CONFORMED COPY
Exhibit C.
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INDENTURE
relating to
12.0% CONVERTIBLE NOTES DUE 2012
among
JAZZTEL PLC
as issuer
and
THE BANK OF NEW YORK
as trustee
Dated as of November 18, 2002
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Cross-Reference Sheet Pursuant to the Trust Indenture Act of 1939 1
TIA Section Indenture Section
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310 (a) (1), (a) (2)......................................................8.10
(a) (3), (a) (4)......................................................N.A.
(a) (5)...............................................................8.10
(b)................................................8.03, 8.08, 8.10, 14.02
(c)...................................................................N.A.
311 (a), (b)..............................................................8.03
(c)...................................................................N.A.
312 (a)...................................................................2.06
(b), (c).............................................................14.03
313 (a)...................................................................8.06
(b) (1)...............................................................N.A.
(b) (2)...............................................................8.06
(c)............................................................8.06, 14.02
(d)...................................................................8.06
314 (a)......................................................4.06, 4.07, 14.02
(b)...................................................................N.A.
(c) (1)..................................................2.02, 8.02, 14.04
(c) (2)........................................................8.02, 14.04
(c) (3), (d)..........................................................N.A.
(e)..................................................................14.05
(f)...................................................................N.A.
315 (a)..........................................................8.02, 8.01(b)
(b)......................................................8.02, 8.05, 14.02
(c)..........................................................8.02, 8.01(a)
(d)..............................................8.02, 2.09, 7.05, 8.05(c)
(e)...................................................................7.11
316 (a) (last sentence)...................................................2.10
(a) (1) (A)...........................................................7.05
(a) (1) (B)...........................................................7.04
(a) (2)...............................................................N.A.
(b)................................................7.06, 7.04, 7.07, 10.04
(c)...................................................................1.01
317 (a) (1)...............................................................7.08
(a) (2)...............................................................7.09
(b)...................................................................2.04
318 (a)..................................................................14.01
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1 This Indenture and the Notes are not subject to the TIA and this
cross-reference sheet shall only apply to the extent a TIA exemption is not
maintained.
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions................................................1
Section 1.02 Incorporation by Reference of Trust Indenture Act.........22
Section 1.03 Rules of Construction.....................................22
ARTICLE II
THE NOTES
Section 2.01 Form and Dating...........................................23
Section 2.02 Execution and Authentication..............................24
Section 2.03 Registrar and Paying and Conversion Agent.................25
Section 2.04 Holders to Be Treated as Owners; Payments of Interest.....26
Section 2.05 Paying and Conversion Agent to Hold Money in Trust........27
Section 2.06 Noteholder Lists..........................................27
Section 2.07 Transfer and Exchange.....................................27
Section 2.08 Replacement Notes.........................................33
Section 2.09 Outstanding Notes.........................................33
Section 2.10 Treasury Notes............................................34
Section 2.11 Temporary Notes...........................................34
Section 2.12 Cancellation..............................................34
Section 2.13 Defaulted Interest........................................34
Section 2.14 CUSIP Number and ISIN Number..............................35
Section 2.15 Deposit of Moneys.........................................35
ARTICLE III
REDEMPTION
Section 3.01 Election to Redeem; Notices to Trustee....................35
Section 3.02 Holder Election as to Form of Redemption Payment..........35
Section 3.03 Notice of Redemption......................................36
Section 3.04 Effect of Notice of Redemption............................37
Section 3.05 Deposit of Redemption Price...............................37
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ARTICLE IV
COVENANTS
Section 4.01 Payment of Notes..........................................37
Section 4.02 Maintenance of Office or Agency...........................39
Section 4.03 Corporate Existence.......................................39
Section 4.04 Payment of Taxes and Other Claims.........................39
Section 4.05 Maintenance of Properties; Insurance; Books and Records;
Compliance with Law.....................................39
Section 4.06 Compliance Certificates...................................40
Section 4.07 Reports...................................................40
Section 4.08 Business Combinations.....................................41
Section 4.09 Limitation on Indebtedness................................44
Section 4.10 Limitation on Restricted Payments.........................44
Section 4.11 Limitation on Liens.......................................47
Section 4.12 [Intentionally Omitted]...................................47
Section 4.13 Additional Amounts........................................47
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01 Limitation on Merger, Sale or Consolidation...............49
Section 5.02 Successor Corporation Substituted.........................49
ARTICLE VI
CONVERSION OF NOTES
Section 6.01 Conversion Right..........................................50
Section 6.02 Conversion Procedures.....................................51
Section 6.03 No Fractional Interests...................................53
Section 6.04 Conversion Price..........................................53
Section 6.05 Adjustment of Conversion Price............................53
Section 6.06 No Continuation of Conversion Right Following Business
Combinations............................................60
Section 6.07 Notice of Certain Events..................................60
Section 6.08 Taxes on Conversion.......................................61
Section 6.09 Issuer to Provide Stock...................................61
Section 6.10 Disclaimer of Responsibility for Certain Matters. ........61
Section 6.11 Return of Funds Deposited for Repurchase of Converted
Notes...................................................62
Section 6.12 Mandatory Conversion......................................62
Section 6.13 Interest on Conversion....................................62
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ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01 Events of Default.........................................62
Section 7.02 Acceleration..............................................64
Section 7.03 Other Remedies............................................65
Section 7.04 Waiver of Past Default....................................65
Section 7.05 Control by Majority.......................................66
Section 7.06 Limitation on Suits.......................................66
Section 7.07 Rights of Holders to Receive Payment......................66
Section 7.08 Collection Suit by Trustee................................66
Section 7.09 Trustee May File Proofs of Claim..........................67
Section 7.10 Priorities................................................67
Section 7.11 Undertaking for Costs.....................................67
Section 7.12 Restoration of Rights and Remedies........................68
Section 7.13 Rights and Remedies Cumulative............................68
Section 7.14 Delay or Omission Not Waiver..............................68
ARTICLE VIII
TRUSTEE
Section 8.01 Duties of Trustee.........................................68
Section 8.02 Rights of Trustee.........................................69
Section 8.03 Individual Rights of Trustee..............................70
Section 8.04 Trustee's Disclaimer......................................70
Section 8.05 Notice of Defaults........................................70
Section 8.06 Reports by Trustee to Holders.............................71
Section 8.07 Compensation and Indemnity................................71
Section 8.08 Replacement of Trustee....................................72
Section 8.09 Successor Trustee by Merger, Etc..........................73
Section 8.10 Eligibility; Disqualification.............................73
Section 8.11 Money Held in Trust.......................................73
Section 8.12 Withholding Taxes.........................................73
Section 8.13 Co-Trustees...............................................74
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Termination of Obligations................................75
Section 9.02 Legal Defeasance and Covenant Defeasance..................76
Section 9.03 Application of Trust Money................................79
Section 9.04 Repayment to the Issuer...................................79
Section 9.05 Reinstatement.............................................80
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ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders................................80
Section 10.02 With Consent of Holders...................................81
Section 10.03 [Intentionally Omitted]...................................81
Section 10.04 Revocation and Effect of Amendments and Consents..........81
Section 10.05 Notation on or Exchange of Notes..........................82
Section 10.06 Trustee to Sign and Notify Noteholders of Amendments, Etc.82
ARTICLE XI
[INTENTIONALLY OMITTED]
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
MEETINGS OF HOLDERS; VOTES
Section 13.01 Purposes for Which Meetings May Be Called.................83
Section 13.02 Manner of Calling Meetings................................83
Section 13.03 Calling of Meetings by the Issuer or Holders..............84
Section 13.04 Who May Attend and Vote at Meetings.......................84
Section 13.05 Quorum; Action............................................84
Section 13.06 Limits on Voting..........................................84
Section 13.07 Regulations May Be Made by Issuer; Conduct of the Meeting;
Voting Rights; Adjournment..............................84
Section 13.08 Voting at the Meeting and Record to Be Kept...............85
Section 13.09 Exercise of Rights of Trustee or Holders May Not Be
Hindered or Delayed by Call of Meeting..................85
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Application of Trust Indenture Act........................86
Section 14.02 Notices...................................................86
Section 14.03 Communications by Holders with Other Holders..............87
Section 14.04 Certificate and Opinion of Counsel as to Conditions
Precedent...............................................87
Section 14.05 Statements Required in Certificate and Opinion of Counsel.87
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Section 14.06 Rules by Trustee, Paying and Conversion Agent, Registrar..87
Section 14.07 Agent for Service; Submission to Jurisdiction; Waiver of
Immunities..............................................88
Section 14.08 Legal Holidays............................................88
Section 14.09 Governing Law.............................................88
Section 14.10 No Recourse Against Others................................89
Section 14.11 Successors................................................89
Section 14.12 Duplicate Originals.......................................89
Section 14.13 Separability..............................................89
Section 14.14 Table of Contents, Headings, Etc..........................89
Section 14.15 No Adverse Interpretation of Other Agreements.............89
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EXHIBIT A - Form of Global Note....................................A-1
EXHIBIT B - Form of Definitive Registered Note.....................B-1
EXHIBIT C - Form of Certificate of Transfer and Exchange...........C-1
EXHIBIT D - Form of Conversion and Exchange Notice.................D-1
Schedule A - Schedule of Existing Indebtedness
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INDENTURE dated as of November 18, 2002 (the "Indenture")
among Jazztel plc, a public limited company incorporated under the laws of
England and Wales, as issuer (the "Issuer" or the "Company") and The Bank of New
York, a New York banking corporation, as trustee (the "Trustee").
The Issuer has duly authorized the execution and delivery of
this Indenture to provide for the issuance of the 12.0% Convertible Notes due
2012 of the Issuer (the "Initial Notes" and, together with any and all
Additional Notes issued in compliance with Section 4.01, the "Notes") to be
issued as provided for in this Indenture. The Notes may consist of Global Notes
(as defined herein) and Definitive Registered Notes (as defined herein), or any
combination thereof, outstanding from time to time.
In addition, the Issuer has duly authorized the issuance of
its Ordinary Shares (as defined herein) upon conversion of the Notes.
All things necessary to make each of this Indenture and the
Notes a valid agreement of the Issuer, enforceable against the Issuer in
accordance with its terms, have been done, and the Issuer has done all things
necessary to make the Notes, when executed by the Issuer and authenticated and
delivered by the Trustee hereunder and duly issued by the Issuer, the valid
obligations of the Issuer as hereinafter provided.
The parties hereto agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders (as defined below) of
the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01 Definitions.
"144A Legend" means the legend in the form set forth in
Section 2.07.
"2002 Share Options" means the options to purchase 2,540,058
Ordinary Shares granted by the Issuer under the share option plan adopted by the
Issuer in June 2002.
"Acceleration Notice" has the meaning set forth in Section
7.02.
"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 Person becoming a Subsidiary or such acquisition; provided that, for
purposes of Section 4.09, 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.
"Additional Amounts" has the meaning set forth in Section
4.13.
"Additional Notes" has the meaning set forth in Section
2.01(f).
"Additional Shares" means the Ordinary Shares to be issued in
accordance with Clause 3.10 of the Scheme if any 2002 Share Options are not
repriced or cancelled before the Additional New Shares Release Date under the
terms of the Management Incentive Plan.
"Additional New Shares Release Date" means the date that is
120 calendar days after the Effective Date of the Scheme.
"Affiliate" means, as applied to any Person, any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, means the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Affiliate Definitive Registered Note" means a Definitive
Registered Note held by an Affiliate of the Issuer or by a Person that at any
time during the prior three months was an Affiliate of the Issuer.
"Affiliate Global Note" means a Global Note in bearer form in
which a beneficial interest is held by an Affiliate of the Issuer or by a Person
that at any time during the prior three months was an Affiliate of the Issuer.
"Agent" means any Registrar or the Paying and Conversion
Agent.
"Annualized Consolidated Operating Cash Flow" means
Consolidated Operating Cash Flow for the latest fiscal quarter for which
consolidated financial statements of the Issuer 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 or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depository that apply to such transfer or exchange.
"April Euro Notes" means the Euro 110 million principal amount
of 14.0% Senior Notes due in April 2009.
"April Notes" means the April Euro Notes and the U.S. Dollar
Notes.
"April Warrants" means the warrants issued in connection with
the April Notes.
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"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 assets of
the Issuer or its Subsidiaries; or (iii) any other properties or assets of the
Issuer or any Subsidiary, other than in the ordinary course of business.
"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 Issuer's incremental borrowing
rate) 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.
"Average Life" means, as of the date of determination with
respect to any Indebtedness, 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 Law" means: (i) Title 11 of the U.S. Code; (ii)
the UK Insolvency ▇▇▇ ▇▇▇▇; (iii) any similar Spanish law including the Spanish
Corporate Act (Ley de Sociedades Anonimas), Spanish Commercial Code (Codigo de
Comercio), Spanish Civil Code (Codigo Civil), Moratorium Law (Ley de Suspenson
de Pagos) and the Civil Procedure Law (Ley de Enjuiciamiento Civil); or (iv) any
other law of the United States, the United Kingdom, the Kingdom of Spain, any
political subdivision thereof or any other jurisdiction relating to bankruptcy,
insolvency, winding up, liquidation, reorganization or relief of debtors or any
amendment to, succession to or change in any such law.
"Bankruptcy Order" has the meaning set forth in Section
7.01(b).
"Board" means, with respect to any Person, the Board of
Directors of such Person or any committee of such Board authorized to act
for it.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by a Director or the Secretary or an Assistant
Secretary of such Person as having been duly adopted by the Board of such Person
and as being in full force and effect on the date of such certification, and
delivered to the Trustee.
"Book-Entry Depositary" means the book-entry depositary
designated by the Issuer in the Deposit Agreement until a successor depositary
shall have become such pursuant to
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the applicable provisions of the Deposit Agreement, and thereafter "Book-Entry
Depositary" shall mean such successor book-entry depositary.
"Book-Entry Interest" means an indirect beneficial interest in
a Global Note represented by an interest in the corresponding Certificated
Depositary Interest and shown on, and transferred only through, records
maintained in book-entry form by the Depositary.
"Business Combination" means any merger, consolidation, sale
of assets by the Issuer or any Subsidiary, any acquisition by the Issuer or any
Subsidiary of any other Person or business or part thereof, or any acquisition
by any Person of 50% or more of the Ordinary Shares, provided that any such
merger, consolidation, sale of assets or acquisition by the Issuer or a
Subsidiary shall not be deemed a "Business Combination" if such transaction (a)
occurs solely among the Issuer and one or more of its Wholly-Owned Restricted
Subsidiaries or among Wholly-Owned Restricted Subsidiaries or (b) does not
involve the issue of Ordinary Shares and/or the payment of cash or other
consideration with an aggregate value greater than 15% of the Issuer's market
capitalization (defined as the average Closing Price of the Ordinary Shares
during the 15 Trading Days immediately prior to the first public announcement by
the Company of such transaction times the number of Ordinary Shares then
outstanding).
"Business Day" means any day (other than a Saturday or Sunday)
on which Euroclear/Clearstream and the Spanish Clearing and Settlement Service
(the Servicio de Compensacion y Liquidacion de Valores or "SCLV") and banks in
New York, London and Madrid are open for business and, on any day on which a
payment in Euro is to be made, a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer System is operating.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations, rights or other equivalents (however
designated, whether voting or non-voting) in the equity of such Person, whether
outstanding at the Issue Date or issued after the Issue Date, including, without
limitation any and all rights, warrants or options exchangeable for or
convertible into any thereof.
"Capitalized Lease" means, as applied to any Person, any lease
or license of, or other agreement conveying the right to use, any property
(whether real, personal or mixed, movable or immovable) of which the present
value of the obligations of such Person to pay rent or other amounts is
required, in conformity with GAAP, to be classified and accounted for as a
finance lease obligation.
"Capitalized Lease Obligation" means the capitalized present
value of the obligations to pay rent or other amounts under a Capitalized Lease,
determined in accordance with 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 Kingdom, the United States of America, the Federal
Republic of Germany or the Kingdom of Spain or any agency or instrumentality
thereof (provided that the full faith and credit of the United Kingdom, the
United States of America, the Federal Republic of Germany or the Kingdom of
Spain, as the
-4-
case may be, is pledged in support thereof or such Indebtedness constitutes a
general obligation of such country or such Indebtedness is issued or fully
guaranteed or insured by the Lords Commissioners of Her Majesty's Treasury of
the United Kingdom or the United States Government or government of the Federal
Republic of Germany or the Government of the Kingdom of Spain); (ii) deposits,
certificates of deposit or acceptances with a maturity of 180 days or less of
any institution which is authorized under the Banking Act (United Kingdom) or is
a financial institution that is a member of the U.S. Federal Reserve System or
is similarly authorized in the Federal Republic of Germany or the Kingdom of
Spain, in each case having combined capital and surplus and undivided profits
(or any similar capital concept) of not less than Euro 500 million (or, if
non-Euro denominated, the Euro Equivalent thereof); (iii) commercial paper with
a maturity of 180 days or less issued by a corporation (other than an Affiliate
of the Issuer or any of its Subsidiaries) organized under the laws of the United
Kingdom or any part thereof or the United States or any state thereof or the
District of Columbia or the Federal Republic of Germany or any part thereof or
the Kingdom of Spain or any part thereof, and rated at least "A-1" by Standard &
Poor's Corporation or "P-1" by ▇▇▇▇▇'▇ Investors Service; and (iv) repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the government or the Lords
Commissioners of Her Majesty's Treasury of the United Kingdom or the United
States Government or the government of the Federal Republic of Germany or the
government of the Kingdom of Spain, in each case maturing within one year from
the date of acquisition.
"Certificated Depositary Interests" means with respect to any
Global Note, certificated depositary interests representing the right to receive
100% of the principal, premium (if any), interest, and Additional Amounts (if
any) of and liquidated damages (if any) in respect of such Global Note and the
ownership of which is registered on the Book-Entry Register by the Book-Entry
Depositary in the name of the Depositary or its nominee.
"Clearstream" and "Clearstream Banking" means Clearstream
Banking, societe anonyme, Luxembourg.
"Closing Price" means the closing sale price of the Ordinary
Shares as reported on the Nuevo ▇▇▇▇▇▇▇ (or if not admitted for trading thereon,
then the last sale price as reported on the principal securities exchange or on
the principal automated quotation system on which the Ordinary Shares are listed
or admitted to trading) at the close of business on the relevant date of
determination or if no such sale takes place on such day, the last sale price
for such day shall be the average of the closing bid and asked prices regular
way on the Nuevo ▇▇▇▇▇▇▇ (or if not admitted for trading thereon, on the
principal securities exchange or on the principal automated quotation system on
which the Ordinary Shares are listed or admitted to trading) for such day. If
the Ordinary Shares are not quoted by or admitted for trading on any such
organization, the "Closing Price" means the fair value of such Ordinary Shares
on such day, as reasonably determined in good faith by the Board of Directors of
the Issuer.
"CNMV" means the Spanish Comision Nacional del ▇▇▇▇▇▇▇ de
Valores.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Issuer and its Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted, to the extent
included in calculating such net income (or loss)
-5-
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 the Issuer or a
Restricted Subsidiary), including Unrestricted Subsidiaries, in which the Issuer
or any Restricted Subsidiary has an ownership interest, except to the extent of
the amount of dividends or other distributions actually paid to the Issuer or
any Restricted Subsidiary in cash dividends or distributions during such period,
(d) net income (but not loss) of any Person combined with the Issuer 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 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 Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Issuer and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization or accretion of debt discount, (ii) the net cost of Interest Rate
Agreements and Currency Agreements (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 the Issuer or a
Restricted Subsidiary and (vi) amortization of debt issuance costs, plus (b) the
interest component of Capitalized Lease Obligations of the Issuer 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 by the Issuer and any Restricted
Subsidiary (to any Person other than the Issuer 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 the Issuer, a fixed or floating rate of interest,
shall be computed by applying, at the option of the Issuer, either the fixed or
the floating rate.
"Consolidated Operating Cash Flow" means, with respect to any
period, the Consolidated Adjusted Net Income for such period (a) increased by
(to the extent deducted 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 the Issuer
and its Restricted Subsidiaries for such period, determined on a consolidated
basis in accordance with GAAP; (iv) amortization of the Issuer and its
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; and (v) any other non-cash charges (excluding any non-cash
charge which requires an accrual or reserve for cash charges for any future
period) of the Issuer and its 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.
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"Consolidated Tax Expense" means, for any period, the
provision for federal, state, provincial, local and foreign income taxes of the
Issuer and all Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consummation Date" has the meaning provided in Section 4.08.
"Conversion Date" has the meaning set forth in Section
6.02(e).
"Conversion Notice" has the meaning set forth in Section
6.02(a).
"Conversion Notice Date" has the meaning set forth in Section
6.02(e).
"Conversion Right" has the meaning set forth in Section 6.01.
"Conversion Price" shall have the meaning specified in Section
6.04.
"Conversion Shares" shall have the meaning specified in
Section 6.05(l).
"Corporate Trust Office" means the office of the Book-Entry
Depositary in London, at which its corporate trust business is principally
administered.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement designed to
protect the Issuer or any Restricted Subsidiary against fluctuations in currency
values.
"Custodian" has the meaning set forth in Section 7.01(b).
"Debt Securities" means any securities (excluding (x) notes or
other instruments evidencing commercial loans made by and (y) bills of exchange
drawn on, banks or similar financial lending institutions) issued by the Issuer
or any Restricted Subsidiary (including by means of any guarantee by the Issuer
or any Restricted Subsidiary of securities of another person), whether in a
public offering or private placement.
"December Notes" means the Euro 400 million principal amount
of 13.25% Senior Notes due in December 2009.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Amount" means 100% of the Principal Amount of the
Notes.
"Definitive Registered Note" means any Note registered in the
Register, the form of which is attached hereto.
"Deposit Agreement" means the Notes Depositary Agreement,
dated the date of this Indenture, among the Issuer and The Bank of New York, as
Book-Entry Depositary and Note Custodian, as amended from time to time in
accordance with the provisions thereof.
-7-
"Depositary" means the depositary or its nominee selected by
Euroclear and Clearstream or any successor, in whose name the Certificated
Depositary Interests are registered on the Book-Entry Register.
"Distribution Date" shall have the meaning specified in
Section 6.05(l).
"Effective Date" means the date on which the Scheme becomes
effective in accordance with Clause 1.5 of the Scheme.
"Euro" means the lawful currency of the European Monetary
Union.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the
Euroclear System (or any successor securities clearing agency).
"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 Euro obtained by converting such foreign currency involved in such
computation into Euro at the spot rate for the purchase of Euro with the
applicable foreign currency as quoted by Reuters at approximately 11:00 a.m.
