prejudicial to the interests of the Noteholders (the "INTERCREDITOR
DEED"),whereby for so long as any indebtedness remains outstanding under the
Senior Credit Facility then (i) all present and future sums, liabilities and
obligations whatsoever (actual or contingent) payable, owing, due or incurred by
Parent under the Senior Credit Facility, including principal, accrued interest
and any and all costs, fees and charges (the "SENIOR LIABILITIES"), whether
secured (the "SENIOR SECURITY") or unsecured, shall rank in priority and be
senior to any obligations owed by Parent, Telekom and South to the Trustee under
the Guarantee (the "JUNIOR LIABILITIES"), and (ii) the Liens on Collateral
granted in favour of the Trustee, shall have the status of second priority
secured Lien only (the "JUNIOR SECURITY") and, in order to effect the
circumstances contemplated in (i) and (ii) of this Section, the Trustee and the
Security Agent will enter into Change of Priority Agreements in respect of such
Collateral.
81
ARTICLE 12
GUARANTEE
Section 12.1 Guarantee
Each Guarantor hereby absolutely, unconditionally, jointly and
severally and irrevocably guarantees the Notes and obligations of the Issuer
hereunder and thereunder for the benefit of the Trustee on a secured (on a
senior basis until and, if the Senior Credit Facility is entered into, in
respect of which the Notes and Guarantees shall be secured by the Collateral on
a second priority basis) and unsubordinated basis (except in respect of the
Senior Credit Facility, which shall enjoy priority of payments over the Notes
and Guarantees)as if the Guarantor instead of the Issuer were the primary
obligor under the Indenture and the Notes, and guarantees to the Trustee, and to
the Trustee on behalf of such Holder, that: (a) the principal of (and premium
and Additional Amounts, if any) and interest on the Notes will be paid in full
when due, whether at Stated Maturity, by acceleration or otherwise, together
with interest on the overdue principal, if any, and interest on any overdue
interest, to the extent lawful, and all other obligations of the Issuer to the
Holders or the Trustee hereunder or thereunder will be paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or of any such other
obligations, the same will be paid in full when due or performed in accordance
with the terms of the extension or renewal, whether at Stated Maturity, by
acceleration or otherwise.
The Guarantors hereby agree that their obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability of the
Notes or this Indenture, the absence of any action to enforce the same, any
waiver or consent by any Holder of the Notes with respect to any provisions
hereof or thereof, the recovery of any judgment against the Issuer, any action
to enforce the same or any other circumstance that might otherwise constitute a
legal or equitable discharge or defence of a guarantor.
The Guarantors hereby waive (to the extent permitted by law) the
benefits of diligence, presentment, demand for payment, filing of claims with a
court in the event of insolvency or bankruptcy of the Issuer, any right to
require a proceeding first against the Issuer or any other Person, protest,
notice and all demands whatsoever and covenants that its Guarantee will not be
discharged as to any Note except by complete performance of the obligations
contained in such Note and such Guarantee. The Guarantors hereby agree that, in
the event of a default in payment of principal (or premium, if any) or interest
or Additional Amounts, if any, on such Note, whether at its Stated Maturity, by
acceleration, purchase or otherwise, legal proceedings may be instituted by the
Trustee on behalf of, or by, the Holder of such Note, subject to the terms and
conditions set forth in this Indenture, directly against the Guarantors to
enforce their obligations under the Guarantee without first proceeding against
the Issuer. The Guarantors agree that if, after the occurrence and during the
continuance of an Event of Default, the Trustee or any of the Holders are
prevented by applicable law from exercising their respective rights to
accelerate the maturity of the Notes, to collect interest on the Notes, or to
enforce or exercise any other right or remedy with respect to the Notes, the
Guarantors will pay to the Trustee for the account of the Holders, upon demand
therefor, the amount that would otherwise have been due and payable had such
rights and remedies been permitted to be exercised by the Trustee or any of the
Holders.