(New York City time) on the date not more than two business days prior to such
determination. For purposes of determining whether any Indebtedness can be
incurred (including Permitted Indebtedness other than Indebtedness incurred
under the Senior Bank Credit Facility) and any Investment can be made (a "Tested
Transaction"), the Euro Equivalent of such Indebtedness, or Investment shall be
determined on the date incurred or made, as the case may be, and, in each case,
no subsequent change in the Euro Equivalent shall cause such Tested Transaction
or any incurrence of Indebtedness under the Senior Bank Credit Facility to have
been incurred, made or undertaken in violation of this Indenture.
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the U.S. Securities Exchange Act of 1934,
as amended.
"Excluded Holder" has the meaning specified in Section 4.13.
"Existing Options" means options granted by the Issuer prior
to the record date of the Scheme but not cancelled, terminated or exercised by
holders thereof prior to such record date.
"Existing Subsidiaries" means all of the direct and indirect
Subsidiaries of the Issuer as of the Issue Date.
"Expiration Time" shall have the meaning specified in Section
6.05(f).
"GAAP" means, at any date of determination, generally accepted
accounting principles in effect in the United States which are applicable as of
such date.
"Global Note(s)" means one or more bearer global notes,
without coupons, substantially in the form attached hereto and deposited
pursuant to the Deposit Agreement.
-8-
"Government Obligations" means direct obligations (or
certificates representing an ownership interest in such obligations) of the
United Kingdom, the United States of America, the Federal Republic of Germany or
the Kingdom of Spain (including any agency or instrumentality thereof), for the
payment of which the full faith and credit of the United Kingdom, the United
States of America, the Federal Republic of Germany or the Kingdom of Spain is
pledged and which are not callable or redeemable at the Issuer's option.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation, as the case may be, of any other Person and, without limiting the
generality of the foregoing, any obligation, direct or indirect, contingent or
otherwise, of such Person:
(a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness or other obligation of such
other Person (whether arising by virtue of partnership arrangements, or
by agreements to keep-well, to purchase assets, goods, securities or
services, to take-or-pay, or to maintain financial statement conditions
or otherwise); or
(b) entered into for purposes of assuring in any other manner
the obligee of such Indebtedness or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in
whole or in part).
The term "guarantee" shall not include endorsements for
collection or deposit in the ordinary course of business. The term "guarantee"
used as a verb has a corresponding meaning.
"Holder" means (a) in the case of any Definitive Registered
Note, the Person in whose name such Definitive Registered Note is registered in
the Register and (b) in the case of any Global Note, the bearer thereof (the
"global bearer")
"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) all obligations
of such Person under or in respect of Interest Rate Agreements or Currency
Agreements; (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 (provided that (x) a
guarantee by
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the Issuer of Indebtedness incurred by a Restricted Subsidiary and already
counted as Permitted Indebtedness hereunder, shall not be treated as
Indebtedness until such time, if ever, as such Restricted Subsidiary ceases to
be a Restricted Subsidiary and (y) the guarantee by any Restricted Subsidiary of
Indebtedness incurred by another Restricted Subsidiary or the Issuer and already
counted as Permitted Indebtedness hereunder, shall not be treated as
Indebtedness until such time if ever as such other Restricted Subsidiary ceases
to be a Restricted Subsidiary); (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; and (f) any Acquired Indebtedness. 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 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 federal, state, local or foreign 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.
"Indirect Participant" means a Person who holds a Book-Entry
Interest through a Participant.
"Initial Conversion Period" has the meaning specified in
Section 6.01(b).
"Initial Notes" has the meaning specified in the recitals to
this Indenture.
"Interest Payment Date" when used with respect to any Note,
means the Stated Maturity of an installment of interest specified in such Note.
"Interest Rate Agreements" 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 solely to protect the Issuer or any
Restricted Subsidiary against fluctuations in interest rates in respect of
Indebtedness of the Issuer or any Restricted Subsidiary.
"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,
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debentures or other securities or evidences of Indebtedness issued by, any other
Person 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 the
Issuer in such Unrestricted Subsidiary at such time. "Investments" shall exclude
extensions of trade credit on commercially reasonable terms in accordance with
normal trade practices.
"Issue Date" means the Effective Date.
"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.
"July Notes" means the Euro 225 million principal amount of
14.0% Senior Notes due 2010.
"July Warrants" means the warrants issued in connection with
the July Notes.
"Legal Holiday" means any day other than a Business Day.
"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.
"Management Incentive Plan" means the management share plan to
be adopted by the Issuer after the Effective Date of the Scheme, as described in
Section 5.3 of the explanatory statement, dated 19 September, 2002, to the
Scheme.
"Mandatory Conversion" means the mandatory conversion of the
Notes into Ordinary Shares of the Issuer (a) upon a Mandatory Conversion
Triggering Event as provided in Section 6.12, or (b) consummation of a Business
Combination as provided in Section 4.08.
"Mandatory Conversion Business Combination" means the
consummation of a Business Combination if the average Closing Price of the
Ordinary Shares for the 15 Trading Days immediately following the first public
announcement by the Issuer of the proposed Business Combination exceeds the
Conversion Price then in effect.
"Mandatory Conversion Triggering Event" means the occurrence
of any one of the following: (i) a Mandatory Conversion Business Combination (in
which case the Conversion Price shall be the Conversion Price in effect at the
time of such Mandatory Conversion Business Combination) ; (ii) the Closing Price
of the Ordinary Shares exceeds the Conversion Price on each Trading Day within
any rolling three month period following the Effective Date (in which case the
Conversion Price shall be the Conversion Price in effect at the close of
business on the
-11-
last Trading Day in such rolling three month period); or (iii) a majority of the
Notes present and duly voted at an extraordinary general meeting (other than a
meeting required by Section 4.08) called in accordance with Article XIII (such
meeting having a minimum quorum of at least two Persons specified in clause (a)
or (b) of Section 13.04, present in person or represented by proxy thereat)
elect to convert all Notes then outstanding into Ordinary Shares (in which case
the Conversion Price shall be the Conversion Price in effect at the close of
business on the date of such meeting).
"Mandatory Repurchase Offer" has the meaning provided in
Section 4.08.
"Mandatory Repurchase Payment" has the meaning provided in
Section 4.08.
"Mandatory Repurchase Triggering Event" has the meaning
provided in Section 4.08.
"Maturity Date" means October 30, 2012.
"Memorandum and Articles Of Association" means the Memorandum
and Articles of Association of the Issuer, as in effect on the Issue Date or
amended thereafter in accordance with applicable law.
"Net Cash Proceeds" means with respect to any capital
contributions, the issuance or sale of Capital Stock or options, warrants or
rights to purchase Capital Stock, the exercise of any options, warrants or
rights to purchase Qualified Capital Stock or the conversion or exchange of debt
securities or Redeemable Capital Stock that have been converted into or
exchanged for Qualified Capital Stock (including the original issuance of such
Debt Securities or Redeemable Capital Stock), as referred to under Section 4.10,
the proceeds of such capital contributions or issuance or sale (including upon
the exercise of such options, warrants or rights or conversion or exchange) 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 the Issuer or any Subsidiary),
net of attorneys' fees, accountants' fees and brokerage, investment banking,
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.
"Non Affiliate Definitive Registered Note" means a Definitive
Registered Note held by Person who is not an Affiliate of the Issuer and has not
been an Affiliate of the Issuer at any time during the past three months.
"Non Affiliate Global Note" means a Global Note in bearer form
in which no beneficial interest is held by an Affiliate of the Issuer or a
Person that any time during the past three months was an Affiliate of the
Issuer.
"Note Custodian" means the Note Custodian designated by the
Issuer in the Deposit Agreement until a successor shall have become such
pursuant to applicable provisions of the Deposit Agreement, and thereafter "Note
Custodian" shall mean such successor.
-12-
"Noteholder" means any Holder of Notes.
"Notes" has the meaning stated in the first recital of this
Indenture and more particularly means any Notes authenticated and delivered
under this Indenture, and shall include, after issuance thereof in compliance
with Section 4.01 of this Indenture, any and all Additional Notes.
"Nuevo ▇▇▇▇▇▇▇" means the trading segment of the automated
quotation system operated by the Spanish Stock Exchanges regulated by the
Ministerial Order dated December 22, 1999 and its developing secondary
legislation, through which the Ordinary Shares are quoted on the Issue Date.
"Officer" means, with respect to any Person, the Chairman of
the Board, the Deputy Chairman of the Board, the Chief Executive Officer, the
Finance Director, any Senior Vice President, the Chief Operating Officer, the
Treasurer, the General Counsel, the Secretary, the Controller or any Director of
such Person.
"Officers' Certificate" means with respect to the Issuer, a
certificate signed by any of the following: the Chairman, the President or a
Vice President, and by the Chief 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 and may include an employee of the Issuer, as
applicable, and shall, in either case, be acceptable to the Trustee.
"Ordinary Shares" means the ordinary shares, Euro 0.08 nominal
value per share, of the Issuer.
"Participant" means a Person who has an account with Euroclear
and Clearstream Banking.
"Paying and Conversion Agent" has the meaning provided in
Section 2.03.
"Permitted Indebtedness" means any of the following
Indebtedness of the Issuer and its Restricted Subsidiaries (provided that
Indebtedness incurred in reliance upon paragraphs (n) and (p) shall not in the
aggregate exceed Euro 50.0 million from time to time outstanding, and provided
further, that aggregate additional Indebtedness not to exceed Euro 5.0 million
at any one time outstanding may be incurred in reliance upon paragraph (o)):
(a) Indebtedness of the Issuer pursuant to the Notes
(including any Additional Notes issued in lieu of cash interest as
provided in this Indenture);
(b) Indebtedness of the Issuer or any Restricted Subsidiary
(A) existing on the Issue Date and set forth on Schedule A to this
Indenture, (B) outstanding under the Senior Bank Credit Facility in an
aggregate principal amount not to exceed Euro 30.0 million and (C)
Indebtedness outstanding under the agreements between Jazz Telecom S.A.
and RENFE dated September 20, 1999, as amended, and November 8, 2002.
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(c) Indebtedness of the Issuer owing to any Wholly-Owned
Restricted Subsidiary (but only so long as such Indebtedness is held by
such Wholly-Owned Restricted Subsidiary); provided that any
Indebtedness of the Issuer owing to any such Wholly-Owned 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 the
Issuer's obligations under the Notes; provided further that any
transaction pursuant to which any Wholly-Owned Restricted Subsidiary,
to which such Indebtedness is owed, ceases to be a Wholly-Owned
Restricted Subsidiary shall be deemed to be an incurrence of such
Indebtedness by the Issuer that is not permitted by this clause (c);
(d) Indebtedness of any Wholly-Owned Restricted Subsidiary
owing to the Issuer or another Wholly-Owned Restricted Subsidiary;
(e) [intentionally omitted]
(f) [intentionally omitted]
(g) [intentionally omitted]
(h) Indebtedness incurred by the Issuer and any Restricted
Subsidiary under Currency Agreements and Interest Rate Agreements;
provided that such agreements do not increase the Indebtedness of the
obligor outstanding at any time other than as a result of fluctuations
in foreign currency exchange rates or interest rates or by reason of
fees, indemnities and compensation payable thereunder; and provided
further that no such agreement shall have been entered into for
speculative purposes;
(i) Indebtedness of the Issuer and any Restricted Subsidiary
in respect of performance bonds or surety bonds incurred in the
ordinary course of business in connection with the construction and
maintenance of the telecommunications network, and operations in the
ordinary course of business, of the Issuer and its Restricted
Subsidiaries;
(j) [intentionally omitted]
(k) (A) Indebtedness of the Issuer 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 the Issuer or any Restricted Subsidiary;
(l) any renewals, extensions, substitutions, refinancings or
replacements (each, for purpose of this clause, a "refinancing") by the
Issuer or any Restricted Subsidiary to refund, refinance or replace any
Indebtedness of the Issuer or any Restricted Subsidiary listed in
clauses (a), (b) and (m), including any successive refinancings, so
long as (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
-14-
premium reasonably determined as necessary to accomplish such
refinancing and the amount of expenses of the Issuer or any Restricted
Subsidiary incurred in connection with such refinancing, (ii) in the
case of any refinancing of Subordinated Indebtedness, such new
Indebtedness is made subordinate to the Notes at least to the same
extent as the Indebtedness being refinanced, (iii) such new
Indebtedness 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 and
(iv) such Indebtedness is incurred either by the Issuer or by the
Restricted Subsidiary who is the obligor on the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded, provided
that the Issuer may incur such refinancing in connection with
Indebtedness of any Restricted Subsidiary, including any such
Indebtedness guaranteed by the Issuer;
(m) Indebtedness of the Issuer or any Restricted Subsidiary to
the extent the net proceeds thereof are used to purchase, refinance,
defease or redeem, in whole or in part, the Notes (including any
Additional Notes issued in lieu of cash interest as provided in this
Indenture);
(n) Acquired Indebtedness of the Issuer or any Restricted
Subsidiary;
(o) Indebtedness incurred to banks or other financial
institutions in respect of contracts with suppliers to the Issuer or
its Restricted Subsidiaries which are confirmed by such banks or
financial institutions in accordance with Spanish law (provided any
such Indebtedness so incurred does not exceed Euro 5.0 million from
time to time outstanding);
(p) Indebtedness of the Issuer or any Restricted Subsidiary in
addition to that described in paragraphs (a) through (o) above and (q)
below, so long as the aggregate principal amount of all such
Indebtedness incurred pursuant to this paragraph (p) shall not exceed
Euro 50.0 million outstanding at any one time, less the aggregate
amount of outstanding Indebtedness incurred in reliance upon paragraph
(n); and
(q) Indebtedness of the Issuer or any Restricted Subsidiary
equal to 100% of Total Incremental Equity.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Issuer or any Restricted Subsidiary,
including by way of any purchase of Notes;
(c) Investments by the Issuer or any Restricted Subsidiary, if
as a result of such Investment (i) a Person becomes a Restricted
Subsidiary or (ii) a Person is merged or consolidated with or into, or
transfers or conveys all or substantially all of its assets to, the
Issuer or a Restricted Subsidiary;
-15-
(d) Investments in bonds, notes, debentures or other
securities received as a result of Asset Sales; provided that the
Issuer or a Restricted Subsidiary, as the case may be, has received at
least 75% of the net proceeds thereof in cash or Cash Equivalents;
(e) any acquisition of assets (including securities) solely in
exchange for the issuance of Qualified Capital Stock of the Issuer;
(f) Interest Rate Agreements or Currency Agreements;
(g) collection and lease, utility and worker's compensation,
performance and other similar deposits, all to the extent incurred in
the ordinary course of business;
(h) Investments made pursuant to any deed of change or other
similar agreement permitted under clause (m) of Permitted Liens.
(i) Investments received as part of the settlement of
litigation or in satisfaction of extensions of credit to any Person
otherwise permitted under this Indenture pursuant to the
reorganization, bankruptcy or liquidation of any Person or a good faith
settlement of debts of any Person;
(j) loans or advances to officers or employees of the Issuer
or any Restricted Subsidiary made in the ordinary course of business of
the Issuer or such Restricted Subsidiary to pay business-related travel
expenses or reasonable relocation costs or other reasonable and
ordinary costs of such officers and employees in connection with their
employment by the Issuer or such Restricted Subsidiary, provided such
loans and advances do not aggregate more than Euro 500,000 from time to
time outstanding; and
(k) Investments in existence on the Issue Date.
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the Issue Date;
(b) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Issuer or any Restricted Subsidiary;
(c) any Liens securing the Notes;
(d) 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 5.0
million (or, to the extent not denominated in Euro, the Euro Equivalent
thereof);
(e) 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
-16-
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;
(f) Liens for taxes, assessments, government charges or
claims, including, without limitation, those in favor of 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;
(g) 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);
(h) Easements, rights-of-way, title defects, restrictions
(including zoning restrictions) and other similar charges or
encumbrances not interfering in any material respect with the business
of the Issuer or any Subsidiary;
(i) 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;
(j) 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 the
Issuer or any Subsidiary; provided that such Lien does not extend to
any property or assets of the Issuer or any Subsidiary other than the
assets acquired in connection with the incurrence by the Issuer or its
Subsidiaries of such Acquired Indebtedness;
(k) Liens securing Interest Rate Agreements or Currency
Agreements permitted to be incurred pursuant to clause (h) of the
definition of Permitted Indebtedness or clause (f) of the definition of
Permitted Investments or any collateral for the Indebtedness to which
such Interest Rate Agreements or Currency Agreements relate;
(l) Liens securing Indebtedness permitted to be incurred under
clause (b)(B), (b)(C) and (o) of the definition of Permitted
Indebtedness;
(m) Liens on a portion of the proceeds of Indebtedness
incurred after the date of this Indenture and deposited with a trustee
or escrow agent to secure the payment of up to six semi-annual or
twelve quarterly cash interest payments on such Indebtedness;
(n) Liens securing vendor financing permitted to be incurred
under this Indenture so long as the Indebtedness secured by such Lien
does not exceed Euro 5.0 million (or, to the extent not denominated in
Euro, the Euro Equivalent thereof);
-17-
(o) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment
insurance and other types of social security or insurance;
(p) Liens on cash securing Indebtedness of the Issuer under
letter of credit facilities entered into in the ordinary course of
business and under which recourse to the Issuer is limited to the cash
subject to the Liens;
(q) [Intentionally omitted]; and
(r) any extension, renewal or replacement, in whole or in
part, of any Lien described in the foregoing clauses (a) through (p);
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.
"Pounds Sterling" or "(pound)" means the lawful currency of
the United Kingdom.
"Principal" or "Principal Amount" of a debt security
(including the Notes) means the principal amount of the security plus the
premium, if any, on the security.
"Purchased Shares" shall have the meaning specified in Section
6.05(f).
"QIB" means a "qualified institutional buyer," as defined in
Rule 144A.
"Qualified Capital Stock" of any Person means any and all
Capital Stock of such Person other than Redeemable Capital Stock.
"Record Date" has the meaning provided in Section 2.04(b).
"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" is defined to mean, with respect to any
Note, the date on which such Note is to be redeemed by the Issuer pursuant to
Article III and the terms of the Notes.
"Register" has the meaning provided in Section 2.03.
"Registrar" has the meaning provided in Section 2.03.
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"Regulation S" means Regulation S under the Securities Act.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Subsidiary" means any Subsidiary of the Issuer
(including any newly acquired or newly formed Subsidiary of the Issuer) other
than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Rule 144" means Rule 144 under the Securities Act.
"Rule 145(d)(1)" means Rule 145(d)(1) under the Securities
Act.
"Scheme" means the scheme of arrangement under Section 425 of
the UK Companies ▇▇▇ ▇▇▇▇ between the Issuer and the Scheme Creditors.
"Scheme Creditor" means a creditor of the Issuer in respect of
principal and interest on the April Notes, the July Notes and the December
Notes.
"SCLV" means the Spanish Clearing and Settlement Service (the
Servicio de Compensacion y Liquidacion de Valores, S.A.).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as
amended.
"Self Tender" shall have the meaning specified in Section
6.05(f).
"Senior Bank Credit Facility" means the Euro 199,521,294
Revolving Credit and Performance Bond Facility Agreement dated April 6, 2001, by
and between Jazz Telecom, S.A., as original borrower, Jazz Telecom, S.A. Jazztel
plc Adatel Telecomunicaciones, S.A., as original guarantors, ▇.▇. ▇▇▇▇▇▇ plc, as
arranger and book-runner, Chase Manhattan International Limited, as facility
agent and security agent, and the other parties named therein, as the same may
be amended restated, supplemented, renewed or replaced from time to time,
whether or not with the same lenders and agents and whether or not providing for
the incurrence of additional Indebtedness thereunder.
"Senior Indebtedness" means all amounts outstanding from time
to time under the Senior Bank Credit Facility to the extent they constitute
Permitted Indebtedness as defined in this Indenture.
"Shareholder Rights" has the meaning set forth in Section
6.05(c).
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"Significant Subsidiary" means, at any date of determination,
any Restricted Subsidiary of the Issuer that, together with its Restricted
Subsidiaries, (i) for the most recent fiscal year of the Issuer, accounted for
more than 10% of the consolidated revenues of the Issuer and its Restricted
Subsidiaries or (ii) as of the end of such fiscal year, was the owner of more
than 10% of the consolidated assets of the Issuer and its Restricted
Subsidiaries, all as set forth on the most recently available consolidated
financial statements of the Issuer for such fiscal year.
"Spanish Stock Exchanges" means the Spanish Stock Exchanges of
Madrid, Barcelona, Valencia and Bilbao.
"Stated Maturity" means, 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, and, 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.
"Subordinated Indebtedness" means Indebtedness of the Issuer
that is expressly subordinated in right of payment to the Notes.
"Subsequent Conversion Period" has the meaning specified in
Section 6.01(b).
"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity (i) of which outstanding
Capital Stock having at least a majority of the votes entitled to be cast in the
election of directors is owned, directly or indirectly, by such Person and one
or more other Subsidiaries of such Person, or (ii) of which at least a majority
of voting interest is owned, directly or indirectly, by such Person and one or
more other Subsidiaries of such Person.
"Tax" means any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other liabilities
related thereto).
"Taxing Authority" means any governmental or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"TIA" means the U.S. Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa-77bbbb) as amended.
"Total Incremental Equity" means, at any date of
determination, without duplication (i) the aggregate Net Cash Proceeds received
by the Issuer after the Issue Date from the issuance or sale of Qualified
Capital Stock of the Issuer (including Qualified Capital Stock issued upon the
conversion or exchange of Debt Securities (other than the Notes) or Redeemable
Capital Stock or from the exercise of options, warrants or rights to purchase
Qualified Capital Stock of the Issuer); the issuance or sale of warrants,
options or rights to purchase shares of Qualified Capital Stock the issuance or
sale of Debt Securities or Redeemable Capital Stock that have been converted or
exchanged for Qualified Capital Stock, to the extent that such Cash Proceeds are
received from any Person other than a Subsidiary; minus (ii) the aggregate
amount
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of all Restricted Payments declared or made on or after the Issue Date pursuant
to clause (a) of Section 4.10; minus aggregate amount paid pursuant to clause
(b) (i) through (iv) of Section 4.10.
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday, other than any day on which securities are not traded on the Nuevo
▇▇▇▇▇▇▇ (or, if the Ordinary Shares are not listed thereon, on the principal
securities exchange or automated quotation system on which the Ordinary Shares
are then listed or admitted to trading). If the Ordinary Shares are not quoted
by or admitted for trading on any such organization, "Trading Day" means
Business Day.
"Transaction Date" has the meaning set forth under the
definition of "Annualized Consolidated Operating Cash Flow".
"Transfer Agent" means the Company or such other entity as the
Company shall nominate for this role.
"Trustee" means the party named as such in this Indenture
until a successor replaces it in accordance with the provision of this Indenture
and thereafter is defined to mean such successor.
"UK" or "United Kingdom" means the United Kingdom of Great
Britain and Northern Ireland.
"Unrestricted Definitive Registered Note" means one or more
Definitive Registered Notes that do not and are not required to bear the 144A
Legend.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the
time of determination shall be an Unrestricted Subsidiary (as designated by the
Issuer's Board, as provided below) and (b) any Subsidiary of an Unrestricted
Subsidiary. The Issuer's Board may designate any Subsidiary (including any newly
acquired or newly formed Subsidiary) to be an Unrestricted Subsidiary so long as
(i) neither the Issuer nor any Restricted Subsidiary is directly or indirectly
liable for or provides credit support for or guarantees any Indebtedness of such
Subsidiary other than where recourse to the Issuer 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 the Issuer
or any other Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its scheduled
Maturity; (iii) neither the Issuer 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 the Issuer and (iv) neither the
Issuer 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 Issuer's Board shall be evidenced to the Trustee by filing a
Board Resolution with the Trustee giving effect to such designation. The
Issuer's Board may
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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. In no event shall any Existing Subsidiary be
designated as an Unrestricted Subsidiary.
"U.S." or "United States" means the United States of America
and its territories and possessions and any other areas subject to its
jurisdiction.
"U.S. Dollar Notes" means the $100 million principal amount of
14.0% Senior Notes due in April 2009.
"Voting Stock" means with respect to any Person, Capital Stock
of any class or kind ordinarily having the power to vote for the election of
directors, managers or other voting members of the governing body of such
Person.
"Wholly-Owned" means, with respect to any Subsidiary of any
Person, any Subsidiary all of the outstanding Capital Stock (other than any
director's qualifying shares or Investments by foreign nationals mandated by
applicable law) of which is owned by such Person or one or more Wholly-Owned
Subsidiaries of such Person and with respect to any Subsidiary of the Issuer
shall include all Restricted Subsidiaries in existence on the Issue Date
provided that the ownership interest in such Restricted Subsidiary is not
reduced by the Issuer after the Issue Date.
Section 1.02 Incorporation by Reference of Trust Indenture
Act. This Indenture and the Notes are not subject to the TIA. However, whenever
this Indenture refers to a provision of the TIA, the provision shall be deemed
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
(a) "Commission" means the SEC;
(b) "Indenture Debenture" means the Notes;
(c) "Indenture Security Holder" means a Holder or Noteholder;
(d) "Indenture Trustee" or "Institutional Trustee" means the
Trustee; and
(e) "Obligor" on the indenture debenture means the Issuer or
any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings so assigned to them therein.
Section 1.03 Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) "or" is not exclusive;
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(c) words in the singular include the plural, and words in the
plural include the singular;
(d) "herein," "hereof" and other words of similar import refer
to this Indenture as a whole and not to any particular Article, Section or other
Subsection;
(e) unless otherwise specified herein, all accounting terms
used herein shall be interpreted, all accounting determinations hereunder shall
be made, and all financial statements required to be delivered hereunder shall
be prepared in accordance with GAAP applied on a basis consistent with the most
recent audited consolidated financial statements of the Issuer; and
(f) "U.S. Dollars," "United States Dollars," "U.S.$" and the
symbol "$" each refer to United States dollars, or such other money of the
United States that at the time of payment is legal tender for payment of public
and private debts; the symbol "EUR" and "Euro" refer to Euro, or such other
money of the European Monetary Union that at the time of payment is legal tender
for payment of public and private debts; and the symbol "(pound)" and "Pounds
Sterling" refer to pounds or pounds Sterling, or such other money of the United
Kingdom that at the time of payment is legal tender for payment of public and
private debts.
ARTICLE II
THE NOTES
Section 2.01 Form and Dating.
(a) Global Notes. Notes offered and sold to Holders who elect
to take delivery thereof in the form of Book-Entry Interests shall be issued
initially in the form of a Global Note in bearer form, which shall be deposited
on behalf of the purchasers of the Notes represented thereby pursuant to the
Deposit Agreement, duly executed by the Issuer and authenticated by the Trustee
as hereinafter provided.
Each Global Note shall represent such of the outstanding Notes
as shall be specified therein and the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, repurchases and transfers of interests
therein, and conversions thereof, and the issuance of Additional Notes in
accordance with the terms of this Indenture and the Deposit Agreement.
Ownership of Book Entry interests in the Certificated
Depositary Interests will be limited to persons that have accounts with
Euroclear and/or Clearstream Banking. Book-Entry Interests will be shown on, and
transfers thereof will be effected only through, records maintained in
book-entry form by Euroclear and Clearstream Banking. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions of Clearstream
Banking" and "Customer Handbook" of Clearstream Banking shall be applicable to
the Book-Entry Interests in the Certificated Depositary Interests underlying the
Global Notes.
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Except as set forth in Section 2.07(a) hereof, the Global
Notes may be transferred, in whole and not in part, only to a successor of the
Book-Entry Depositary in accordance with the Deposit Agreement.
(b) Definitive Registered Notes. Definitive Registered Notes
issued upon original issuance or upon transfer of a Book-Entry Interest or a
Definitive Registered Note, or in exchange for a Book-Entry Interest or a
Definitive Registered Note, shall be issued in accordance with this Indenture.
(c) Book-Entry Provisions. Neither the Depositary nor any
Participant or Indirect Participant shall have any rights either under this
Indenture or under any Global Note. Notwithstanding the foregoing, nothing
herein shall prevent the Issuer, the Trustee or any Agent of the Issuer or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or the Book-Entry Depositary or
impair, as between the Book-Entry Depositary and the Depositary and its
Participants and Indirect Participants, the operation of customary practices of
such Depositary governing the exercise of the rights of an owner of a beneficial
interest in any Global Note.
(d) Note Forms. The provisions of the form of Notes contained
in Exhibit A and Exhibit B hereto are incorporated herein by reference. The
Global Notes shall be issuable only in bearer form and the Definitive Registered
Notes shall be issuable only in registered form. The Notes shall be issued
without coupons and only in denominations of Euro 1.00 principal amount or any
integral multiple thereof.
(e) Dating. Each Note shall be dated the date of its
authentication.
(f) Additional Notes. Subject to compliance with Section 4.01,
the Issuer is permitted to issue more Notes after the Issue Date ("Additional
Notes") under this Indenture in an unlimited amount, to satisfy any interest not
paid in cash. The Initial Notes and any Additional Notes subsequently issued
under the Indenture shall be treated as a single class for all purposes under
this Indenture, including, without limitation, waivers, amendments, redemptions,
voting and mandatory repurchase offers.
Section 2.02 Execution and Authentication. An Officer of the
Issuer shall execute the Notes inscribed thereon on behalf of the Issuer by
manual or facsimile signature. The Issuer's corporate seal may but need not be
impressed, affixed, imprinted or reproduced on the Notes.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note or at any time
thereafter, the Note shall be valid nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. Such
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate Notes on the Issue Date in an
aggregate principal amount of Euro 75.0 million, upon receipt of an Officer's
Certificate signed by an Officer of the Issuer directing the Trustee to
authenticate the Notes and certifying that all conditions precedent
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to the issuance of the Notes contained herein have been complied with. In no
event may the aggregate principal amount of Notes outstanding at any time exceed
Euro 75.0 million, except for issuance of Additional Notes and except as
provided in Section 2.08 and Section 2.11.
The Trustee shall authenticate and deliver Additional Notes
upon receipt of an Officer's Certificate signed by an Officer of the Issuer
directing the Trustee to authenticate and deliver such amount of Additional
Notes specified therein and the date on which such Additional Notes are to be
authenticated, and certifying that the issuance of such Additional Notes comply
with the terms of this Indenture and the Additional Notes.
The Trustee may appoint an authenticating agent acceptable to
the Issuer to authenticate Notes. Unless limited by the terms of such
appointment, an authenticating agent may authenticate Notes whenever the Trustee
may do so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. Such authenticating agent shall have the
same rights as the Trustee in any dealings hereunder with the Issuer or with any
of the Issuer's Affiliates.
Section 2.03 Registrar and Paying and Conversion Agent. The
Issuer will, for so long the as the Notes are listed on the Spanish Stock
Exchange maintain in the City of London, an office or agency where the Notes may
be surrendered for registration of transfer or exchange or for presentation for
payment or for conversion, redemption or repurchase and where notices and
demands to or upon the Issuer in respect of the Notes and this Indenture may be
served.
The Issuer hereby appoints the Trustee as the Paying and
Conversion Agent and Registrar, and each of the Corporate Trust Office of the
Trustee and the office or agency of the Trustee in the city of London, located
at ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ attention: Corporate Trust
Administration (Jazztel plc, 12.0% Convertible Notes due 2012) as such an office
or agency of the Issuer for each of the aforesaid purposes.
The Registrar shall keep a register (the "Register") of the
Definitive Registered Notes and of their transfer and exchange. Any notice to be
given under this Indenture or under the Notes by the Trustee or the Issuer to
Noteholders shall be mailed by first class mail to each Holder of Definitive
Registered Notes at their address as it appears at the time of such mailing in
the Register, and to the Note Custodian as the Holder of any Global Note.
The Issuer may at any time and from time to time vary or
terminate the appointment of any such agent or appoint any additional agents for
any or all of such purposes; provided, however, that until all of the Notes have
been delivered to the Trustee for cancellation, or moneys sufficient to pay the
principal of, premium, if any, and interest on the Notes have been made
available for payment and either paid or returned to the Issuer, the Issuer will
maintain in the city of London, an office or agency where Notes may be presented
or surrendered for payment and conversion, which shall initially be The Bank of
New York or an Affiliate of the Trustee, where Notes may be surrendered for
registration of transfer or exchange and where notices and demands to or upon
the Issuer in respect of the Notes and this Indenture may be served. The Issuer
will give prompt written notice to the Trustee and to the Holders of the
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appointment or termination of any such agents and of the location and any change
in the location of any such office or agency.
The Issuer may appoint one or more co-Registrars and one or
more additional Paying and Conversion Agents and the terms "Registrar" and
"Paying and Conversion Agent" shall include any such additional co-Registrar or
Paying and Conversion Agent, as applicable; provided, however, that in no event
may the Issuer or any of its Affiliates act as Paying and Conversion Agent. The
Issuer shall enter into an appropriate agency agreement with any Agent not a
party to this Indenture and the agreement shall implement the provisions of this
Indenture that relate to such Agent. Without limiting the foregoing, each such
agreement appointing a Principal Paying and Conversion Agent must contain
provisions substantially to the effect of Section 2.07 hereof. The Issuer shall
notify the Trustee of the name and address of any such Agent. If the Issuer
fails to maintain a Registrar or Paying and Conversion Agent, or fails to give
the foregoing notice, the Trustee shall act as such and shall be entitled to
appropriate compensation in accordance with Section 8.07.
Section 2.04 Holders to Be Treated as Owners; Payments of
Interest.
(a) The Issuer, the Paying and Conversion Agent, the
Registrar, the Trustee and any agent of the Issuer, the Paying and Conversion
Agent, the Registrar or the Trustee may deem and treat the person in whose name
any Definitive Registered Note is registered as the absolute owner of such 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
Registered Note and for all other purposes; and neither the Issuer, the Paying
and Conversion Agent, the Registrar, the Trustee nor any agent of the Issuer,
the Paying and Conversion Agent, the Registrar or the Trustee shall be affected
by any notice to the contrary. The Issuer, the Paying and Conversion Agent, the
Registrar, the Trustee and any agent of the Issuer, the Paying and Conversion
Agent, the Registrar or the Trustee may treat the Holder of a Global Note as the
absolute owner thereof for the purposes of receiving payment of or on account of
the Principal of and, subject to the provisions of this Indenture, interest on,
such Global Note and for all other purposes; and neither the Issuer, the Paying
and Conversion Agent, the Registrar, the Trustee, nor any agent of the Issuer,
the Paying and Conversion 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 his 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.
(b) Subject to Section 6.13, the Person in whose name any
Definitive Registered Note is registered 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 Registered Note subsequent to the 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. The term "Record Date" as used with respect to any Interest Payment Date
for the Notes shall mean the date specified as such in the Notes. Payments of
interest on a Global Note will be made to the Holder of such Global Note on each
Interest Payment Date; provided that, in the event of an exchange or transfer of
a Book-Entry Interest in a Global Note for Definitive Registered Notes
subsequent to a record date
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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 Registered Note shall be
made to the Holder of such Global Note, notwithstanding Section 2.13 or any
other provision hereof to the contrary; and further provided that, in the event
of any transfer or exchange of a Definitive Registered Note for a Book-Entry
Interest in a Global Note 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 Registered Note shall be made, subject to Section
6.13, to the Person in whose name such Definitive Registered Note was registered
on such record date notwithstanding Section 2.13.
Section 2.05 Paying and Conversion Agent to Hold Money in
Trust. The Paying and Conversion Agent shall hold in trust for the benefit of
the Noteholders or the Trustee all money held by the Paying and Conversion Agent
for the payment of principal of, or interest on, the Notes (whether such money
has been paid to it by the Issuer or any other obligor on the Notes), and the
Issuer and the Paying and Conversion Agent shall notify the Trustee of any
default by the Issuer (or any other obligor on the Notes) in making any such
payment. Money held in trust by the Paying and Conversion Agent need not be
segregated except as required by law and in no event shall the Paying and
Conversion Agent be liable for any interest on any money received by it
hereunder. The Issuer at any time may require the Paying and Conversion Agent to
pay all money held by it to the Trustee and account for any funds disbursed and
the Trustee may at any time during the continuance of any Event of Default
specified in Section 7.01(a)(i) or (ii), upon written request to the Paying and
Conversion Agent, require such Paying and Conversion Agent to pay forthwith all
money so held by it to the Trustee and to account for any funds disbursed. Upon
making such payment, the Paying and Conversion Agent shall have no further
liability for the money delivered to the Trustee.
Section 2.06 Noteholder Lists. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to
it from the Registrar of the names and addresses of the Holders of Definitive
Registered Notes. The Issuer shall furnish to the Trustee (if the Trustee is not
the Registrar) and the Paying and Conversion Agent at least five Business Days
before each Interest Payment Date, and at such other times as they may request
in writing, a list in such form and as of such date as they may reasonably
require of the names and addresses of the Holders of Definitive Registered
Notes, if any.
Section 2.07 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes.
(i) Transfer of the Global Notes shall be by delivery. The
Issuer, the Note Custodian, and the Book-Entry Depositary have agreed
that the Global Notes shall only be delivered in the circumstances
described in the Deposit Agreement.
(ii) All Global Notes will be exchanged by the Issuer for
Definitive Registered Notes in accordance with the Deposit Agreement
if: (i) Euroclear and Clearstream notify the Issuer that they are at
any time unwilling or unable to continue as, or cease to be, a clearing
agency and a successor clearing agency is not appointed by the Issuer
within 90
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days of such notification or its becoming aware of such
cessation, or (ii) the Book-Entry Depositary or Note Custodian notifies
the Issuer and the Trustee under Section 3.7 of the Deposit Agreement
that it is at any time unwilling or unable to continue as Book-Entry
Depositary or Note Custodian, as the case may be, and a successor
Book-Entry Depositary or Note Custodian is not able to be appointed by
the Issuer within 90 days of such notification. In addition, if an
Event of Default has occurred and is continuing, owners of Book-Entry
Interests shall be entitled to receive delivery of Definitive
Registered Notes in exchange for beneficial interest in the Global
Notes. Upon the occurrence of any of the preceding events, Definitive
Registered Notes shall be issued to the holders of Book-Entry Interests
in such names as the Book-Entry Depositary shall instruct the Trustee
based on the instructions of the Depositary.
(iii) Global Notes may also be exchanged or replaced, in whole
or in part, as provided in Section 2.08 and Section 2.11. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global
Note or any portion thereof, pursuant to Section 2.08 or Section 2.11
hereof, shall be authenticated and delivered in the form of, and shall
be, a Global Note.
(iv) Global Notes and Book-Entry Interests therein may be
transferred or exchanged only as provided in this Section 2.07.
(b) General Provisions Applicable to Transfers and Exchanges
of the Notes. Transfers of Book-Entry Interests in the Global Notes (other than
transfers of Book-Entry Interests in connection with which the transferee takes
delivery thereof in the form of a Book-Entry Interest in the same Global Note)
shall require compliance with this Section 2.07(b), as well as one or more of
the other following subparagraphs of Section 2.07, as applicable.
In connection with all transfers and exchanges of Book-Entry
Interests (other than transfers of Book-Entry Interests in connection with which
the transferee takes delivery thereof in the form of a Book-Entry Interest in
the same Global Note), the Paying and Conversion Agent must receive from the
Depositary: (1) a written order from a Participant or an Indirect Participant
given to the Depositary in accordance with the Applicable Procedures directing
the Depositary to debit from the transferor a Book-Entry Interest in an amount
equal to the Book-Entry Interest to be transferred or exchanged; (2) a written
order from a Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to credit or
cause to be credited a Book-Entry Interest in another Global Note in an amount
equal to the Book-Entry Interest to be transferred or exchanged; and (3)
instructions given in accordance with the Applicable Procedures containing
information regarding the Participant account to be credited with such increase.
In connection with a transfer or exchange of a Book-Entry
Interest for a Definitive Registered Note as permitted by Section 2.07(a), the
Paying and Conversion Agent and the Registrar must receive from the Depositary:
(1) a written order from a Participant or an Indirect Participant given to the
Depositary in accordance with the Applicable Procedures directing the Depositary
to debit from the transferor a Book-Entry Interest in an amount equal to the
Book-Entry Interest to be transferred or exchanged; (2) a written order from a
Participant directing the Registrar to cause to be issued a Definitive
Registered Note in an amount equal to
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the Book-Entry Interest to be transferred or exchanged; and (3) instructions
containing information regarding the Person in whose name such Definitive
Registered Note shall be registered to effect the transfer or exchange referred
to above.
In connection with any transfer or exchange of Definitive
Registered Notes, the Holder of such Notes shall present or surrender to the
Registrar the Definitive Registered Notes duly endorsed or accompanied by a
written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by its attorney, duly authorized in writing. In
addition, in connection with a transfer or exchange of a Definitive Registered
Note for a Book-Entry Interest, the Paying and Conversion Agent must receive a
written order directing the Depositary to credit the account of the transferee
in an amount equal to the Book-Entry Interest to be transferred or exchanged.
Upon satisfaction of all of the requirements for transfer or
exchange of Book-Entry Interests in Global Notes contained in this Indenture,
the Notes and the Deposit Agreement, the Paying and Conversion Agent or the
Registrar shall, as specified in this Section 2.07, instruct the Note Custodian
to endorse the relevant Global Note(s) with any increase or decrease and shall
instruct the Book-Entry Depositary to reflect such increase or decrease in the
register relating to the Certificated Depositary Interests underlying such
Global Notes and maintained by the Book-Entry Depositary.
(c) Transfer of Book-Entry Interests in a Affiliate Global
Note to Book-Entry Interests in a Non-Affiliate Global Note.
A Book-Entry Interest in a Affiliate Global Note may be
transferred to a Person who takes delivery thereof in the form of a Book-Entry
Interest in a Non-Affiliate Global Note only if the transfer complies with the
requirements of Section 2.07(a) and (b) above, and the Paying and Conversion
Agent and Company receive a certificate to the effect set forth in Exhibit C
hereto and an opinion of counsel confirming that such transfer does not violate
the Securities Act and no restrictive legend is required to be placed on such
Non-Affiliate Global Note as a result of such transfer.
Upon the receipt of such certificate and opinion and the
orders and instructions required by Section 2.07(a) and (b), the Paying and
Conversion Agent shall (i) instruct the Note Custodian to decrease Schedule A to
such Affiliate Global Note and increase Schedule A to such Non Affiliate Global
Note, by the principal amount of such transfer and (ii) provide the Depositary
with all information regarding the Participant accounts to be credited and
debited in connection with such transfer.
(d) Transfer of Book-Entry Interests in a Non Affiliate Global
Note to Book-Entry Interests in an Affiliate Global Note.
A Book-Entry Interest in a Non Affiliate Global Note may be
transferred to a Person who takes delivery thereof in the form of a Book-Entry
Interest in an Affiliate Global Note only if the transfer is made pursuant to
the requirements of Section 2.07(a) and (b) above.
Upon receipt of such orders and instructions required by
Section 2.07(a) and (b), the Paying and Conversion Agent shall (i) instruct the
Note Custodian to increase Schedule A
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to such Affiliate Global Note and decrease Schedule A to such Non Affiliate
Global Note by the principal amount of such transfer and (ii) provide the
Depositary with all information regarding the Participant accounts to be
credited and debited in connection with such transfer.
(e) Transfer of Affiliate Definitive Registered Notes that do
not contain a 144A Legend to Book-Entry Interests in Non-Affiliate Global Notes
and transfer of Non-Affiliate Definitive Registered Notes that do not contain a
144A Legend to a Book-Entry Interest in the Non-Affiliate Global Note.
(i) Any Holder of an Affiliate Definitive Registered Note that
does not contain a 144A Legend may transfer such Affiliate Definitive
Registered Note to a Person who takes delivery thereof in the form of a
Book-Entry Interest in a Non-Affiliate Global Note, only if the Paying
and Conversion Agent and Company shall have received a certificate to
the effect set forth in Exhibit C hereto and an opinion of counsel
confirming that such transfer does not violate the Securities Act and
no restrictive legend is required to be placed on such Non-Affiliate
Global Note as a result of such transfer;
(ii) Any Holder of a Non-Affiliate Definitive Registered Note
that does not contain a 144A Legend may transfer such Non-Affiliate
Definitive Registered Note to a Person who takes delivery thereof in
the form of a Book-Entry Interest in a Non-Affiliate Global Note only
if the Paying and Conversion Agent and Company shall have received a
certificate to the effect set forth in Exhibit C hereto and an opinion
of counsel confirming that such transfer does not violate the
Securities Act and no restrictive legend is required to be placed on
such Non Affiliate Global Note as a result of such transfer.