If any Holder or the Trustee is required by any court or otherwise to
return to the Issuer or the Guarantors, or any custodian, trustee, liquidator or
other similar official acting in relation to either the Issuer or the
Guarantors, any amount paid by any of them to the Trustee or such Holder, the
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. The Guarantors further agree that, as between them, on the one
hand, and the Holders and the Trustee, on the other hand, (x) the maturity of
the obligations guaranteed hereby may be accelerated as provided in Article 4
hereof for the purposes of the Guarantee, notwithstanding any stay, injunction
or other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any acceleration of such obligations
as provided in Article 4 hereof, such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantors for the
purpose of the Guarantee.
82
Section 12.2 Severability
In case any provision of this Guarantee 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 12.3 Subrogation
The Guarantors shall be subrogated to all rights of Holders against
the Issuer in respect of any amounts paid by the Guarantors pursuant to the
provisions of Section 12.1; provided, however, that, if an Event of Default has
occurred and is continuing, the Guarantors shall not be entitled to enforce or
receive any payments arising out of, or based upon, such right of subrogation
until all amounts then due and payable by the Issuer under this Indenture or the
Notes shall have been paid in full.
Section 12.4 Reinstatement
The Guarantors hereby agree that the Guarantee provided for in
Section 12.1 shall continue to be effective or be reinstated, as the case may
be, if at any time, payment, or any part thereof, of any obligations or interest
thereon is rescinded or must otherwise be restored by a Holder to the Issuer or
the Guarantors upon the bankruptcy or insolvency of the Issuer or any of the
Guarantors.
Section 12.5 Subsidiary Guarantors May Consolidate, etc. on Certain Terms
The Subsidiary Guarantors shall not in a single transaction or a
series of related transactions consolidate with or merge with or into or sell,
combine, convey, transfer, lease or otherwise dispose of, whether directly or
indirectly through de-merger or otherwise, all or substantially all of their
respective properties and assets substantially as an entirety of such Subsidiary
Guarantor unless at the time and immediately after giving effect thereto either:
(a) such Subsidiary Guarantor will be the continuing corporation; or
(b) the Person (if other than a Subsidiary Guarantor) formed by such
consolidation or into which such Subsidiary Guarantor is merged or the Person
that acquires by sale, conveyance, transfer, lease or other disposition, all or
substantially all of the properties and assets of such Subsidiary Guarantor
expressly assumes by a supplemental indenture to this Indenture in form
satisfactory to the Trustee, such Subsidiary Guarantor's obligations pursuant to
the Guarantee for the due and punctual payment of the principal of, premium, if
any, on and interest, and Additional Amounts, if any, on all the Notes and the
performance and observance of every covenant of this Indenture on the part of
Parent to be performed or observed, and such Person shall succeed to and be
substituted for the Subsidiary Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor corporation thereupon may cause to
be signed any or all of the Guarantees to be endorsed upon all of the Notes
issuable hereunder that theretofore shall not have been signed by the [Parent
and delivered to the Registrar. All the Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Guarantees had been issued at the date of the
execution hereof,
and, in each case under (a) and (b) above, immediately before and
after giving effect to such transaction or series of transactions on a pro forma
basis (and treating any obligation of such Subsidiary Guarantor incurred in
connection with or as a result of such transaction or series of transactions as
83
having been incurred at the time of such transaction), no Default or Event of
Default shall have occurred and be continuing.
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, the Subsidiary Guarantor or
the successor corporation, as the case may be, shall deliver to the Trustee, in
form and substance reasonably satisfactory to the Trustee, an Officer's
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, sale, assignment, conveyance, transfer, lease or other disposition, and
if a supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with the requirements of this Indenture and
that all conditions precedent herein provided for relating to such transaction
have been complied with. Notwithstanding the foregoing, the provisions of this
paragraph will not apply to any transaction for the sole purpose of changing a
Subsidiary's corporate organization from a Polish limited liability company to a
Polish joint stock company or from a Polish joint stock company to a Polish
limited liability company.