Upon satisfaction of the foregoing conditions, the Registrar
shall (i) deliver the Definitive Registered Notes to the Trustee for
cancellation pursuant to Section 2.12 hereof, (ii) record such transfer on the
Register, (iii) instruct the Note Custodian to endorse Schedule A to the
relevant Global Note to reflect the increase in principal amount resulting from
such transfer, (iv) instruct the Book-Entry Depository to reflect such increase
in the register relating to the Certificated Depository Interest underlying such
Global Note and (v) provide the Depositary, with all information regarding the
Participant accounts to be credited in connection with such transfer.
(f) Transfer of a Book-Entry Interest in an Affiliate Global
Note for a Definitive Registered Note.
Any Holder of a Book-Entry Interest in an Affiliate Global
Note may transfer such Book-Entry Interest in an Affiliate Global Note to a
Person who takes delivery thereof in the form of a Definitive Registered Note,
only if the Paying and Conversion Agent and Company receive a certificate to the
effect set forth in Exhibit C and an opinion of counsel confirming that such
transfer does not violate the Securities Act.
Upon the receipt of such certificate and opinion and the
orders and instructions required by Section 2.07(a) and (b) above the Trustee
will cause, in accordance with the standing instructions and Applicable
Procedures of the Depositary, the aggregate principal amount of the Affiliate
Global Note to be reduced and, following such reduction, the Issuer will execute
and,
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upon receipt of an authentication order in the form of an Officers' Certificate,
the Trustee will authenticate and deliver to the transferee a Definitive
Registered Note. The Definitive Registered Note shall be issued with a 144A
Legend unless the transferor delivers to the Paying and Conversion Agent and
Company a legal opinion that such 144A Legend is not required to be placed on
such Definitive Registered Note.
Definitive Registered Notes issued in exchange for a
Book-Entry Interest in a Global Note shall be registered in such names and in
such authorized denominations as the Depositary, pursuant to instructions from
its direct or indirect Participants or otherwise, shall instruct the Trustee.
The Trustee shall make such Definitive Registered Notes available for delivery
to the Persons in whose names such Notes are registered.
(g) Transfer of Definitive Registered Notes.
Subject to Section 2.07(e), when Definitive Registered Notes
are presented to the Registrar with a request to, register the transfer of such
Definitive Registered Notes, the Registrar shall register the transfer if its
reasonable requirements for such transaction are met; provided, however, that
the Definitive Registered Notes surrendered for transfer:
(i) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the Issuer
and the Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(ii) in the case of Affiliate Definitive Registered Notes or
any Definitive Registered Note that contains a 144A Legend, shall be
accompanied by certificates and legal opinions as the Registrar and the
Issuer may reasonably request in order to ensure compliance with the
Securities Act.
Upon satisfaction of the foregoing conditions, the Registrar
shall deliver the surrendered Definitive Registered Note to the Trustee for
cancellation pursuant to Section 2.12 hereof and the Issuer shall execute and
the Trustee shall authenticate and deliver such Definitive Registered Note to
the Person as the Holder of the surrendered Definitive Registered Note shall
designate.
(h) Exchange of Notes. Definitive Registered Notes and
Book-Entry Interests in Affiliate Global Notes may be exchanged upon the receipt
of such opinions and certificates as the Issuer and Conversion and Paying Agent
may reasonably request.
(i) 144A Legend. The following legend shall appear on the face
of all Notes subject to restrictions on transfer under the Securities Act and
issued under the Indenture, unless the Issuer determines otherwise in compliance
with applicable law:
THIS 12.0% CONVERTIBLE NOTE DUE 2012 AND ANY
INTEREST HEREIN HAVE NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND ANY OFFER, SALE, PLEDGE OR OTHER TRANSFER
THEREOF MUST BE MADE ONLY (A) (I) TO A PERSON
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WHOM THE PURCHASER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A UNDER THE SECURITIES ACT
("RULE 144A") IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) IN A
TRANSACTION MEETING THE REQUIREMENTS OF
REGULATION S UNDER THE SECURITIES ACT, (III)
PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), OR (IV) TO JAZZTEL
PLC OR ANY SUBSIDIARY THEREOF AND (B) IN EACH
CASE, IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF ANY JURISDICTION. CONVERSION
OF THIS NOTE AND ANY INTEREST HEREIN IS SUBJECT
TO SATISFACTION OF CERTAIN REQUIREMENTS SET
FORTH IN THE INDENTURE RELATED HERETO, AND ANY
ORDINARY SHARES ISSUED ON SUCH CONVERSION WILL
BE SUBJECT TO THE SAME TRANSFER RESTRICTIONS
REFERRED TO ABOVE.
(j) Cancellation. At such time as all Book-Entry Interests
have been exchanged for Definitive Registered Notes or all Global Notes have
been redeemed or converted, the Global Notes shall be returned to the Trustee
for cancellation in accordance with Section 2.12 hereof.
(k) General Provisions Relating to All Transfers and
Exchanges.
(i) To permit registration of transfers and exchanges, the
Issuer shall execute and the Trustee shall authenticate Global Notes
and Definitive Registered Notes upon receipt of an Officer's
Certificate as provided in Section 2.02.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange, but the Issuer may require
payment of a sum sufficient to cover any taxes, duties or governmental
charge (including any United Kingdom stamp duty reserve tax due upon
deposit of securities into Euroclear or any other clearing system)
payable in connection therewith (other than any such taxes, duties or
governmental charge payable upon exchange or transfer pursuant to
Sections 2.11, 4.08 and 10.05 hereof).
(iii) All Global Notes and Definitive Registered Notes issued
upon any registration of transfer or exchange of Global Notes or
Definitive Registered 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 Registered
Notes surrendered upon such registration of transfer or exchange.
(iv) The Issuer shall not be required to register the transfer
of or, to exchange, Definitive Registered Notes during (1) a period
beginning at the opening of business 15 calendar days before any
Redemption Date and ending at the close of business on the Redemption
Date, (2) a period beginning at the opening of business 15 calendar
days
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immediately prior to the Maturity Date, (3) a period beginning at the
opening of business on the record date with respect to any Interest
Payment Date and ending at the close of business on such Interest
Payment Date, (4) in respect of which a Conversion Notice has been
delivered or (5) which the Holder has tendered for repurchase in
connection with a Mandatory Repurchase Offer.
(v) Prior to due presentment for the registration of a
transfer of any Definitive Registered Note, the Trustee, any Agent and
the Issuer may deem and treat the Person in whose name any Definitive
Registered Note is registered as the absolute owners of such Definitive
Registered Note for the purpose of receiving payment of principal of
and interest on such Notes and for all other purposes, and neither the
Trustee, any Agent nor the Issuer shall be affected by notice to the
contrary.
(vi) The Trustee shall authenticate Global Notes and
Definitive Registered Notes in accordance with the provisions of
Section 2.02 hereof.
(vii) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under the Indenture or under applicable law with respect to any
transfer of any interest in any Note (including any transfers between
or among beneficial owners of interest in any Global Note) other than
to require delivery of such certificates, opinions and other
documentation or evidence as are expressly required by, and to do so
when expressly required by the terms of, this Indenture, and to examine
the same to determine substantial compliance as to form with the
express requirements thereof.
Section 2.08 Replacement Notes. If a mutilated Definitive
Registered Note is surrendered to the Registrar or the Trustee, if a mutilated
Global Note is surrendered to the Issuer or if the Holder of a Note claims that
the Note has been lost, destroyed or wrongfully taken, the Issuer shall issue
and the Trustee 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 Trustee and, in the case of a Definitive Registered Note, the
Registrar, evidence reasonably acceptable to them of the ownership and the
destruction, loss or theft of such Note. If required by the Trustee, the
Registrar (in the case of a Definitive Registered Note) or the Issuer, an
indemnity bond shall be posted, sufficient in the judgment of each to protect
the Issuer, the Registrar (in the case of a Definitive Registered Note) or the
Trustee from any loss that any of them may suffer if such Note is replaced. The
Issuer may charge such Holder for the Issuer's out-of-pocket expenses in
replacing such Note and the Trustee may charge the Issuer for the Trustee's
expenses in replacing such Note. Every replacement Note shall constitute an
additional obligation of the Issuer.
Section 2.09 Outstanding Notes. The Notes outstanding at any
time are all Notes that have been authenticated by the Trustee except for (a)
those canceled by it, (b) those delivered to it for cancellation, (c) to the
extent set forth in Sections 9.01 and 9.02, on or after the date on which the
conditions set forth in Section 9.01 or 9.02 have been satisfied, those Notes
theretofore authenticated and delivered by the Trustee hereunder and (d) those
described in this
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Section 2.09 as not outstanding. Subject to Section 2.10, a Note does not cease
to be outstanding because the Issuer or one of its Affiliates holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser in whose hands such Note is a
legal, valid and binding obligation of the Issuer.
If the principal amount of any Note is considered to be paid
under Section 4.01, it ceases to be outstanding and interest thereon shall cease
to accrue.
If a Paying and Conversion Agent holds, in its capacity as
such, on any Maturity Date or on any Redemption Date, money sufficient to pay
all accrued interest and Principal with respect to such Notes payable on that
date and is not prohibited from paying such money to the Holders thereof
pursuant to the terms of this Indenture, then on and after that date such Notes
cease to be outstanding and interest on them ceases to accrue.
Section 2.10 Treasury Notes. In determining whether the
Holders of the required principal amount of Notes have concurred in any
declaration of acceleration or notice of default or direction, waiver or consent
or any amendment, modification or other change to this Indenture, Notes owned by
the Issuer or an Affiliate of the Issuer shall be disregarded as though they
were not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent
or any amendment, modification or other change to this Indenture, only Notes
that the Trustee actually knows are so owned shall be so disregarded.
Section 2.11 Temporary Notes. Until definitive Notes are
prepared and ready for delivery, the Issuer may prepare and the Trustee shall
authenticate temporary Notes in accordance with Section 2.02. Temporary Notes
shall be substantially in the form of definitive Notes but may have variations
that the Issuer considers appropriate for temporary Notes. Without unreasonable
delay, the Issuer shall prepare and the Trustee shall authenticate definitive
Notes in exchange for temporary Notes. Until such exchange, temporary Notes
shall be entitled to the same rights, benefits and privileges as definitive
Notes.
Section 2.12 Cancellation. The Issuer at any time may deliver
or cause to be delivered Notes to the Trustee for cancellation. The Registrar
and the Paying and Conversion Agent shall forward to the Trustee any Notes
surrendered to them for registration of transfer or exchange, or payment,
purchase or conversion. The Trustee shall cancel all Notes surrendered for
registration of transfer, exchange, payment, replacement, cancellation, purchase
or conversion and shall dispose of canceled Notes in accordance with its policy
of disposal, unless the Issuer directs the Trustee 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 has redeemed, paid, purchased or converted, or
that have been delivered to the Trustee 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 Persons who are
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Holders of Definitive Registered 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 Registered Notes, if any, and, if any Global Note is still
outstanding, to the Book-Entry Depositary and the Depositary, 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.
Section 2.14 CUSIP Number and ISIN Number. The Issuer in
issuing the Notes may use a "CUSIP" number or an "ISIN" number, and if so, such
CUSIP number or ISIN number shall be included in notices of redemption or
purchase as a convenience to Holders; provided, however, that any such notice
may state that no representation is made as to the correctness or accuracy of
the CUSIP number or ISIN number printed in the notice or on the Notes, and that
reliance may be placed only on the other identification numbers printed on the
Notes. The Issuer will promptly notify the Trustee of any change in the CUSIP
number or ISIN number.
Section 2.15 Deposit of Moneys. Unless the Issuer shall have
elected to make payments of interest by delivery of Additional Notes, prior to
12:00 noon in the location of the Paying and Conversion Agent, on the Business
Day preceding each Interest Payment Date and on the Maturity Date, and on the
Business Day immediately following any acceleration of the Notes pursuant to
Section 7.02, the Issuer shall deposit with the Paying and Conversion Agent in
immediately available funds, money (in Euro or pounds sterling, as the case may
be,) sufficient to make cash payments, if any, due on such Interest Payment
Date, Maturity Date or Business Day, as the case may be, in a timely manner
which permits the Paying and Conversion Agent to remit payment to the Holders on
such Interest Payment Date, Maturity Date or Business Day, as the case may be.
ARTICLE III
REDEMPTION
Section 3.01 Election to Redeem; Notices to Trustee. The
Issuer may, at any time, at its option call for redemption of all (but not less
than all) of the Notes then outstanding (including, without limitation, all
Additional Notes), at a redemption price, paid as set forth in Section 3.02,
equal to 101% of the Principal Amount of all of such Notes, plus accrued but
unpaid interest thereon through the Redemption Date. If the Issuer elects to
redeem Notes, it shall notify the Trustee and the Paying and Conversion Agent in
writing of the Redemption Date as provided in Section 3.03, together with an
Officer's Certificate stating that such redemption will comply with the
conditions contained herein and in the Notes.
Section 3.02 Holder Election as to Form of Redemption Payment.
Upon receiving the Issuer's notice of redemption, each Holder shall be entitled
to elect whether the redemption price due in respect of all of its Notes shall
be paid in (a) cash, or (b) a number of Ordinary Shares based on the Conversion
Price in existence on the Redemption Date, or (c) any
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combination of cash and Ordinary Shares based on the Conversion Price in
existence on the Redemption Date. Where redemption is paid in cash, the Issuer
may, at its option, notwithstanding anything herein to the contrary, pay the
Principal Amount of such redemption in pounds sterling rather than Euro,
provided that if it does so elect it shall pay an amount equal to 101.5% of
Principal Amount of the Notes to which the cash payment relates with the
sterling amount calculated by applying the Euro Equivalent on the date that the
cash payment is due. Each Holder will be required to make the foregoing
election, by completing, executing and returning to the Issuer, within ten (10)
Business Days of receipt, that portion of the Issuer's Notice of Redemption
which contains election instructions for each Holder with respect to its Notes.
Subject to the next sentence, failure to timely return a Notice of Redemption
shall be deemed an election to take cash. Notwithstanding any such election,
each Holder shall retain its right to convert some or all of its Notes into
Ordinary Shares, by exercising its Conversion Rights up to the close of business
on the Business Day preceding the Redemption Date.
Section 3.03 Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, the Issuer shall mail or cause the
mailing of a notice of redemption by first-class mail to each Holder of Notes to
be redeemed and to the Trustee and the Paying and Conversion Agent. The notice
shall state:
(a) the Redemption Date;
(b) notice to the effect that redemption is being made
pursuant to Section 3.01 of the Indenture;
(c) the redemption price per Note, equal to 101% of the
Principal Amount thereof (or, in the case of a redemption payable in pounds
sterling, 101.5% of the Principal Amount thereof), and the amount of accrued but
unpaid interest to the Redemption Date;
(d) the name and address of the Paying and Conversion Agent;
(e) that Global Notes called for redemption must be
surrendered to the Paying and Conversion Agent and all Definitive Registered
Notes called for redemption must be surrendered to the Paying and Conversion
Agent to collect the redemption price and accrued interest, if any;
(f) that Holders may exercise their Conversion Right with
respect to the Notes at any time before the close of business (at the place
where the relevant Note is delivered for conversion) on the Business Day prior
to the Redemption Date, except that if there is a default in making payment in
respect of such Note on the Redemption Date, the Conversion Right may be
exercised up to the close of business (at the place aforesaid) on the date on
which such redemption payment is made and notice thereof is given;
(g) that Holders who want to convert their Notes must satisfy
the applicable requirements in Article VI hereof;
(h) that, unless the Issuer defaults in making the redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the Redemption Date and the only remaining right of the Holders of such Notes is
to receive payment of the redemption price upon surrender to the relevant Paying
and Conversion Agent of the Notes redeemed;
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(i) the CUSIP Number and/or ISIN number, if any, of the Notes;
and
(j) the currency in which the Issuer intends to redeem the
Notes.
At the Issuer's request made in writing, accompanied by a
notice of the Redemption Date and the Officer's Certificate as provided in
Section 3.01, not less than 15 days prior to the latest date notice to Holders
may be mailed pursuant to this Section 3.03 the Trustee shall give the notice of
redemption in the Issuer's name and at the Issuer's expense.
Section 3.04 Effect of Notice of Redemption. Once notice of
redemption is mailed, Notes called for redemption become due and payable on the
Redemption Date and at the redemption price, and interest on Notes called for
redemption will cease to accrue from and after the Redemption Date (unless the
Issuer defaults in providing the funds or Ordinary Shares for such redemption)
and such Notes will then cease to be outstanding. Upon surrender to the Paying
and Conversion Agent, such Notes shall be paid at the redemption price plus
accrued interest, if any, to the Redemption Date, but interest installments
whose maturity is on or prior to such Redemption Date will be payable on the
relevant Interest Payment Dates to the Holders which would otherwise have been
entitled thereto pursuant to this Indenture and the Notes.
Section 3.05 Deposit of Redemption Price. Prior to 12:00 noon
on the Business Day preceding any Redemption Date, the Issuer shall deposit with
the Paying and Conversion Agent (A) immediately available funds (in Euro or
pounds sterling, as the case may be,) sufficient to pay the redemption price
(including all accrued but unpaid interest on) of all Notes to be redeemed in
cash, per election of the Holders, and (B) an aggregate number of fully-paid and
non-assessable Ordinary Shares, sufficient to pay the redemption price
(including all accrued but unpaid interest on) of all Notes to be redeemed for
Ordinary Shares, per election of the Holders; and shall deliver to the Paying
and Conversion Agent an Officer's Certificate specifying the amount of funds and
number of Ordinary Shares to be delivered to each Holder and stating that the
funds and Ordinary Shares deposited shall satisfy the redemption price in
accordance with the election of the Holders.
ARTICLE IV
COVENANTS
Section 4.01 Payment of Notes. The Issuer shall pay the
principal of, and interest on, the Notes on the dates and in the manner provided
in the Notes and this Indenture.
An installment of principal or interest shall be considered
paid on the date due if the Paying and Conversion Agent holds on such date
immediately available funds (in Euro or pounds sterling, as the case may be,)
designated for and sufficient to pay such installment.
The principal of the Notes shall bear interest starting from
the Issue Date. In the case of a default in payment of Principal upon
acceleration, redemption, purchase or mandatory repurchase the overdue Principal
shall bear interest and such interest shall be payable as provided in the next
succeeding paragraph.
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The Issuer shall pay interest on overdue Principal and
interest on overdue installments of interest, to the extent lawful, at a rate
equal to that borne by the Notes. Any such interest shall be payable on demand
in cash and shall be compounded semiannually on each semi-annual interest
payment date.
The Issuer may elect to discharge its obligation to pay cash
interest on the Notes (in whole or in part) on any Interest Payment Date (other
than the Interest Payment Date falling on the Stated Maturity of the Notes) in
respect of some or all of the interest then due by the issue of Additional Notes
under this Indenture by giving not less then 5 days' written notice of its
intention to do so to the Trustee and to the Paying and Conversion Agent by
delivering to them a Board Resolution of the Issuer and an Officer's
Certificate, each setting out the aggregate principal amount of such Additional
Notes to be authenticated and delivered and the date on which such Additional
Notes are to be authenticated and shall, so long as Notes are listed on the
Spanish Stock Exchanges and the applicable Spanish rules so require, notify the
CNMV and the Spanish Stock Exchanges of such payment by way of Additional Notes.
Notwithstanding the foregoing, the Issuer shall not pay cash interest on less
than all the Outstanding Notes unless it does so in order to pay withholding
taxes in cash.
In the case of interest paid on Global Notes by way of an
issue of Additional Notes, the Issuer shall (a) procure that on the relevant
Interest Payment Date the Book-Entry Depositary shall have the Global Notes
delivered to the Paying and Conversion Agent for increase by annotation and (b)
authorize the Paying and Conversion Agent to increase the principal amount of
the Global Notes to reflect the Additional Notes so issued, and the Paying and
Conversion Agent shall notify the Book-Entry Depositary to record in the
Book-Entry Register the corresponding changes in the Certificated Depositary
Interests. In the event that the Issuer is informed by any of Euroclear or
Clearstream, that such issue of Additional Notes will not be treated by such
clearing system as fungible with the existing Notes, the Issuer shall procure
that new Global Notes representing the Additional Notes are issued in accordance
with the provisions of this Indenture to be held by the Book-Entry Depositary
and shall procure that the Book-Entry Depositary shall issue interests in such
Additional Notes to the persons holding the Global Notes on a pro rata basis.
In the case of interest paid upon Definitive Registered Notes
by way of an issue of Additional Notes, the Issuer shall on the relevant
Interest Payment Date execute, deliver and procure to be authenticated
Additional Notes in the form of Definitive Registered Notes to the Holders of
such Definitive Registered Notes in accordance with the provisions of the
Indenture.
If any fraction of any Additional Note would be issuable on
payment of interest by way of an issue of Additional Notes, the Issuer shall
instead (a) round down to the next whole Additional Note, in the case of a
fraction that is less than or equal to 0.49, or (b) round up to the next whole
Additional Note, in the case of a fraction that is equal to or greater than
0.50.
The Issuer may, at its option, notwithstanding anything herein
to the contrary, elect to pay any amount in respect of principal of the Notes in
pounds sterling rather than Euro, provided that in such case the amount payable
in sterling shall be 100.5% of the amount that would have been payable in Euro,
applying the Euro Equivalent on the date due for payment.
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Section 4.02 Maintenance of Office or Agency. The Issuer shall
maintain the offices and agencies specified in Section 2.03.
Section 4.03 Corporate Existence. The Issuer shall do or cause
to be done, at its own cost and expense, all things necessary to, and will cause
its Restricted Subsidiaries to, preserve and keep in full force and effect the
corporate or partnership existence and rights (charter and statutory), licenses
and/or franchises of the Issuer and each of the Issuer's Restricted
Subsidiaries; provided that none of the Issuer or any of the Issuer's Restricted
Subsidiaries shall be required to preserve any such existence, rights, licenses
or franchises if such existence, rights, licenses or franchises will be replaced
or if the Board of the Issuer shall reasonably determine that the preservation
thereof is no longer desirable in the conduct of the business of the Issuer or
such Restricted Subsidiary, as the case may be, and the loss thereof is not
adverse in any material respect to the Holders; provided further that any
Restricted Subsidiary of the Issuer may be merged into or wound up and
liquidated into the Issuer or any other Restricted Subsidiary of the Issuer; and
provided further that a merger or consolidation of the Issuer or any Restricted
Subsidiary effected in accordance with Article V shall not be deemed a breach of
this Section 4.03.
Section 4.04 Payment of Taxes and Other Claims. The Issuer
will, and will cause each of its Restricted Subsidiaries to, 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 its or its
respective Restricted Subsidiaries' income, profits or property and (b) all
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a Lien upon its property; provided that the Issuer shall not be required
to pay or discharge or cause any Restricted Subsidiary to pay or discharge any
such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate negotiations or proceedings and for
which disputed amounts any reserves required in accordance with GAAP have been
made, and provided further that the Holder shall be responsible for any United
Kingdom stamp duty reserve tax due on Notes deposited by that Holder into
Euroclear or any other clearing system or on Ordinary Shares or other securities
issued upon conversion of the Notes that are deposited into Euroclear or any
other clearing system.
Section 4.05 Maintenance of Properties; Insurance; Books and
Records; Compliance with Law.
(a) The Issuer will, and the Issuer will cause each of its
Restricted Subsidiaries to, at all times cause all material properties used or
useful in the conduct of its respective business to be maintained and kept in
good condition, repair and working order (reasonable wear and tear excepted) and
supplied with all necessary equipment, and will cause to be made all necessary
repairs, renewals, replacements, betterments and improvements thereto provided,
however, that nothing in this Section 4.05 shall prevent the Issuer from
discontinuing the operation or maintenance of any such properties if such
discontinuance is, in the reasonable judgment of the Board of the Issuer acting
in good faith, desirable in the conduct of its business or the business of any
of its Restricted Subsidiaries and not disadvantageous in any material respect
to the Holders; and provided, further, however, that the foregoing shall not
prohibit a sale, transfer or conveyance of the Issuer or a Restricted Subsidiary
or any of their properties or assets otherwise in compliance with the terms of
this Indenture.
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(b) The Issuer will, and the Issuer will cause each of its
Restricted Subsidiaries to, maintain insurance (which may include
self-insurance) in such amounts and covering such risks as are usually and
customarily carried with respect to similar facilities according to their
respective locations.
(c) The Issuer will, and the Issuer will cause each of its
Subsidiaries to, keep proper books of record and account, in which full and
correct entries shall be made of all financial transactions and the assets and
business of the Issuer and each Subsidiary of the Issuer, in accordance with
GAAP consistently applied to the Issuer and its Subsidiaries taken as a whole.
(d) The Issuer will, and the Issuer will cause each of its
Subsidiaries to comply with all statutes, laws, ordinances, or government rules
and regulations to which it is subject, non-compliance with which would
materially adversely affect the business, prospects, earnings, properties,
assets or financial condition of the Issuer and its Subsidiaries taken as a
whole.
Section 4.06 Compliance Certificates.
(a) The Issuer shall deliver to the Trustee within 120 days
after the end of each fiscal year, commencing with the fiscal year ending
December 31, 2002, an Officer's Certificate of the Issuer (the signatory to
which shall be either the principal executive officer, principal financial
officer or principal accounting officer of the Issuer) stating: (i) that a
review has been conducted of the activities of the Issuer under the supervision
of the signing Officers with a view to determining whether the Issuer has kept,
observed, performed and fulfilled its obligations under this Indenture; and (ii)
that, to the best knowledge of each Officer signing such certificate, the Issuer
has kept, observed, performed and fulfilled each and every covenant and
condition contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions, conditions and covenants hereof
(or, if a Default or Event of Default shall have occurred, specifying each such
Default or Event of Default and describing its status and what action the Issuer
is taking or proposes to take with respect thereto).
(b) The Issuer shall, so long as any of the Notes are
outstanding, deliver by registered or certified mail or facsimile transmission
to the Trustee, promptly after any Officer of the Issuer becomes aware of any
Default or Event of Default (but no later than five Business Days after having
become aware of its occurrence), an Officer's Certificate specifying such
Default or Event of Default and what action the Issuer is taking or proposes to
take with respect thereto.
(c) For purposes of notifying the Trustee whether a Default or
Event of Default has occurred pursuant to Sections 4.06(a) and (b), such shall
be determined without regard to any period of grace or requirement of notice
under this Indenture.
Section 4.07 Reports.
(a) The Issuer shall until the Maturity Date (or such earlier,
or later, date on which none of the Notes remain outstanding) use its best
efforts to timely file all reports required to be filed by it pursuant to
Sections 13 and 15 of the Exchange Act and to the extent such
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reports are no longer so filed to publish on its web sites, the information
required by clause (b) of this Section 4.07 no later than the applicable times
specified in such Section 4.07(b).
(b) The Issuer will furnish to the Trustee and Holders and,
while subject to the Exchange Act, file with the SEC:
(i) within 120 days after the end of each fiscal year, (A)
audited year-end consolidated financial statements of the Issuer
prepared in accordance with U.S. GAAP and (B) with respect to the
Issuer (on a consolidated basis), the information described in Item 303
of Regulation S-K under the Securities Act (e.g., Management's
Discussion and Analysis); and
(ii) within 60 days after the end of each of the first three
fiscal quarters of each fiscal year (A) unaudited quarterly
consolidated financial statements of the Issuer prepared in accordance
with U.S. GAAP and (B) with respect to the Issuer (on a consolidated
basis), the information described in Item 303 of Regulation S-K under
the Securities Act, with respect to such period.
(c) The Issuer shall deliver to the Trustee, at the time it
files them with the SEC, copies of any annual and periodic reports which the
Issuer is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. The Issuer shall also comply with any other provisions of TIA ss.
314(a)(4) not otherwise set forth herein, to the extent applicable, as if the
Issuer were subject to the provisions of TIA ss. 314(a)(4).
(d) Delivery of reports, information and documents pursuant to
Sections 4.07(b) and (c) to the Trustee is for informational purposes only, and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Issuer's compliance with any of its covenants hereunder,
as to which the Trustee is entitled to rely exclusively on Officer's
Certificates.
(e) So long as any of the Notes remain outstanding and during
any period in which the Issuer is neither subject to Section 13 or 15(d) of the
Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b) under the Exchange
Act, the Issuer will make available to any holder of the Notes or Book-Entry
Interests in connection with any sale thereof and any prospective purchaser of
such Notes or Book-Entry Interests from such holder, the information required by
Rule 144A(d)(4).
Section 4.08 Business Combinations. If following the first
public announcement by the Issuer of a proposed Business Combination the average
Closing Price of the Ordinary Shares for the fifteen (15) Trading Days beginning
on the first full Trading Day following such public announcement is less than or
equal to the Conversion Price then in effect, the Issuer shall mail a notice to
the Trustee, the Paying and Conversion Agent, the Registrar and each Holder
stating that a Business Combination has been proposed and a meeting of Holders
is being called pursuant to this Section 4.08 and Article XIII for the purpose
of voting (said vote, the "Mandatory Vote") on whether the Issuer should be
required, subject to the consummation of the Business Combination, to (i)
repurchase all of the Notes then outstanding pursuant to the Mandatory
Repurchase Offer (as hereinafter defined), or (ii) convert all of the Notes then
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outstanding into Ordinary Shares of the Issuer valuing all outstanding Notes at
101% of their principal amounts for these purposes (in which case the Conversion
Price shall be the Conversion Price in effect at the close of business on the
date of such meeting). Holders, voting in person or by proxy, representing a
majority in principal amount of the Notes voting at such meeting duly called in
accordance with Article XIII shall elect (the "Mandatory Repurchase Triggering
Event"), that, upon consummation of such Business Combination, the Issuer be
required either (i) to repurchase all of the Notes then outstanding, in cash
pursuant to the offer described below (the "Mandatory Repurchase Offer") at a
purchase price equal to 101% of the principal amount thereof, plus accrued and
unpaid interest thereon, if any, to the date of purchase (the "Mandatory
Repurchase Payment") or (ii) to convert all of the outstanding Notes into
Ordinary Shares valuing all outstanding Notes at 101% of their principal amounts
for these purposes (in which case the Conversion Price shall be the Conversion
Price in effect at the close of business on the date of such meeting). The
Issuer is not required to make a Mandatory Repurchase Offer following a
Mandatory Repurchase Triggering Event if a third party makes a Mandatory
Repurchase Offer that would be in compliance with the provisions described in
this Section 4.08 if it were made by the Issuer and such third-party purchases
for cash all Notes then outstanding.
If, with respect to any Business Combination to which this
Section 4.08 applies, a quorum cannot be had at the meeting of Holders duly
called in accordance with Article XIII for the purpose of holding a Mandatory
Vote, then a Mandatory Vote shall be deemed to have been taken in accordance
with this Section 4.08, which vote requires the Issuer to convert all the Notes
then outstanding on the consummation of such Business Combination into Ordinary
Shares in accordance with Section 6.12, provided that before any such Mandatory
Conversion upon the first absence of a quorum, a further ten (10) Business Days'
notice of said meeting shall be allowed.
The Issuer shall mail the notice of meeting of Holders to the
Trustee, the Paying and Conversion Agent, the Registrar and each Holder stating:
(i) the date, time and location of the meeting;
(ii) that pursuant to the result of the vote at the meeting,
upon consummation of such Business Combination, either (a) all of the
Notes outstanding will be repurchased for cash pursuant to the
Mandatory Repurchase Offer or (b) all of the Notes will be converted to
Ordinary Shares pursuant to a Mandatory Conversion;
(iii) the formula for the mandatory repurchase price and the
number of Ordinary Shares to be issued on the date of repurchase or
conversion (assuming all Notes then outstanding elect conversion into
Ordinary Shares) and the expected date of repurchase or conversion;
(iv) that, unless the Issuer defaults in making the Mandatory
Repurchase Payment or effecting the Mandatory Conversion, as the case
may be, all Notes then outstanding shall cease to accrue interest on
and after the date of the consummation of the Business Combination (the
"Consummation Date"); and
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(v) that each Holder will be required to surrender all Notes
held by such Holder, to, in the case of both Book-Entry Interests in a
Global Note and Definitive Registered Notes, the Paying and Conversion
Agent, in each case, at the address specified in the notice prior to
the close of business on the Business Day immediately preceding the
Consummation Date.
On the Consummation Date, the Issuer shall:
(vi) accept for payment or conversion all then outstanding
Notes or portions thereof tendered or delivered following the Mandatory
Vote;
(vii) deposit with the Paying and Conversion Agent money or
Ordinary Shares, as the case may be, sufficient to make the Mandatory
Repurchase Payment or effect Mandatory Conversion, as the case may be,
for all then outstanding Notes or portions thereof tendered or
delivered following the Mandatory Vote;
(viii) deliver, or cause to be delivered, to the Trustee, all
Notes or portions thereof tendered or delivered for payment or
conversion; and
(ix) deliver, or cause to be delivered, to the Trustee and the
Paying and Conversion Agent, an Officer's Certificate certifying that
all Notes or portions thereof tendered or delivered following the
Mandatory Vote have been accepted for payment or conversion by the
Issuer.
The Paying and Conversion Agent shall promptly mail to the
Holders of the Notes tendered and accepted for payment or conversion an amount
equal to the aggregate Mandatory Repurchase Payment, Ordinary Shares sufficient
in number to effect the Mandatory Conversion or securities or other
consideration to which such Holders are otherwise entitled to as a result of
such Business Combination, as the case may be.
In connection with any repurchase or conversion of Global
Notes pursuant to this Section 4.08, the Global Note or Notes surrendered for
repurchase or conversion shall be cancelled to reflect the retirement of such
Global Note or Notes resulting from such Mandatory Vote.
The Issuer will publicly confirm completion of the purchase or
conversion of the Notes on or as soon as practicable after the payment or
conversion.
The Issuer will comply with Rule 14e-1 under the Exchange Act
and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in the event that a Mandatory Repurchase
Triggering Event occurs and the Issuer is required to repurchase the Notes under
this Section 4.08.
Prior to the commencement of an offer under this Section 4.08,
the Issuer shall deliver to the Trustee an Officer's Certificate and an Opinion
of Counsel (to the extent matters of law are involved) stating that all
conditions precedent to such offer have been complied with.
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Notwithstanding anything to the contrary in this Section 4.08,
each Holder shall retain its right to convert some or all of its Notes into
Ordinary Shares by exercising its Conversion Rights up to the close of business
on the Business Day preceding the Consummation Date.
Section 4.09 Limitation on Indebtedness. The Issuer 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, other
than Permitted Indebtedness.
This Section 4.09 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 (including any Additional Notes issued in lieu
of cash interest as provided in this Indenture), 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 4.09; provided in each such case, that the amount thereof is included in
Consolidated Interest Expense of the Issuer as accrued, accreted or paid, as
applicable.
Notwithstanding any other provision in this Section 4.09, the
maximum amount that the Issuer or a Restricted Subsidiary may incur pursuant to
this Section 4.09 shall not be deemed to be exceeded with respect to any
outstanding Indebtedness due solely to the result of fluctuations in the
exchange rates of currencies.
For purposes of determining compliance with this Section 4.09,
in the event that an item of Indebtedness meets the criteria of more than one of
the types of Indebtedness described in the definition of Permitted Indebtedness,
the Issuer, in its sole discretion, shall classify, and from time to time may
reclassify, such item of Indebtedness and only be required to include the amount
and type of such Indebtedness in one of such clauses.
Section 4.10 Limitation on Restricted Payments.
(a) The Issuer 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 the Issuer or any
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);
(ii) purchase, redeem or otherwise acquire or retire for
value, directly or indirectly, any shares of Capital Stock of the
Issuer or any Capital Stock of any Affiliate of the Issuer (other than
Capital Stock required to be repurchased pursuant to the Scheme and
that involves total aggregate consideration of not more than 5.00
Pounds Sterling or Capital Stock of any Wholly-Owned Restricted
Subsidiary) or any options, warrants or other rights to acquire such
shares of Capital Stock;
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(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 Wholly-Owned Restricted Subsidiary); or
(iv) make any Investment (other than a Permitted Investment);
(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 Board of the Issuer, whose determination shall be conclusive
and evidenced by a Board Resolution), (1) no Default or Event of Default shall
have occurred and be continuing and (2) the aggregate amount of all Restricted
Payments declared or made after the date of this Indenture shall not exceed the
sum of:
(A) the amount of (x) the aggregate amount of the Consolidated
Operating Cash Flow (or, if the Consolidated Operating Cash Flow is a
negative, minus 100% of the amount) minus (y) 150% of Consolidated
Interest Expense, each accrued on a cumulative basis during the period
(taken as one accounting period) beginning on the first day of the
fiscal quarter immediately following the Issue Date and ending on the
last day of the last full fiscal quarter ending prior to the date of
the Restricted Payment;
(B) the aggregate Net Cash Proceeds received by the Issuer
after the Issue Date either (x) as capital contributions in the form of
common equity to the Issuer or (y) from the issuance or sale (other
than to any of its Subsidiaries) of Qualified Capital Stock of the
Issuer or any options, warrants or rights to purchase such Qualified
Capital Stock of the Issuer (except, in each case, to the extent such
proceeds are used to purchase, redeem or otherwise retire Capital Stock
or Subordinated Indebtedness as set forth below in clause (ii) or (iii)
of paragraph (b) below) (and excluding the Net Cash Proceeds from the
issuance of Qualified Capital Stock financed, directly or indirectly,
using funds borrowed from the Issuer or any Subsidiary until and to the
extent such borrowing is repaid);
(C) the aggregate Net Cash Proceeds received after the Issue
Date by the Issuer (other than from any of its Subsidiaries) upon the
exercise of any options, warrants or rights to purchase Qualified
Capital Stock of the Issuer (and excluding the Net Cash Proceeds from
the exercise of any options, warrants or rights to purchase Qualified
Capital Stock financed, directly or indirectly, using funds borrowed
from the Issuer or any Subsidiary until and to the extent such
borrowing is repaid); and
(D) the aggregate Net Cash Proceeds received after the Issue
Date by the Issuer from the conversion or exchange, if any, of debt
securities or Redeemable Capital Stock of the Issuer or its Restricted
Subsidiaries into or for Qualified Capital Stock of the Issuer plus, to
the extent such debt securities or Redeemable Capital Stock were issued
after the Issue Date, the aggregate of Net
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Cash Proceeds from their original issuance (and excluding the Net Cash
Proceeds from the conversion or exchange of debt securities or
Redeemable Capital Stock financed, directly or indirectly, using funds
borrowed from the Issuer or any Subsidiary until and to the extent such
borrowing is repaid).
(b) Notwithstanding paragraph (a) above, the Issuer and any
Restricted Subsidiary, as applicable, may take the following actions so long as
(with respect to clauses (ii), (iii), (iv), (v) and (vi) 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 the Issuer or
any Affiliate of the Issuer, 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 the Issuer;
(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 the Issuer;
(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 Mandatory
Repurchase Triggering Event in accordance with provisions similar to
Section 4.08; provided that prior to such purchase the Issuer makes the
Mandatory Repurchase Offer as provided in Section 4.08 with respect to
the Notes and purchases all Notes validly tendered in connection with
such Mandatory Repurchase Offer;
(v) the purchase, redemption, defeasance or other acquisition
or retirement for value by the Issuer 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 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 the Issuer as necessary to accomplish such
refinancing, plus, in either case, the amount of expenses of the Issuer
incurred in connection with such refinancing, (B) such new Subordinated
Indebtedness is
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subordinated to the Notes to 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 Restricted
Subsidiary if, as a result of such purchase, redemption, other
acquisition or retirement, the Issuer increases its percentage
ownership, directly or indirectly through their Restricted
Subsidiaries, of such Restricted Subsidiary.
The actions described in clauses (i) and (iv) of this
paragraph (b) shall be Restricted Payments that shall be permitted to be taken
or made in accordance with this paragraph (b) but shall reduce the amount that
would otherwise be available for Restricted Payments under paragraph (a) and the
actions described in clauses (ii), (iii), (v) and (vi) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be taken or made in
accordance with this paragraph (b) and shall not reduce the amount that would
otherwise be available for Restricted Payments under paragraph (a) of Section
4.10.
The application of the net cash proceeds of any issuance or
sale of Capital Stock under clause (ii) or (iii) of paragraph (b) above shall
not be "substantially concurrent" with the issuance or sale if the amount of
such proceeds has been included in any calculation of Total Incremental Equity.
Section 4.11 Limitation on Liens. The Issuer 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 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 4.12 [Intentionally Omitted]
Section 4.13 Additional Amounts. All payments made by the
Issuer under or with respect to any Notes 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 each of
the Kingdom of Spain, the United Kingdom, the United States of America or within
any other jurisdiction in which the Issuer is organized or engaged in business
for tax purposes, unless the Issuer is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof. If the Issuer is
required to withhold or deduct any amount for or on account of Taxes imposed by
a Taxing Authority within each of the Kingdom of Spain, the United Kingdom, the
United States of America or within any other jurisdiction in which the Issuer 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 will pay
such additional amounts ("Additional Amounts") as may be necessary so that the
net amount received
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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 (each an "Excluded
Holder") with respect to any Tax (A) which would not have been imposed, payable
or due: (i) but for the existence of any present or former connection between
the holder (or the beneficial owner of, or person ultimately entitled to obtain
an interest in, such Notes) and each of the Kingdom of Spain, the United
Kingdom, the United States of America or any other jurisdiction in which the
Issuer 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 each of the
Kingdom of Spain, the United Kingdom, the United States of America or any other
jurisdiction in which the Issuer is organized or engaged in business for tax
purposes; (iii) if the presentation of Definitive Registered 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; (v)
where such withholding or deduction is imposed on a payment to an individual and
is required to be made pursuant to any European Union Directive on the taxation
of earnings implementing the conclusions of the ECOFIN Council meeting of 26-27
November 2000 or any law implementing or complying with, or introduced in order
to conform to, such Directive; or (vi) by or on behalf of a Holder who would
have been able to avoid such withholding or deduction by, presenting the
relevant Note to another Paying and Conversion Agent in a Member State of the
European Union; or (B) in the nature of any estate, inheritance, gift, transfer,
sales or excise tax. The Issuer 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 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 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, if such receipts are not obtainable, other evidence of such
payments by the Issuer.
At least 5 days prior to each date on which any payment under
or with respect to the Notes is due and payable, if the Issuer shall be
obligated to pay Additional Amounts with respect to such payment, the Issuer
will deliver to the Trustee, the Paying and Conversion Agent and the Book-Entry
Depositary an Officers' 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 the Paying and Conversion Agent to pay such
Additional Amounts to the holders of Notes on the payment date.
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
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Amounts to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.01 Limitation on Merger, Sale or Consolidation. (a)
The Issuer shall not, directly or indirectly, consolidate with or merge with or
into another Person or sell, lease or otherwise dispose of all or substantially
all of its assets (on a consolidated basis), whether in a single transaction or
a series of related transactions, to another Person or group of affiliated
Persons (other than to its Wholly-Owned Restricted Subsidiaries), unless (i)
either (a) in the case of a merger or consolidation, the Issuer is the surviving
entity or (b) the resulting, surviving Person in such merger or consolidation
(if not the Issuer), or transferee entity (in the case of a sale, lease or other
disposition of assets) is a company organized under the laws of any member of
the European Union on the date hereof or any state of the United States and
expressly assumes by supplemental indenture all of the obligations of the Issuer
in connection with the Notes and the Indenture; (ii) no Default or Event of
Default shall exist or shall occur immediately before or after giving effect on
a pro forma basis to such transaction; and (iii) the Issuer has delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and, if a supplemental indenture is
required, such supplemental indenture comply with the Indenture and that all
conditions precedent in the Indenture relating to such transactions have been
satisfied. Notwithstanding the foregoing, none of the foregoing conditions shall
apply, so long as not later than the effective date of any such merger,
consolidation or other Business Combination, all of the Notes then outstanding
shall have been repurchased for cash or converted in accordance with Section
4.08, or converted into Ordinary Shares as contemplated by Section 3.02 or
Section 6.12.
(b) For purposes of clause (a) of this Section 5.01 and
Section 6.06, the sale, assignment, lease or other disposition of all or
substantially all of the properties and assets of one or more Subsidiaries of
the Issuer, which properties and assets, if held by the Issuer instead of such
Subsidiaries, would constitute all or substantially all of the properties and
assets of the Issuer on a consolidated basis, shall be deemed to be the transfer
of all or substantially all of the properties and assets of the Issuer, unless
such disposition is to the Issuer or a Wholly-Owned Restricted Subsidiary of the
Issuer.
Section 5.02 Successor Corporation Substituted. Upon any
permitted consolidation or merger or any permitted sale, lease or other
disposition of all or substantially all of the assets of the Issuer in
accordance with the foregoing, the successor corporation formed by such
consolidation or into which the Issuer is merged or to which such sale, lease or
other disposition is made, shall succeed to, and be substituted for, and may
exercise every right and power of, the Issuer under the Indenture with the same
effect as if such successor corporation had been named therein as the Issuer,
and when a successor corporation duly assumes all of the obligations of the
Issuer pursuant hereto and pursuant to the Notes, the predecessor shall be
released from such obligations.