Section 12.6 Release of the Guarantors
Concurrently with the discharge of the Notes under Section 3.1, the
defeasance of the Notes under Section 13.2 hereof, or the covenant defeasance of
the Notes under Section 13.3 hereof, the Guarantors shall be released from all
of their obligations under the Guarantee under this Article 12.
Section 12.7 Execution and Delivery of Guarantee
To evidence the Guarantee set forth in Section 12.1, the Guarantors
hereby agree that this Indenture shall be executed on behalf of the Guarantors
by the President or one of its Vice Presidents of the Management Board of each
of the Guarantors.
If a member of the Board of Directors or a member of the Management
Board of a Guarantor, respectively, whose signature is placed on this Indenture
no longer holds that office at the time the Trustee authenticates the Note, the
Guarantee shall be valid nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Guarantee set forth in
this Indenture on behalf of the Guarantors.
Section 12.8 Benefits Acknowledged
The Guarantors acknowledge that they will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and that
their guarantee and waivers pursuant to the Guarantee are knowingly made in
contemplation of such benefits.
ARTICLE 13
DEFEASANCE AND COVENANT DEFEASANCE
Section 13.1 Issuer's Option to Effect Defeasance or Covenant Defeasance
The Issuer may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 13.2 or Section 13.3 be
applied to all Outstanding Notes upon compliance with the conditions set forth
below in this Article 13.
84
Section 13.2 Defeasance and Discharge
Upon the Issuer's exercise under Section 13.1 of the option
applicable to this Section 13.2, the Issuer shall be deemed to have been
discharged from its obligations with respect to all Outstanding Notes on the
date the conditions set forth in Section 13.4 are satisfied (hereinafter,
"DEFEASANCE"). For this purpose, such defeasance means that the Issuer shall be
deemed to have paid and discharged the entire indebtedness represented by the
Outstanding Notes, which shall thereafter be deemed to be "Outstanding" only for
the purposes of Section 13.5 and the other Sections of this Indenture referred
to in (A) and (B) below, and to have satisfied all its other obligations under
such Notes and this Indenture insofar as such Notes are concerned (and the
Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Outstanding Notes to receive, solely from the trust fund described in Section
13.4 and as more fully set forth in such Section, payments in respect of the
principal of (and premium, if any, on) and interest and Additional Amounts, if
any, on such Notes when such payments are due, (B) the Issuer's obligations with
respect to such Notes under Sections 2.7, 2.8, 9.2 and 9.3, (C) the rights,
powers, trusts, duties and indemnities of the Trustee hereunder and (D) this
Article 13. Subject to compliance with this Article 13, the Issuer may exercise
its option under this Section 13.2 notwithstanding the prior exercise of its
option under Section 13.3 with respect to the Notes.
Section 13.3 Covenant Defeasance
Upon the Issuer's exercise under Section 13.1 of the option
applicable to this Section 13.3, the Issuer and Parent shall be released from
their respective obligations under any covenant contained in Section 7.1 and in
Sections 9.6, 9.7 and 9.9 through 9.21 with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"COVENANT DEFEASANCE"), and the Notes shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Action 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, such covenant defeasance means that, with
respect to the Outstanding Notes, the Issuer and Parent 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 4.1(iv), but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby.
Section 13.4 Conditions to Defeasance or Covenant Defeasance
The following shall be the conditions to application of either
Section 13.2 or Section 13.3 to the Outstanding Notes:
(1) the Issuer shall irrevocably deposit or cause to be deposited
with the Trustee (or another trustee appointed pursuant to this Indenture who
shall agree to comply with the provisions of this Article 13 applicable to it),
as trust funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the holders of the Notes, cash in Euros, Government
Securities, or a combination thereof, in such amounts as shall be sufficient, in
the opinion of an internationally recognized firm of independent public
accountants or an internationally recognized investment banking firm, in either
case, 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, premium, if any, and
interest on the Outstanding Notes on the Stated Maturity (or upon redemption, if
applicable) of such principal, premium, if any, or installment of interest;
85
provided that the Trustee shall have been irrevocably instructed to apply such
money or the proceeds of such Government Securities to said payments with
respect to the Notes. Before such a deposit, the Issuer may give to the Trustee,
in accordance herewith, a notice of its election to redeem all of the
Outstanding Notes at a future date in accordance with Article 10 hereof, which
notice shall be irrevocable. Such irrevocable redemption notice, if given, shall
be given in applying the foregoing.
(2) no Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (vi) and (vii) of Section 4.1 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, any material agreement or
instrument (other than this Indenture) to which the Issuer or Parent are a party
or by which either is bound;
(4) in the case of an election under Section 13.2, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States stating
that the Issuer or Parent have received from, or there has been published by,
the Internal Revenue Service a ruling, or since 23 December 2002, there has been
a change in 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 Notes 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 13.3, the Issuer shall
have delivered to the Trustee an Opinion of Counsel in the United States, the
Netherlands and Poland to the effect that the Holders of the Outstanding Notes
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such covenant defeasance and will be subject to U.S. federal, Dutch
or Polish income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred;
and
(6) the Issuer shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel in the United Kingdom, each stating that
all conditions precedent provided for relating to either the defeasance under
Section 13.3 or the covenant defeasance under Section 13.3, as the case may be,
have been complied with.
Section 13.5 Deposited Money and Government Securities to Be Held in
Trust; Other Miscellaneous Provisions
Subject to the provisions of the last paragraph of Section 9.3, all
money and Government Securities (including the proceeds thereof) deposited with
the Trustee (or other qualifying trustee, collectively for purposes of this
Section 13.5, the "TRUSTEE") pursuant to Section 13.4 in respect of the
Outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Issuer acting as its
own Paying Agent) as the Trustee may determine, to the Holders of such Notes of
all sums due and to become due thereon in respect of principal (and premium, if
any) and interest, but such money need not be segregated from other funds except
to the extent required by law.
86
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Securities
deposited pursuant to Section 13.4 or the principal and interest received in
respect thereof.
Anything in this Article 13 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Issuer from time to time upon an Officer's
Certificate any money or Government Securities held by it as provided in Section
13.4 which, in the opinion of a nationally recognized firm of independent public
accountants or an internationally recognized investment banking firm, in either
case, 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 13.
Section 13.6 Reinstatement
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 13.5 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Issuer's and Parent's obligations under this Indenture and
the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 13.2 or 13.3, 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 13.5; provided, however, that if the Issuer makes any payment of
principal of (or premium, if any) or interest on any Note following the
reinstatement of its obligations, the Issuer shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
[Signature page(s) follows]
87
THIS PAGE IS INTENTIONALLY LEFT BLANK
88
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NETIA HOLDINGS B.V.
By: /S/ EWA DON-▇▇▇▇▇▇▇
---------------------------------
Name: Ewa Don-▇▇▇▇▇▇▇
Title: Vice President, Legal
NETIA HOLDINGS S.A.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI
------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ Madalski
Title: Chief Financial Officer Title: Chief Executive Officer
NETIA TELEKOM S.A.
By: /S/ AVRAHAM_HOCHMAN By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI
------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ Madalski
Title: Chief Financial Officer Title: Chief Executive Officer
NETIA SOUTH Sp. z o.o.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇▇▇▇▇ MADALSKI
------------------------------ --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ Madalski
Title: Chief Financial Officer Title: Chief Executive Officer
THE BANK OF NEW YORK
By: /S/ ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Vice President
ING BANK ▇▇▇▇▇▇ ▇.▇.
By: /S/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /S/ PRZEMYSLAW CISZECKI
------------------------------- --------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: Przemyslaw Ciszecki
Title: Commercial Proxy Title: Commercial Proxy
89