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ARTICLE VI
CONVERSION OF NOTES
Section 6.01 Conversion Right. (a) Subject to and upon
compliance with the provisions of this Article VI, at the option of the Holder
thereof, any Note may be converted, in whole, or in part in multiples of Euro
1.00 principal amount, into fully paid and non-assessable Ordinary Shares
issuable upon conversion of the Notes (the "Conversion Right"), at the
Conversion Price in effect at the Conversion Date, until and including, but not
after the close of business on the Stated Maturity, provided that; if (i) such
Note or some portion thereof shall have been called for redemption or delivered
for repurchase prior to the Stated Maturity and (ii) no default shall have been
made in making due provision for the payment of the redemption price or the
Mandatory Repurchase Payment or Mandatory Conversion in accordance with the
terms of this Indenture, then, with respect to each Note or portion thereof as
has been so called for redemption or delivered for repurchase, such Note or
portion thereof may be so converted until and including, but not after, the
close of business on the Business Day prior to the Redemption Date or
Consummation Date, as applicable, for such Note, unless the Issuer subsequently
fails to pay the applicable redemption price or make the Mandatory Repurchase
Payment or Mandatory Conversion, as the case may be. For the avoidance of doubt,
Notes which have been called for redemption or delivered for repurchase and in
respect of which a Conversion Right has been exercised by the aforementioned
deadlines, shall be converted into Ordinary Shares as promptly as practical
following exercise of the Conversion Right, notwithstanding the waiting periods
referenced in Section 6.01(b).
(b) The Issuer shall be required to honor and accommodate
Conversion Notices (i) at least once every calendar month (or portion thereof,
in the case of that month which contains the Issue Date) (each, an "Initial
Conversion Period") in the one-year period commencing on the Issue Date,
provided that Conversion Notices delivered to the Issuer on or prior to the last
Business Day of each month and with respect to which the Conversion Notice Date
has occurred within such Initial Conversion Period) need be honored by the end
of the following month (with any Conversion Notices delivered thereafter or
delivered during such Initial Conversion Period but in respect of which the
Conversion Notice Date has occurred after the end of the relevant Initial
Conversion Period, to be honored by the end of the immediately following month),
and (ii) at least once every calendar quarter, on and after the first
anniversary of the Issue Date (each, a "Subsequent Conversion Period"), provided
that Conversion Notices delivered to the Issuer on or prior to the last Business
Day of that calendar quarter's end and with respect to which the Conversion
Notice Date has occurred on such Subsequent Conversion Period need be honored by
the end of the first month of the following quarter. Notwithstanding the
foregoing, the Issuer shall be required to honor and accommodate, as promptly as
practicable following receipt of one or more Conversion Notices in any given
Initial or Subsequent Conversion Period, received from one or more Holders,
relating to 10% or more of the aggregate Principal Amount of Initial Notes
originally issued, and in any event during the month following the Conversion
Notice Date relating to the last of the Conversion Notices so received. To
satisfy its obligations pursuant to this Section 6.01(b), the Issuer shall be
required to take all actions, including without limitation the preparation and
filing of one or more Spanish listing prospectuses, to give effect to Conversion
Notices received and to cause the listing of Ordinary Shares on the Nuevo
▇▇▇▇▇▇▇ (or if the Ordinary Shares shall not at the relevant time be quoted
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or listed thereon, on the principal securities exchange or interdealer quotation
system on which the Ordinary Shares are then listed or quoted).
Section 6.02 Conversion Procedures. (a) To exercise its
Conversion Right, a Holder of Definitive Registered Notes must:
(i) duly complete and manually sign a Conversion Notice in the
form of Exhibit D hereto (a "Conversion Notice") and deliver (or cause
to be delivered) such Conversion Notice to the Paying and Conversion
Agent;
(ii) surrender the Definitive Note to the Registrar for
cancellation;
(iii) if required, furnish appropriate endorsements and
transfer documents; and
(iv) if required but subject to Section 6.08, pay any taxes
and capital, stamp, issue and registration duties arising on the
exercise of such Conversion Right, and all taxes, if any, arising by
reference to any disposal or deemed disposal of any Ordinary Shares in
connection with the exercise of such Conversion Right.
(b) To exercise its Conversion Right, a holder of Book-Entry
Interests must:
(i) duly complete and manually sign a Conversion Notice and
deliver (or cause to be delivered) such Conversion Notice to the Issuer
and the Paying and Conversion Agent;
(ii) transfer such Book-Entry Interests to the Paying and
Conversion Agent by book-entry transfer for cancellation;
(iii) if required, furnish appropriate endorsements and
transfer documents; and
(iv) if required but subject to Section 6.08, pay any taxes
and capital, stamp, issue and registration duties arising on the
exercise of such Conversion Right, and all taxes, if any, arising by
reference to any disposal or deemed disposal of any Ordinary Shares in
connection with the exercise of such Conversion Right.
(c) Once delivered, a Conversion Notice will, unless the
Conversion Date has not occurred within the month following the Conversion
Notice Date (other than as a result of such Holder or holder not complying with
Section 6.02(a) or 6.02(b) or the Issuer otherwise consents in writing, be
irrevocable; provided, that if the Issuer is unable to effect the conversion as
provided in Section 6.01, a Holder can revoke the Conversion Notice and keep the
Notes.
(d) A Conversion Notice will be duly completed only if the
Holder fully completes the form and thereby makes any necessary representations
set forth in the Conversion Notice. The Company, the Trustee or the Paying and
Conversion Agent may reject any incomplete or incorrect notice, provided,
however, that no such rejection may impair any Holder's conversion rights
pursuant hereto. All costs and expenses incurred or caused by an incomplete or
incorrect notice shall be for the account of the Person submitting such
Conversion Notice.
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(e) The first Business Day following the date on which all of
the foregoing requirements set forth in clauses (a) (b) and (d) above have been
satisfied is the "Conversion Notice Date." Subject to Section 6.01(b), Ordinary
Shares to be issued upon conversion or exchange of Notes shall be issued and
registered within the month following the relevant Conversion Notice Date (the
date of such issuance being referred to herein as the "Conversion Date") in the
name(s) of the Person completing the Conversion Notice.
(f) Unless and until the Conversion Date has occurred with
respect to any Notes or Book-Entry Interests as to which the Holder has
exercised its Conversion Right, such holder shall retain all rights with respect
to such Notes or Book-Entry Interests and any such Notes or Book-Entry Interests
delivered to the Paying and Conversion Agent shall be held by the Paying and
Conversion Agent for the sole benefit of the holder thereof until the Conversion
Date.
(g) In connection with the foregoing, at least 20 Business
Days prior to the Conversion Date with respect to any Notes, the Paying and
Conversion Agent will deliver to the Issuer, the Trustee and the Transfer Agent
a copy of the applicable Conversion Notice and any documents required to be
delivered therewith. Each such delivery to the Transfer Agent shall indicate
whether the Ordinary Shares to be delivered pursuant thereto must bear a legend
pursuant to the terms hereof and, if so, the text of such legend.
(h) If the owner of a Book-Entry Interest shall exercise
Conversion Rights attaching to Notes represented by a Global Note in the manner
set out in this Indenture, upon transfer or surrender of such Book-Entry
Interest to the account of the Book-Entry Depositary maintained with the
Depositary, the Book-Entry Depositary shall promptly (i) deliver the relevant
Global Note (and any certificates and transfer instructions) to the Paying and
Conversion Agent for endorsement to reflect the reduction in principal amount of
such Global Note resulting from such Conversion, (ii) request that the Paying
and Conversion Agent deliver all certificates and instructions relating to such
Conversion to the Registrar, and (iii) instruct the Depositary to cancel the
Book-Entry Interest surrendered or transferred to the account of the Book-Entry
Depositary maintained with the Depositary.
(i) In respect of any exercise of Conversion Rights by a
holder of Book-Entry Interests, on the Conversion Date related thereto, the
Paying and Conversion Agent shall (i) endorse the relevant Global Notes with the
relevant decrease to reflect such conversion and (ii) thereafter, return such
Global Notes to the Book-Entry Depositary.
(j) The Paying and Conversion Agent will cause duly
surrendered Notes to be presented to the Issuer in exchange for the number of
newly issued Ordinary Shares issuable upon conversion of such Notes at the
Conversion Price in effect on the relevant Conversion Date.
(k) Upon conversion of any Definitive Registered Note which is
converted in part only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder thereof, at the
expense of the Company, a new Definitive Registered Note or Definitive
Registered Notes in authorized denominations in a principal amount equal to the
unconverted portion of such Definitive Registered Note.
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Section 6.03 No Fractional Interests. No fractions of shares
or scrip representing fractions of shares shall be issued upon conversion of
Notes. If more than one Note shall be surrendered for conversion at one time by
the same Holder, the number of full shares which shall be issuable upon
conversion thereof shall be computed on the basis of the aggregate principal
amount (or specified portion thereof) of the Notes so surrendered. If any
fraction of any Ordinary Share would, except for the foregoing provisions of
this Section 6.02, be issuable on the conversion of any Note or Notes, the
Issuer shall instead (a) round down to the next whole Ordinary Share, in the
case of a fraction that is less than or equal to 0.49, or (b) round up to the
next whole Ordinary Share, in the case of a fraction that is equal to or greater
than 0.50.
Section 6.04 Conversion Price. The conversion price per
Ordinary Share issuable upon conversion of the Notes (as such price may be
adjusted, herein called the "Conversion Price") shall initially be Euro 0.68
(which reflects a conversion rate of 1,471 Ordinary Shares per Euro 1,000 in
principal amount of Notes, equal to 1.471 Ordinary Shares per Euro 1.00 in
principal amount of Notes).
Section 6.05 Adjustment of Conversion Price. The Conversion
Price shall be subject to adjustment from time to time as follows:
(a) In case there shall be made or paid a dividend or made a
distribution in Ordinary Shares on any class of Capital Stock of the Issuer, the
Conversion Price in effect immediately following the record date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a fraction
of which the numerator shall be the number of Ordinary Shares outstanding at the
close of business on such record date and the denominator shall be the sum of
such number of shares and the total number of shares constituting such dividend
or other distribution on the outstanding shares of such class of Capital Stock.
An adjustment made pursuant to this subsection (a) shall become effective
immediately after such record date, except as provided in subsections (i) and
(j) below. For the purposes of this subsection (a), the number of Ordinary
Shares at any time outstanding shall not include shares held in the treasury of
the Issuer. The Issuer will not pay any dividend or make any distribution on
Ordinary Shares held in the treasury of the Issuer.
(b) In case the Issuer shall (i) subdivide or reclassify its
outstanding Ordinary Shares into a greater number of shares or (ii) combine or
reclassify its outstanding Ordinary Shares into a smaller number of shares, the
Conversion Price in effect immediately following the effectiveness of such
action shall be adjusted by multiplying such Conversion Price by a fraction of
which the numerator shall be the number of Ordinary Shares outstanding
immediately prior to such subdivision, combination or reclassification and the
denominator shall be the number of shares outstanding immediately after giving
effect to such subdivision, combination or reclassification. An adjustment made
pursuant to this subsection (b) shall become effective immediately, after the
effective date of a subdivision, combination or reclassification except as
provided in subsections (i) and (j) below
(c) Subject to Section 6.05(n), in case there shall be an
issuance or issuances of (x) Ordinary Shares, for cash or other consideration
(other than upon the exercise or conversion of any Shareholder Rights, the 2002
Share Options or other employee options issued after the
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record date of the Scheme), or (y) rights, options or warrants ("Shareholder
Rights") to all or substantially all holders of outstanding Ordinary Shares
entitling them to subscribe for or purchase Ordinary Shares, in each case, at a
price per share less than the then current market price per Ordinary Share (as
determined pursuant to subsection (g) below) on the date of issuance, in the
case of clause (x) or record date fixed for determination of the shareholders
entitled to receive such Shareholder Rights, in the case of clause (y), as the
case may be, the Conversion Price shall be adjusted to a price, computed to the
nearest Euro cent, so that the same shall equal the price determined by
multiplying:
(i) such Conversion Price by a fraction, of which
(ii) the numerator shall be (A) the number of Ordinary Shares
outstanding on such date of issuance or record date plus (B) the number
of shares which the aggregate offering price of the total number of
shares so issued and sold, or offered for subscription or purchase,
would purchase at such current market price (determined by multiplying
such total number of shares by the actual share price or exercise price
of such Shareholder Rights, as the case may be, and dividing the
product so obtained by such current market price), and of which
(iii) the denominator shall be (A) the number of Ordinary
Shares outstanding on such record date plus (B) the number of
additional Ordinary Shares which are so issued and sold, or offered for
subscription or purchase, as the case may be.
Such adjustment shall become effective immediately after the
issue and sale date or record date for the determination of holders entitled to
receive such Shareholder Rights, as the case may be, except as provided in
subsection (i), (j) and (l) below; provided, however, that if any such
Shareholder Rights issued by the Issuer as described in this subsection (c) are
only exercisable upon the occurrence of certain triggering events, then the
Conversion Price will not be adjusted as provided in this subsection (c) until
the earliest of such triggering event occurs. Upon the expiration or termination
of any Shareholder Rights without the exercise of such Shareholder Rights, the
Conversion Price then in effect shall be adjusted immediately to the Conversion
Price which would have been in effect at the time of such expiration or
termination had such Shareholder Rights, to the extent outstanding immediately
prior to such expiration or termination, never been issued.
(d) In case there shall be a distribution to all or
substantially all holders of Ordinary Shares, of any assets, evidences of
indebtedness, cash or securities (other than (w) dividends or distributions
exclusively in cash, (x) any dividend or distribution described in subsection
(a), (b) or (c) above or (y) any distribution of rights, warrants or options
subject to subsection (1) below or any distribution in connection with a
liquidation, dissolution or winding up of the Issuer) then in each such case the
Conversion Price shall be adjusted so that the same shall equal the price
determined by multiplying such Conversion Price by a fraction of which the
numerator shall be the then current market price per Ordinary Share outstanding
(determined as provided in subsection (g) below) on such record date less the
then fair market value (as reasonably determined in good faith by the Board of
the Issuer whose determination shall be conclusive and described in a Board
Resolution) of the portion of the evidences of indebtedness, securities, cash or
assets so distributed applicable to one Ordinary Share, and of which the
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denominator shall be such current market price per Ordinary Share (determined as
provided in subsection (g) below) on such record date. Such adjustment shall
become effective immediately after the record date for the determination of
shareholders entitled to receive such distribution, except as provided in
subsections (i), (j) and (l) below. If the Board of the Issuer determines the
fair market value of any distribution for purposes of this subsection (d) by
reference to the actual or when issued trading market for any securities
comprising such distribution, it must in doing so consider, among any other
facts or advice it deems relevant, the prices in such market over the same
period used in computing the current market price per share pursuant to
subsection (g) of this Section.
(e) In case there shall be made any distribution consisting
exclusively of cash (excluding any cash portion of distributions for which an
adjustment is required to be made in accordance with subsection (d) above), to
all or substantially all holders of Ordinary Shares in an aggregate amount that,
combined together with (i) all other such all-cash distributions made within the
12 months immediately preceding the record date fixed for determination of the
shareholders entitled to such distribution in respect of which no adjustment
pursuant to this subsection (e) or (f) has been made and (ii) any cash and the
fair market value (as reasonably determined by the Board of Directors whose
determination shall be conclusive and described in a resolution of the Board of
Directors), at the time of payment, of other consideration paid or payable in
respect of any tender offer by the Issuer or any of its Subsidiaries for
Ordinary Shares concluded within the 12 months immediately preceding the record
date fixed for determining the shareholders entitled to such distribution in
respect of which no adjustment pursuant to this subsection (e) or (f) has been
made, exceeds 5.0% of the Issuer's market capitalization (defined as being the
product of the then current market price of the Ordinary Shares (determined as
provided in subsection (g) below) times the number of Ordinary Shares then
outstanding) on the record date fixed for the determination of the shareholders
entitled to such distribution, in each such case the Conversion Price shall be
adjusted so that the same shall equal the price determined by multiplying such
Conversion Price by a fraction of which the numerator shall be the then current
market price per Ordinary Share (determined as provided in subsection (g) below)
on such record date less the amount of the cash and/or fair market value (as
reasonably determined in good faith by the Board of Directors of the Issuer
whose determination shall be conclusive and described in a Board Resolution) of
other consideration so distributed applicable to one Ordinary Share, and of
which the denominator shall be such current market price per Ordinary Share
outstanding (determined as provided in subsection (g) below) on such record
date. Such adjustment shall become effective immediately prior to the opening of
business on the later of (x) the date following the date fixed for the payment
of such distribution and (y) the date 20 days after the notice relating to such
distribution is given, except as provided in subsections (i) and (j) below,
after the record date for the determination of shareholders entitled to receive
such distribution.
(f) In case the Issuer or any Subsidiary of the Issuer shall
complete a tender offer for all or any portion of the Ordinary Shares (any such
tender offer being referred to as a "Self Tender") that involves an aggregate
consideration having a fair market value (as reasonably determined by the Board
of Directors whose determination shall be conclusive and described in a
resolution of the Board of Directors), as of the expiration of such Self Tender
(the "Expiration Time") that, together with (i) any cash and the fair market
value (as reasonably determined by the Board of Directors whose determination
shall be conclusive and described in a resolution of
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the Board of Directors) of any other consideration paid (at the time of payment)
in respect of any other Self Tender, as of the expiration of such other Self
Tender, expiring within the 12 months preceding the expiration of such Self
Tender and in respect of which no Conversion Price adjustment pursuant to this
subsection (f) has been made and (ii) the aggregate amount of any all-cash
distributions referred to in subsection (e) of this Section 6.05 to all holders
of Ordinary Shares within the 12 months preceding the expiration of such Self
Tender for which no Conversion Price adjustment pursuant to such subsection (e)
has been made, exceeds 5.0% of the product of the then current market price per
Ordinary Share (determined as provided in subsection (g) below) at the
Expiration Time times the number of Ordinary Shares outstanding (including any
tendered shares) at the Expiration Time, the Conversion Price in effect
immediately following such Expiration Time shall be reduced by multiplying such
Conversion Price by a fraction of which the numerator shall be (i) the product
of the then current market price per Ordinary Share (determined as provided in
subsection (g) below) at the Expiration Time times the number of Ordinary Shares
outstanding (including any tendered shares) at the Expiration Time minus (ii)
the fair market value (determined as aforesaid) of the aggregate consideration
payable to shareholders based on the acceptance (up to any maximum specified in
the terms of the Self Tender) of all shares validly tendered and not withdrawn
as of the Expiration Time (the shares deemed so accepted being referred to as
the "Purchased Shares") and the denominator shall be the product of (i) such
current market price per Ordinary Share at the Expiration Time times (ii) such
number of outstanding shares at the Expiration Time less the number of Purchased
Shares, such reduction to become effective immediately prior to the opening of
business on the day following the Expiration Time; provided that, if the number
of Purchased Shares or the aggregate consideration payable therefor have not
been finally determined by such opening of business, the adjustment required by
this subsection (f) shall, pending such final determination, be made based upon
the preliminary results of such Self Tender announced by the Issuer, and, after
such final determination shall have been made, the adjustment required by this
subsection (f) shall be made based upon the number of purchased shares and the
aggregate consideration payable therefor as so finally determined, effective
immediately prior to the opening of business on the day immediately following
the day such final determination shall have been made. For purposes of this
subsection (f), the fair market value of any consideration, paid otherwise than
in cash with respect to a Self Tender and paid upon the issuance or conversion
of Notes, shall be reasonably determined in good faith by the Board of Directors
of the Issuer and described in a Board Resolution.
(g) For the purpose of any computation under subsections (c),
(d), (e) and (f) above of this Section, the current market price per Ordinary
Share on the date of issuance or the date fixed for determination of the
shareholders entitled to receive the issuance or distribution requiring such
computation or the Expiration Time, as the case may be (the "Determination
Date") shall be deemed to be the average of the Closing Prices for the 15
consecutive Trading Days selected by the Issuer commencing not more than 20
Trading Days before, and ending not later than the Determination Date; provided,
however, that (i) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to subsection (a), (b), (c), (d), (e) or (f) above
occurs on or after the 20th Trading Day prior to the Determination Date and
prior to the "ex" date for the issuance or distribution requiring such
computation, the Closing Price for each Trading Day prior to the "ex" date for
such other event shall be adjusted by multiplying such Closing Price by the same
fraction by which the Conversion Price is so required to be adjusted as a result
of such other
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event, (ii) if the "ex" date for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the
Conversion Price pursuant to subsection (a), (b), (c), (d), (e) or (f) above
occurs on or after the "ex" date for the issuance or distribution requiring such
computation and on or prior to the Determination Date, the Closing Price for
each Trading Day on and after the "ex" date for such other event shall be
adjusted by multiplying such Closing Price by the reciprocal of the fraction by
which the Conversion Price is so required to be adjusted as a result of such
other event, and (iii) if the "ex" date for the issuance or distribution
requiring such computation is on or prior to the Determination Date, after
taking into account any adjustment required pursuant to clause (ii) of this
proviso, the Closing Price for each Trading Day on and after the "ex" date shall
be adjusted by adding thereto the amount of any cash and the fair market value
(as determined by the Board Directors in a manner consistent with any
determination of such value for the purposes of subsection (d) or (e) of this
Section, whose determination shall be conclusive and described in a Board
Resolution of the Issuer) of the evidences of indebtedness, shares of capital
stock or other securities or assets being distributed (in the distribution
requiring such computation) applicable to one Ordinary Share as of the close of
business on the day before such "ex" date. For the purpose of any computation
under subsection (f) of this Section, the current market price per Ordinary
Share at the Expiration Time for the self tender offer requiring such
computation shall be deemed to be the average of the Closing Prices for the 5
consecutive Trading Days selected by the Issuer commencing on or after the
latest (the "Commencement Date") of (i) the date 20 Trading Days before the
Expiration Time, (ii) the date of commencement of such self tender offer and
(iii) the date of the last amendment, if any, of such tender offer involving a
change in the maximum number of shares for which tenders are sought or a change
in the consideration offered, and ending not later than the Expiration Time of
such tender offer; provided, however, that if the "ex" date for any event (other
than the tender offer requiring such computation) that request an adjustment to
the Conversion Price pursuant to subsection (a), (b), (c), (d), (e) or (f) above
occurs on or after the Commencement Date and prior to the Expiration Time for
the self tender offer requiring such computation, the Closing Price for each
Trading Day prior to the "ex" date for such other event shall be adjusted by
multiplying such Closing Price by the same fraction by which the Conversion
Price is so required to be adjusted as a result of such other event. For
purposes of this subsection, the term "ex" date, (i) when used with respect to
any issuance or distribution, means the first date on which the Ordinary Shares
trades regular way on the relevant exchange or in the relevant market from which
the Closing Price was obtained without the right to receive such issuance or
distribution, (ii) when used with respect to any subdivision or combination of
Ordinary Shares, means the first date on which the Ordinary Shares trades
regular way on such exchange or in such market after the time at which such
subdivision or combination becomes effective, and (iii) when used with respect
to any tender offer means the first date on which the Ordinary Shares trades
regular way on such exchange or in such market after the Expiration Time of such
tender offer (as it may be amended or extended). Notwithstanding the foregoing,
if the fraction by which the Conversion Price is required to be adjusted as a
result of any event (other than the issuance, distribution or tender offer, as
the case may be, requiring such computation) cannot be determined for any
Trading Day during the period of 20 Trading Days contemplated by the first
sentence of this subsection and clause (i) of the second sentence of this
subsection, then the 5 consecutive Trading Days selected by the Issuer shall, in
the case of the first sentence of this subsection and clause (i) of the second
sentence of this subsection, commence not more than 25 Trading Days before such
Determination Date or Expiration Time,
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as the case may be, instead of 20 Trading Days before such Determination Date or
Expiration Time, as the case may be, as provided above.
(h) In addition to the foregoing adjustments in subsections
(a), (b), (c), (d), (e) and (f) above, the Issuer, from time to time and to the
extent permitted by law, may reduce the Conversion Price by any amount for at
least 20 Business Days, if the Board of the Issuer has made a determination,
which determination shall be conclusive, that such reduction would be in the
best interests of the Issuer. The Issuer shall give notice to the Trustee and
cause notice of such reduction to be mailed to each Holder of Notes at such
Holder's address as the same appears on the registry books of the Registrar, at
least 15 days prior to the date on which such reduction commences. The Issuer
may, at its option, also make such reductions in the Conversion Price in
addition to those set forth above, as the Board of the Issuer deems advisable to
avoid or diminish any income tax to holders of Ordinary Shares resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for United States federal income or other tax purposes.
(i) In any case in which this Section 6.05 shall require that
an adjustment be made immediately following a record date, the Issuer may elect
to defer the effectiveness of such adjustment (but in no event until a date
later than the effective time of the event giving rise to such adjustment), in
which case the Issuer shall, with respect to any Note converted after such
record date and on and before such adjustment shall have become effective (i)
defer issuing to the Holder of such Note the number of Ordinary Shares and other
capital stock of the Issuer (or other assets or securities) issuable upon such
conversion in excess of the number of Ordinary Shares and other Capital Stock of
the Issuer issuable thereupon only on the basis of the Conversion Price prior to
adjustment, and (ii) not later than five Business Days after such adjustment
shall have become effective, issue to such Holder the additional Ordinary Shares
and other Capital Stock of the Issuer issuable on such conversion.
Notwithstanding the foregoing, no adjustment of the Conversion Price shall be
made if the event giving rise to such adjustment does not occur.
(j) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% of
the Conversion Price; provided that any adjustments which by reason of this
subsection (j) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment, and provided further that an
immediate adjustment of the initial Conversion Price shall be required upon the
issuance of Additional Shares. All calculations under this Article VI shall be
made to the nearest Euro cent or to the nearest one-hundredth of a share, as the
case may be. In no event shall the Conversion Price be less than or equal to
zero or less than the par value of an Ordinary Share, in which event the
Conversion Price shall be increased to such par value, and if the Issuer's
Ordinary Shares are without par value, the Conversion Price in such event would
be reduced to one Euro cent per share.
(k) Whenever the Conversion Price is adjusted as herein
provided the Issuer shall promptly (i) file with the Trustee and the Paying and
Conversion Agent an Officers' Certificate setting forth the Conversion Price
after such adjustment and setting forth a brief statement of the facts requiring
such adjustment and showing in reasonable detail the facts upon which such
adjustment is based, which certificate shall be conclusive evidence of the
correctness of such
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adjustment, and (ii) mail or cause to be mailed a notice of such adjustment to
each Holder of Notes at such Holder's address as the same appears on the
registry books of the Registrar. Unless and until a Trust Officer has received
an Officers' Certificate setting forth an adjustment of the Conversion Price,
the Trustee may assume that no such adjustment has been made and that the last
Conversion Price for which the Trustee has received an Officers' Certificate is
the current Conversion Price. Neither the Trustee nor the Paying and Conversion
Agent shall be under any duty or responsibility with respect to any such
Officers' Certificate or the information and calculation contained therein,
except to exhibit the same to any Holder deserving inspection thereof, at its
office during normal business hours.
(l) In the event that the Issuer distributes rights, warrants
or options pro rata to holders of Ordinary Shares instead of making an
adjustment in the Conversion Price under Section 6.05(c) or (d), the Issuer may
make proper provision so that, so long as any such rights, warrants or options
have not expired or been redeemed by the Issuer, the Holder of any Note
surrendered for conversion will be entitled to receive upon such conversion, in
addition to the Ordinary Shares issuable upon such conversion (the "Conversion
Shares"), a number of rights, warrants or options to be determined as follows:
(i) if such conversion occurs on or prior to the date for the distribution to
the holders of rights, warrants or options of separate certificates evidencing
such rights, warrants or options (the "Distribution Date"), the same number of
rights, warrants or options to which a holder of a number of Ordinary Shares
equal to the number of Conversion Shares is entitled at the time of such
conversion in accordance with the terms and provisions of and applicable to the
rights, warrants or options, and (ii) if such conversion occurs after such
Distribution Date, the same number of rights, warrants or options to which a
holder of the number of Ordinary Shares into which the principal amount of such
Note so converted was convertible immediately prior to such Distribution Date
would have been entitled on such Distribution Date in accordance with the terms
and provisions of and applicable to the rights, warrants or options.
(m) For purposes of this Section, a tender offer shall not
include privately negotiated or open market purchases of Ordinary Shares unless
such purchases are subject to Regulation 14D or Regulation 14E promulgated under
the Exchange Act, or any successor provisions thereto.
(n) Notwithstanding anything in this Indenture to the
contrary, in case there shall be an issuance of Ordinary Shares upon the
exercise of any Notes, April Warrants, July Warrants or Existing Options (other
than 2002 Share Options), such issuance shall not result in an adjustment to the
Conversion Price or number of Ordinary Shares issuable upon conversion of the
Notes. Subject to the last sentence of this Section 6.05(n), upon the exercise
of any (x) other employee options issued after the record date of the Scheme
(other than Shareholder Rights) or (y) 2002 Share Option that has been repriced
and therefore no Additional Shares have been issued with respect to such 2002
Share Option pursuant to Clause 3.10 of the Scheme, the Conversion Price shall
be adjusted to a price, computed to the nearest Euro cent, so that the same
shall equal the price determined by multiplying such Conversion Price by a
fraction, of which the numerator shall be the number of Ordinary Shares
outstanding before such date of option exercise, and of which the denominator
shall be the sum of the number of Ordinary Shares outstanding before such date
of option exercise plus the number of Ordinary Shares issued upon such option
exercise. Subject to the last sentence of this Section 6.05(n), notwithstanding
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anything herein to the contrary, the time of any adjustment specified in Section
6.05(n)(y) shall be accelerated to occur immediately prior to any Mandatory
Conversion. In the case of the issue of Additional Shares pursuant to Clause
3.10 of the Scheme, the Conversion Price shall be adjusted immediately to a
price, computed to the nearest Euro cent, so that the same shall equal the price
determined by multiplying such Conversion Price by a fraction, of which the
numerator shall be the number of Ordinary Shares outstanding before the issue of
the Additional Shares, and of which the denominator shall be the sum of the
number of Ordinary Shares outstanding before the issue of Additional Shares plus
the number of Additional Shares issued plus the number of 2002 Share Options
that have not been cancelled or repriced. For the avoidance of doubt, if the
adjustment to the Conversion Price specified in the immediately preceding
sentence is made then there will not be an adjustment upon any exercise of any
2002 Share Options or immediately prior to any Mandatory Conversion on account
of any 2002 Share Options.
Section 6.06 No Continuation of Conversion Right Following
Business Combinations.
In connection with any Business Combination, all of the Notes
shall be repurchased for cash or converted into Ordinary Shares in accordance
with this Indenture and none of the Notes, and the Conversion Rights formerly
associated with the Notes, shall survive any Business Combination.
Section 6.07 Notice of Certain Events. In case:
(a) the Issuer shall declare a dividend (or any other
distribution) payable to the holders of Ordinary Shares (other than cash
dividends);
(b) the Issuer shall authorize the granting to all or
substantially all the holders of Ordinary Shares of rights, warrants or options
to subscribe for or purchase any shares of stock of any class or of any other
rights;
(c) the Issuer shall authorize any reclassification or change
of the Ordinary Shares (including a subdivision or combination of its
outstanding Ordinary Shares), or any Business Combination or consolidation or
merger to which the Issuer is a party and for which approval of any shareholders
of the Issuer is required, or the sale or conveyance of all or substantially all
the property or business of the Issuer;
(d) there shall be proposed any voluntary or involuntary
dissolution, liquidation or winding-up of the Issuer; or
(e) the Issuer or any of its Subsidiaries shall complete a
Self Tender, as defined in Section 6.05(f);
then, the Issuer shall cause to be filed at the office or agency maintained for
the purpose of conversion of the Notes as provided in Section 6.02 hereof, and
shall cause to be mailed to each Holder of Notes, at such Holder's address as it
shall appear on the registry books of the Registrar, at least 10 days before the
date hereinafter specified (or the earlier of the dates hereinafter specified,
in the event that more than one date is specified), a notice stating the date on
which (1) a record is expected to be taken for the purpose of such dividend,
distribution,
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rights, warrants or options or a Self Tender, or if a record is not to be taken,
the date as of which the holders of Ordinary Shares of record to be entitled to
such dividend, distribution, rights, warrants or options or to participate in
such Self Tender are to be determined, or (2) such reclassification, change,
consolidation, merger, sale, conveyance, dissolution, liquidation or winding-up
is expected to become effective and the date, if any is to be fixed, as of which
it is expected that holders of Ordinary Shares of record shall be entitled to
exchange their Ordinary Shares for securities or other property deliverable upon
such reclassification, change, consolidation, merger, sale, conveyance,
dissolution, liquidation or winding-up.
Section 6.08 Taxes on Conversion. The Issuer will pay any and
all documentary, stamp or similar taxes payable to each of the United Kingdom,
Spain and the United States of America, or any political subdivision or taxing
authority of or in each of the United Kingdom, Spain and the United States of
America, in respect of the issue or delivery of Ordinary Shares on conversion of
Notes pursuant thereto; provided, however, that the Issuer shall not be required
to pay any tax which may be payable in respect of any transfer involved in the
issue or delivery of Ordinary Shares in a name other than that of the Holder of
the Notes to be converted and no such issue or delivery shall be made unless and
until the person requesting such issue or delivery has paid to the Issuer the
amount of any such tax or has established, to the satisfaction of the Issuer,
that such tax has been paid, and provided further that the Holder shall be
responsible for any United Kingdom stamp duty reserve tax due on Notes (or
Ordinary Shares or the securities issuance upon conversion of the Notes)
deposited by that Holder into Euroclear or other clearing system. The Issuer
extends no protection with respect to any other taxes imposed in connection with
conversion of Notes.
Section 6.09 Issuer to Provide Stock. The Issuer shall
reserve, free from preemptive rights, out of its authorized but unissued shares,
sufficient shares to provide for the conversion of the Notes from time to time
as such Notes are presented for conversion, provided that nothing contained in
this Section 6.09 shall be construed to preclude the Issuer from satisfying its
obligations in respect of the conversion of Notes by delivery of repurchased
Ordinary Shares which are held in the treasury of the Issuer.
If any Ordinary Shares to be reserved for the purpose of
conversion of Notes hereunder require registration with or approval of any
governmental authority under any Federal or state law before such shares may be
validly issued or delivered upon conversion, then the Issuer covenants that it
will in good faith and as expeditiously as possible use its reasonable efforts
to secure such registration or approval, as the case may be; provided, however,
that nothing in this Section 6.09 shall be deemed to limit in any way the
obligations of the Issuer provided in this Article VI.
The Issuer covenants that all Ordinary Shares which may be
issued upon conversion of Notes will upon issue be fully paid and non-assessable
by the Issuer and free of preemptive rights.
Section 6.10 Disclaimer of Responsibility for Certain Matters.
Neither the Trustee, the Paying and Conversion Agent nor any of their agents
shall at any time be under any duty or responsibility to any Holder of Notes to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the Officers' Certificate
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referred to in Section 6.05 hereof, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, or herein
or in any supplemental indenture provided to be employed, in making the same.
Neither the Trustee, the Paying and Conversion Agent nor any of their agents
shall be accountable with respect to the validity or value (or the kind or
amount) of any Ordinary Shares, or of any securities or property (including
cash), which may at any time be issued or delivered upon the conversion of any
Note; and neither the Trustee nor the Paying and Conversion Agent makes any
representation with respect thereto. Neither the Trustee, the Paying and
Conversion Agent nor any of their agents shall be responsible for any failure of
the Issuer to issue, register the transfer of under any securities laws or
otherwise or deliver any Ordinary Shares or stock certificates or other
securities or property (including cash) upon the surrender of any Note for the
purpose of conversion or, subject to Article VIII hereof, to comply with any of
the covenants of the Issuer contained in this Article VI.
Section 6.11 Return of Funds Deposited for Repurchase of
Converted Notes. Any funds which at any time shall have been deposited by the
Issuer or on its behalf with the Trustee or any other Paying and Conversion
Agent for the purpose of paying the Principal of and interest on any of the
Notes and which shall not be required for such purposes because of the
conversion of such Notes, as provided in this Article VI, shall promptly after
such conversion be repaid to the Issuer by the Trustee or such other Paying and
Conversion Agent in accordance with the Issuer's written instructions.
Section 6.12 Mandatory Conversion. Upon the occurrence of a
Mandatory Conversion Triggering Event all Notes then outstanding shall be valued
at 100% of their Principal Amount plus accrued but unpaid interest and be
cancelled and convert into the right to receive Ordinary Shares based on the
Conversion Price specified in the definition of "Mandatory Conversion Triggering
Event."
Section 6.13 Interest on Conversion. Upon conversion, and
subject to Sections 3.01 and 4.08, each Holder shall be entitled to receive
Ordinary Shares in respect of the sum of (x) the Principal Amount of all Initial
Notes so converted by such Holder and (y) the Principal Amount of all Additional
Notes so converted by such Holder, plus (z) all interest accrued but unpaid
since the Interest Payment Date next preceding the date of conversion.
ARTICLE VII
DEFAULT AND REMEDIES
Section 7.01 Events of Default. (a) Each of the following
events is an "Event of Default":
(i) the Issuer defaults in the payment of Principal or of
premium of any Note when the same becomes due and payable, at maturity
or upon redemption or mandatory repurchase or acceleration or
otherwise;
(ii) the Issuer defaults in the payment of interest on any
Note when the same becomes due and payable, and such default continues
for a period of 30 days;
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(iii) [Intentionally not used]
(iv) the Issuer fails to redeem or repurchase Notes, as the
case may be, for cash following a redemption notice (in respect of
Notes subject to a cash redemption election) or Mandatory Repurchase
Offer;
(v) the Issuer or any Restricted Subsidiary defaults in the
performance of or breaches any other covenant or agreement in the
Indenture or under the Notes and the default or breach continues for a
period of 30 consecutive days after written notice by the Trustee or
the Holders of a majority of Notes present and voting at a meeting held
in accordance with the Indenture;
(vi) there occurs with respect to any issue or issues of
Indebtedness of the Issuer or any Restricted Subsidiary having an
outstanding principal amount of Euro 5.0 million or more in the
aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, the following:
(A) an event of default that has caused the holders
thereof to declare such Indebtedness to be due and payable
prior to its Stated Maturity and such Indebtedness has not
been discharged in full or such acceleration has not been
rescinded or annulled within 30 days following such
acceleration; and/or
(B) the failure to make a principal payment at the
final (but not any interim) Stated Maturity and such defaulted
payment shall not have been made, waived or extended within 30
days of such payment default;
(vii) any final judgment or order for the payment of money in
excess of Euro 5.0 million in the aggregate for all such final
judgments or orders against the Issuer or any Restricted Subsidiary and
shall not be paid or discharged, and there shall be any period of 60
consecutive days following entry of the final judgment or order that
causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to
exceed Euro 5.0 million during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect;
(viii)
(A) a court of competent jurisdiction enters a
Bankruptcy Order under any Bankruptcy Law that:
(1) is for relief against the Issuer or any
Restricted Subsidiary in an involuntary case or
proceeding;
(2) appoints a Custodian of the Issuer or any
Restricted Subsidiary for all or substantially all of
its properties; or
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(3) orders the liquidation of the Issuer or any
Restricted Subsidiary, and, in each case, such order or
decree remains unstayed and in effect for 60 days;
(B) The holder of any Indebtedness with a principal
amount of Euro 5.0 million or more appoints a receiver or
similar official with respect to all or substantially all of
the assets of the Issuer or any Restricted Subsidiary and such
receiver is not removed for 120 days; and
(ix) the Issuer or any Restricted Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of a Bankruptcy Order for
relief against it in an involuntary case or proceeding;
(C) consents to the appointment of a Custodian of it or
for all or substantially all of its property;
(D) makes a general assignment for the benefit of its
creditors or files a proposal or scheme of arrangement
involving the rescheduling or composition of its indebtedness;
(E) consents to the filing against it of a petition in
bankruptcy; or
(F) shall generally not pay its debts when such debts
become due or shall admit in writing its inability to pay its
debts generally.
(b) For purposes of this Article VII and Article XI, the term
"Custodian" is defined to mean any custodian, receiver, interim receiver,
receiver and manager, trustee, assignee, liquidator, sequestrator or similar
official charged with maintaining possession or control over property for one or
more creditors, whether under any Bankruptcy Law or otherwise. The term
"Bankruptcy Order" is defined to mean any court order made in a proceeding
pursuant to or within the meaning of any Bankruptcy Law, containing an
adjudication of bankruptcy or insolvency, or providing for liquidation, winding
up, dissolution or reorganization, or appointing a Custodian of a debtor or of
all or any substantial part of a debtor's property, or providing for the
staying, arrangement, adjustment or composition of indebtedness or other relief
of a debtor.
Section 7.02 Acceleration. If an Event of Default (other than
an Event of Default specified in Section 7.01(a)(viii) or (ix) that occurs with
respect to the Issuer) occurs and is continuing under this Indenture, the
Trustee or the Holders representing a majority in principal amount of the Notes
then outstanding present at a meeting convened and held in accordance with
Article XIII, by written notice to the Issuer (and to the Trustee if such notice
is given by the Holders (the "Acceleration Notice")), may, and the Trustee at
the request of such Holders shall, declare the Notes to be immediately due and
payable at 100% of the outstanding Principal thereof, plus accrued and unpaid
interest thereon to the date of such declaration. Upon a
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declaration of acceleration, such Principal and accrued and unpaid interest
shall be immediately due and payable. In the event of a declaration of
acceleration because an Event of Default set forth in Section 7.01(a)(vi) has
occurred and is continuing, such declaration of acceleration shall be
automatically rescinded and annulled if the event of default triggering such
Event of Default pursuant to Section 7.01(a)(vi) shall be remedied or cured by
the Issuer, and/or the relevant Restricted Subsidiaries or waived by the holders
of the relevant Indebtedness within 60 days after the declaration of
acceleration with respect thereto. If an Event of Default specified in Section
7.01(a)(viii) or (ix) above occurs with respect to the Issuer, the Notes then
outstanding shall ipso facto become and be immediately due and payable at 100%
of the outstanding Principal thereof plus accrued and unpaid interest to the
date of such Event of Default, in each case without any declaration or other act
on the part of the Trustee or any Holder.
The Holders representing a majority in Principal Amount of the
Notes voting at a meeting in accordance with Article XIII, by written notice to
the Issuer and to the Trustee may waive all past Defaults, Events of Default and
their consequences and rescind and annul a declaration of acceleration and its
consequences if (a) the Issuer has paid or deposited with the Trustee a sum
sufficient to pay (i) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, (ii) all overdue interest on all Notes, (iii) the
principal of any Notes that have become due otherwise than by such declaration
or occurrence of acceleration and interest thereon at the rate prescribed
therefor by such Notes, and (iv) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate prescribed therefor by such
Notes, (b) all existing Events of Default, other than the non-payment of the
principal of, and accrued interest on the Notes that have become due solely by
such declaration or occurrence of acceleration, have been cured or waived and
(c) the rescission would not conflict with any judgment, decree or order of a
court of competent jurisdiction.
Section 7.03 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue, in its own name or as trustee of an
express trust, any available remedy by proceeding at law or in equity to collect
the payment of Principal of or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
Section 7.04 Waiver of Past Default. Subject to Sections 7.02,
7.07 and 10.02, the Holders representing a majority in principal amount of the
Notes present and voting at a meeting as provided in Article XIII, by notice to
the Trustee, may waive an existing Default or Event of Default and its
consequences, except a Default in the payment of principal of, or interest on
any Note as specified in Section 7.01(a)(i) or (ii) in respect of a covenant or
provision of this Indenture which cannot pursuant to Section 10.02 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 thereto.
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Section 7.05 Control by Majority. Subject to the provisions of
Section 8.02(f), the Holders representing a majority in principal amount of the
Notes present and voting at a meeting as provided in Article XIII, may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it; provided,
however, that the Trustee may refuse to follow any direction that (a) conflicts
with law or this Indenture, (b) may involve the Trustee in personal liability,
or (c) that the Trustee determines in good faith may be unduly prejudicial to
the rights of Holders of Notes not joining in the giving of such direction; and
provided further that the Trustee may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of Notes.
Section 7.06 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Notes unless:
(a) the Holder gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least a majority in aggregate Principal
Amount of Notes present and voting at a meeting as provided in Article XIII,
make a written request to the Trustee to pursue the remedy;
(c) if requested by the Trustee, such Holder or Holders offer
the Trustee indemnity satisfactory to the Trustee against any costs, liability
or expense (including the reasonable fees and expenses of its counsel);
(d) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(e) during such 60-day period the Holders of a majority in
aggregate principal amount of the Notes present and voting at a meeting as
provided in Article XIII, do not give the Trustee a direction inconsistent with
the request.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over such
Noteholder.
Section 7.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of Principal of, and interest on, a Note or to bring suit for
the enforcement of any such payment, on or after the due date for such payment
expressed in the Notes, is absolute and unconditional and shall not be impaired
or affected without the consent of such Holder.
Section 7.08 Collection Suit by Trustee. If an Event of
Default specified in Section 7.01(a)(i) or (ii) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Issuer or any other obligor on the Notes for the whole amount of
Principal and accrued interest then due and payable together with interest on
overdue Principal and, to the extent that payment of such interest is lawful,
interest on overdue installments of interest, in each case at a rate equal to
that borne by the Notes, which interest shall be compounded semiannually each
Interest Payment Date, and such further amount
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as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 7.09 Trustee May File Proofs of Claim. The Trustee
shall be entitled and empowered to file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 8.07) and the Noteholders allowed in any
judicial proceedings relative to the Issuer or the Subsidiaries of the Issuer
(or any other obligor on the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies, securities or other
property payable or deliverable upon conversion or exchange of the Notes or upon
any such claims and to distribute the same, and any Custodian in any such
judicial proceeding is hereby authorized by each Noteholder 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 Noteholders, to pay to the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agent and counsel, and any other amounts due the
Trustee under Section 8.07. Nothing herein contained shall be deemed to
authorize the Trustee to authorize or consent to, or accept or adopt on behalf
of any Noteholder, 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 Noteholder in any
such proceeding.
Section 7.10 Priorities. If the Trustee collects any money
pursuant to this Article VII, it shall pay out such money in the following
order:
First: to the Trustee for amounts due under Section 8.07;
Second: to Holders for amounts then due and unpaid for
Principal of, and interest 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 interest, respectively; and
Third: to the Issuer or any other obligors of the Notes, as
their interests may appear, or as a court of competent jurisdiction may
direct.
The Trustee, upon prior written notice to the Issuer, may fix
a record date and payment date for any payment to Noteholders pursuant to this
Section 7.10.
Section 7.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 7.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 7.07, or a suit
by Holders constituting a quorum and voting at a meeting as provided in Article
XIII.
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Section 7.12 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 of the Issuer, the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 7.13 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Notes in Section 2.08, 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 7.14 Delay or Omission Not Waiver. No delay or
omission of the Trustee or of any Holder 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 VII 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.
ARTICLE VIII
TRUSTEE
Section 8.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture; provided, however, that in the case of any such
certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the
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Trustee shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section 8.01;
(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it from the Holders of a majority in principal
amount of the Notes at the time outstanding; and
(iv) 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.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 8.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or unless it is provided adequate funds to enable it to do so and it
receives indemnity satisfactory to it in its sole discretion against any loss,
liability, fee or expense.
Section 8.02 Rights of Trustee. Except as provided in Section
8.0l:
(a) The Trustee may conclusively rely upon, and shall be fully
protected in acting or refraining from acting upon, any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note, other
evidence of indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine, during normal
business hours and upon reasonable advance notice, the books, records and
premises of the Issuer, personally or by agent or attorney.
(b) Before the Trustee acts or refrains from acting with
respect to any matter contemplated by this Indenture, it may require an
Officer's Certificate or an Opinion of Counsel, which shall conform to the
provisions of Section 14.05. The Trustee shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or opinion.
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(c) The Trustee may act through attorneys and agents and shall
not be responsible for the misconduct or negligence of any attorney or agent
(other than employees of the Trustee, subject to the provisions of this Article
VIII) appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it reasonably believes to be authorized or
within its rights or powers; provided that the Trustee's conduct does not
constitute negligence or bad faith.
(e) The Trustee may consult with counsel of its selection and
the advice or opinion of such counsel as to matters of law shall be full and
complete authorization and protection in respect of any action taken, omitted or
suffered by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.
(f) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity reasonably satisfactory
to it against the costs, expenses and liabilities which might be incurred by it
in compliance with such request or direction.
(g) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, extend to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent of the Trustee employed to act
hereunder.
(h) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
Book-Entry Interests, other than to require delivery of such certificates and
other documentation or evidence as are expressly required by, and to do so if
and when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 8.03 Individual Rights of Trustee. The Trustee in its
individual capacity or any other capacity may become the owner or pledgee of
Notes and may otherwise deal with the Issuer or the Issuer's Subsidiaries and
Affiliates with the same rights it would have if it were not Trustee or any
other Agent. Any Agent may do the same with like rights. However, the Trustee
shall resign if it acquires and does not eliminate a conflicting interest as
defined in TIA Sections 310(b) and 311 as if such sections were applicable to
it.
Section 8.04 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the Notes; it
shall not be accountable for the Issuer's use of the proceeds from the issuance
of the Notes; and it shall not be responsible for any statement of the Issuer in
this Indenture, including the recitals herein, which are statements of the
Issuer only and are not statements of the Trustee, any offering or disclosure
document or the Notes other than the Trustee's certificate of authentication.
Section 8.05 Notice of Defaults. If any Default or any Event
of Default with respect to the Notes occurs and is continuing and is actually
known by a Responsible Officer of the Trustee, the Trustee shall give notice of
the Default or Event of Default within 45 days after
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the occurrence thereof to the Holders of the Notes, unless such Default shall
have been cured or waived before the mailing of such notice. Except in the case
of a Default or an Event of Default in the payment of principal or interest on
any Note, the Trustee may withhold the notice to the Noteholders if a committee
of its Responsible Officers in good faith determines that withholding the notice
is in the interest of Noteholders.
Subject to the provisions of Sections 8.01 and 8.02, the
Trustee shall not be deemed to have knowledge of any Default, Event of Default
or Mandatory Conversion Triggering Event, and shall have no duties, obligations
or liability in connection therewith, except (i) a default described in Section
7.01 (a)(i) or (ii) if the Trustee is the Paying and Conversion Agent, or (ii)
any Default, Event of Default or Mandatory Conversion Triggering Event of which
the Trustee shall have received written notification at its Corporate Trust
Office or a Responsible Officer charged with the administration of this
Indenture shall have obtained actual knowledge, and such notification shall not
be deemed to include receipt of information obtained in any report or other
reports and documents furnished under Section 4.07 of this Indenture which
reports and documents the Trustee shall have no duty to examine.
Section 8.06 Reports by Trustee to Holders. Within 60 days
after December 31 of each year commencing with 2002 and for as long as there are
Notes outstanding hereunder, the Trustee shall mail to each Holder of Definitive
Registered Notes, if any, and to the Holder of the Global Note, the Trustee's
brief report dated as of such date that complies with TIA ss. 313(a), as if the
Trustee were subject to such section of the TIA, and only if such report would
be required by TIA ss. 313(a). The Trustee also shall comply with TIA ss. 313(b)
and TIA ss. 313(c) and (d). A copy of such report at the time of its mailing to
Noteholders shall be filed by the Trustee with the SEC, if required, and each
stock exchange, if any, on which the Notes are listed.
The Issuer shall promptly notify the Trustee if the Notes
become listed on any stock exchange, and the Trustee shall comply with TIA
ss.313(d) if required.
Section 8.07 Compensation and Indemnity. The Issuer shall pay
to the Trustee such compensation as shall be agreed upon in writing for its
services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Issuer shall reimburse the
Trustee upon request for all reasonable out-of-pocket disbursements, expenses
and advances (including reasonable fees and expenses of its agents and counsel)
incurred or made by it in addition to the compensation for its services. Such
expenses shall include the reasonable compensation, out-of-pocket disbursements
and expenses of the Trustee's agents and counsel.
The Issuer shall indemnify the Trustee and its directors,
officers, employees and agents, or any predecessor Trustee for, and hold it
harmless against, any loss or liability, damage, claim, advance or expense,
including taxes(other than taxes based upon, measured or determined by the
income of the Trustee) incurred by it (including the reasonable compensation and
expenses of its agents and counsel) without negligence or bad faith on its part
in connection with the acceptance or administration of this Indenture and its
duties under this Indenture and the Note in its capacity as Trustee, Paying and
Conversion Agent or Registrar, including the reasonable costs and expenses of
investigating or defending itself against any claim or liability
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and of complying with any process served upon it or any of its officers in
connection with the exercise or performance of any of its powers or duties under
this Indenture and the Notes. The Trustee shall notify the Issuer promptly of
any claim asserted against the Trustee for which it may seek indemnity. The
Issuer need not reimburse any expense or indemnify against any loss or liability
incurred by the Trustee, the Paying and Conversion Agent or the Registrar
through the Trustee's, the Paying and Conversion Agent's or the Registrar's, as
the came may be, own willful misconduct, negligence or bad faith.
To secure the Issuer's payment obligations in this Section
8.07, the Trustee shall have a lien prior to the Notes on all money or property
held or collected by it, in its capacity as Trustee, Paying and Conversion Agent
or Registrar, except money or property held in trust to pay principal of,
Premium, if any, and interest on particular Notes. Such lien shall survive the
termination of this Indenture.
Subject to any other rights available to the Trustee under any
applicable Bankruptcy Law, when the Trustee incurs expenses or renders services
after an Event of Default specified in Section 7.01(a)(viii) or (ix) occurs, the
parties hereto and the Noteholders, by acceptance of the Notes, hereby agree
that the expenses and the compensation for the services are intended to
constitute expenses of administration under any applicable Bankruptcy Law.
The Trustee's rights and the Issuer's obligations under this
Section 8.07 shall survive the resignation or removal of the Trustee, the
redemption of the Notes and the termination of this Indenture.
Section 8.08 Replacement of Trustee. A resignation or removal
of the Trustee and appointment of a successor Trustee shall become effective
only upon the successor Trustee's acceptance of appointment as provided in this
Section 8.08.
The Trustee may resign at any time by so notifying the Issuer
in writing. The Holders of a majority in principal amount of the outstanding
Notes may remove the Trustee by so notifying the Trustee in writing and may
appoint a successor Trustee with the Issuer's consent, which consent shall not
be unreasonably withheld. The Issuer by Board Resolution may remove the Trustee
if:
(a) the Trustee fails to comply with Section 8.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the
Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason (the Trustee in such event being
referred to herein as the retiring Trustee), the Issuer shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Holders of a majority in principal amount of the Notes may appoint a successor
Trustee to replace the successor Trustee appointed by the Issuer.
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A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Issuer. Immediately after such
delivery, the retiring Trustee shall transfer all property held by it as Trustee
to the successor Trustee (subject to the lien provided in Section 8.07), the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. A successor Trustee shall mail notice of its succession to
each Noteholder.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Issuer or the Holders of a majority in principal amount of the outstanding Notes
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee fails to comply with Section 8.10, any
Noteholder who satisfies the requirements of TIA Section 310(b) may petition any
court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
The retiring Trustee shall not be liable for any of the acts
or omissions of any successor Trustee appointed hereunder.
Notwithstanding replacement of the Trustee pursuant to this
Section 8.08, the obligations of the Issuer under Section 8.07 shall continue
for the benefit of the retiring Trustee.
Section 8.09 Successor Trustee by Merger, Etc. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation or national banking
association, the resulting, surviving or transferee corporation or national
banking association without any further act shall be the successor Trustee
provided such corporation shall be otherwise qualified and eligible under this
Article VIII.
Section 8.10 Eligibility; Disqualification. The Trustee, or
any successor Trustee shall have a combined capital and surplus of at least U.S.
$250 million as set forth in its most recent published annual report of
condition. The Trustee may not be an obligor upon the Notes or an Affiliate of
any such obligor.
Section 8.11 Money Held in Trust. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may agree
with the Issuer. Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law and except for money held in
trust under Article IX of this Indenture.
Section 8.12 Withholding Taxes. The Paying and Conversion
Agent, as agent for the Issuer, shall exclude and withhold from each payment of
principal and interest and other amounts due hereunder or under the Notes any
and all withholding taxes applicable thereto as required by U.S. federal, New
York State, UK or Spanish law, or otherwise as directed in an Officer's
Certificate of the Issuer. The Trustee agrees to act as such withholding agent
and, in connection therewith, whenever any present or future taxes or similar
charges are required to be withheld with respect to any amounts payable in
respect of the Notes, to withhold such amounts and timely pay the same to the
appropriate authority in the name of and on behalf of the Holders of the Notes,
that it will file any necessary withholding tax returns or statements when due,
and that, as promptly as possible after the payment thereof, it will deliver to
each Holder of a Note
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appropriate documentation showing the payment thereof, together with such
additional documentary evidence as such Holders may reasonably request from time
to time.
Section 8.13 Co-Trustees. It is the intention of the Trustee,
that this Indenture shall not cause a violation of any law of any jurisdiction
denying or restricting the right of banking corporations or associations to
transact business as trustee in such jurisdiction. In furtherance of the
foregoing, the Trustee may appoint an additional individual or institution that
meets the requirements of Section 8.10 hereof as a separate or co-trustee to act
in jurisdictions other than the United States and the United Kingdom. Upon such
appointment, the Trustee will notify the Holders thereof and each and every
remedy, power, right, claim, demand, cause of action, immunity, estate, title,
interest, lien, duty and obligation expressed or intended by this Indenture to
be exercised by, vested in, conveyed to or imposed on the Trustee with respect
thereto (including the right to reasonable compensation and reimbursement of
expenses for its services under this Section) shall be exercisable by, vest in
and be imposed on such separate or co-trustee but, in the case of any such
remedy, power, right, claim, demand, cause of action, immunity, estate, title,
interest or lien, only to the extent necessary to enable such separate or
co-trustee to exercise such powers, rights and remedies, and only to the extent
that the Trustee by the laws of any jurisdiction is incapable of exercising such
powers, rights and remedies and every covenant and obligation necessary to the
exercise thereof by such separate or co-trustee shall run to and be enforceable
by either of them.
Should any instrument in writing from the Issuer be required
by the separate or co-trustee so appointed by the Trustee for more fully and
certainly vesting in and confirming to him or it such properties, rights,
powers, trusts, duties and obligations, any and all such instruments in writing
shall, on request, be executed, acknowledged and delivered by the Issuer at the
expense of the Issuer; provided that, if an Event of Default shall have occurred
and be continuing, if the Issuer does not execute any such instrument within
fifteen (15) days after request therefor, the Trustee shall be empowered as an
attorney-in-fact for the Issuer to execute any such instrument in the Issuer's
name and stead. In case any separate or co-trustee or a successor to either
shall die, become incapable of acting, resign or be removed, all the estates,
properties, rights, powers, trusts, duties and obligations of such separate or
co-trustee, so far as permitted by law, shall vest in and be exercised by the
Trustee until the appointment of a new trustee or successor to such separate or
co-trustee.
No trustee hereunder shall be personally liable by reason of
any act or omission of any other trustee hereunder; provided that such
co-trustee was appointed with due care.
The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Indenture and
the conditions of this Article VIII. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Indenture, specifically including every provision of
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this Indenture relating to the conduct of, affecting the liability of, or
affording protection to, the Trustee. Every such instrument shall be filed with
the Trustee and sent to the Holders.
Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law or this Indenture, to do any lawful act under or in
respect of this Indenture on its behalf and in its name.
ARTICLE IX
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01 Termination of Obligations. The Issuer may, at
its option, terminate its obligations under the Notes and this Indenture, except
those obligations referred to in the last paragraph of this Section 9.01, if
(a) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes which have been replaced or paid) have been
delivered to the Trustee for cancellation and the Issuer has paid all sums
payable by the Issuer hereunder; or
(b) (i) the Notes have become due and payable, mature within
one year or all of them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of redemption,
(ii) the Issuer irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in form and
substance satisfactory to the Trustee, as trust funds solely for the benefit of
the Holders for that purpose, cash or Government Obligations sufficient (in the
opinion of an internationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay principal and
interest, on the Notes to maturity or redemption, as the case may be, and to pay
all other sums payable by the Issuer hereunder, (iii) no Default or Event of
Default with respect to the Notes shall have occurred and be continuing on the
date of such deposit, (iv) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Issuer is a party or by which the Issuer is bound, and
(v) the Issuer has delivered to the Trustee an Officer's Certificate and an
Opinion of Counsel (with respect to any matters of law that are involved), in
each case stating that all conditions precedent provided for herein relating to
the satisfaction and discharge of this Indenture have been complied with.
With respect to the foregoing Section 9.01(a), the Issuer's
obligations under Sections 8.07, 9.04 and 9.05 shall survive. With respect
to the foregoing Section 9.01(b) the Issuer's obligations in Article VI and
Sections 2.02, 2.03, 2.06, 2.07, 2.08, 2.13, 4.01, 4.02, 8.07, 8.08, 9.03, 9.04
and 9.05 shall survive until the Notes are no longer outstanding. Thereafter,
only the Issuer's obligations in Sections 8.07, 9.04 and 9.05 shall survive.
After any such irrevocable deposit, the Trustee upon request shall acknowledge
in writing the discharge of the Issuer's obligations under the Notes and this
Indenture except for those surviving obligations specified above.
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Section 9.02 Legal Defeasance and Covenant Defeasance.
(a) The Issuer may, at its option by Board Resolution at any
time, with respect to the Notes, elect to have either paragraph (b) or paragraph
(c) below be applied to the outstanding Notes upon compliance with the
conditions set forth in paragraph (d).
(b) Upon the Issuer's exercise under paragraph (a) of the
option applicable to this paragraph (b), the Issuer shall be deemed to have been
released and discharged from its obligations with respect to the outstanding
Notes on the date the conditions set forth below are satisfied (hereinafter,
"Legal Defeasance"). Notwithstanding anything else in this Section 9.02, such
discharge will not occur prior to the end of the six-month period specified in
paragraph (d)(iii) below or, if applicable, until the end of the one-year period
specified in clause (2) of paragraph (d)(x) below. For this purpose, legal
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 paragraph (e) below and
the other Sections of and matters under this Indenture referred to in (i) and
(ii) below, and to have satisfied all its other obligations under such Notes and
this Indenture (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: (i) the rights of
Holders of outstanding Notes to receive solely from the trust fund described in
paragraph (d) below and as more fully set forth in such paragraph, payments in
respect of the principal of, and interest on, such Notes when such payments are
due, (ii) the Issuer's obligations with respect to such Notes under Article VI
and Sections 2.02, 2.03, 2.06, 2.07, 2.08 and 4.02 and, with respect to the
Trustee, under Sections 8.07 and 8.08, (iii) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (iv) this Section 9.02 and Sections
9.01, 9.03, 9.04 and 9.05. Subject to compliance with this Section 9.02, the
Issuer may exercise its option under this paragraph (b) notwithstanding the
prior exercise of their option under paragraph (c) below with respect to the
Notes.
(c) Upon the Issuer's exercise under paragraph (a) of the
option applicable to this paragraph (c), the Issuer shall be released and
discharged from its obligations under Sections 4.06 through 4.12, inclusive 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 to be not "Outstanding" for the purpose of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the outstanding Notes, the Issuer 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 Sections 7.01(a)(iv) or 7.01(a)(v), but, except as
specified above, the remainder of this Indenture and such Notes shall be
unaffected thereby.
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(d) The following shall be the conditions to application of
either paragraph (b) or paragraph (c) above to the outstanding Notes:
(i) the Issuer shall irrevocably have deposited or caused to
be deposited with the Trustee (or another trustee satisfying the
requirements of Section 8.10 who shall agree to comply with the
provisions of this Section 9.02 applicable to it) and conveyed all
right, title and interest to the Trustee for the benefit of the
Holders, under the terms of an irrevocable agreement in form and
substance satisfactory to the Trustee as trust funds in trust for the
purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of
such Notes, (x) cash in an amount sufficient or (y) Government
Obligations maturing as to principal and interest in such amounts of
money and at such times as are sufficient without consideration of any
reinvestment of such principal or interest, or (z) a combination
thereof, sufficient, in the opinion of an internationally recognized
firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge
not later than one day before the due date of any such payments, and
which shall be applied by the Trustee (or other qualifying trustee) to
pay and discharge when due, principal of and interest on the
outstanding Notes on the Maturity Dates, a Redemption Date or otherwise
in accordance with the terms of this Indenture and of such Notes;
provided that the Trustee (or other qualifying trustee) shall have
received an irrevocable written order from the Issuer instructing the
Trustee (or other qualifying trustee) to apply such cash or the
proceeds of such Government Obligations to said payments with respect
to the Notes;
(ii) no Default or Event of Default or event which with notice
or lapse of time or both would become a Default or an Event of Default
with respect to the Notes shall have occurred and be continuing on the
date of such deposit or at any time during the period ending on the
123rd day after the date of such deposit (it being understood that this
condition shall not be deemed satisfied until the expiration of such
period);
(iii) neither the Issuer nor any Restricted Subsidiary of the
Issuer is an "insolvent person" within the meaning of any Bankruptcy
Law on the date of such deposit or at any time during the period ending
at the end of the sixth month after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period);
(iv) such legal defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a Default or Event of
Default under, this Indenture or any other agreement or instrument to
which the Issuer or any of the Issuer's Significant Subsidiaries is a
party or by which it is bound;
(v) in the case of an election under paragraph (b) above, the
Issuer shall have delivered to the Trustee an Opinion of Counsel in the
United States stating that (A) the Issuer has received from, or there
has been published by, the Internal Revenue Service a ruling or (B)
since the Issue Date, there has been a change in the applicable U.S.
Federal income tax law, in either case to the effect that, and based
thereon such opinion shall confirm that, the Holders of the outstanding
Notes will not recognize income, gain or loss
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for U.S. Federal income tax purposes as a result of such deposit and
legal defeasance and will be subject to U.S. Federal income tax on the
same amounts, in the same manner and at the same times as would have
been the case if such legal defeasance had not occurred;
(vi) in the case of an election under paragraph (c) above, the
Issuer shall have delivered to the Trustee an Opinion of Counsel in the
United States (which may be based on an Internal Revenue Service
ruling) 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 income tax on the same amounts, in the same manner and at the
same times as would have been the case if such deposit and covenant
defeasance had not occurred;
(vii) the Issuer shall have delivered to the Trustee an
Opinion of Counsel in England and Wales to the effect that the Holders
of the outstanding Notes will not recognize income, gain or loss for
England and Wales income tax or other tax purposes as a result of such
defeasance or covenant defeasance, as applicable, and will be subject
to England and Wales and Spanish income tax and other tax on the same
amounts, in the same manner and at the same times as would have been
the case if such defeasance or covenant defeasance, as applicable, had
not occurred (this condition may not be waived by any Holder or the
Trustee);
(viii) the Issuer shall have delivered to the Trustee an
Officer's Certificate stating that the deposit made by the Issuer
pursuant to its election under paragraph (b) or (c) of this Section
9.02 was not made by the Issuer with the intent of preferring the
Holders over other creditors of the Issuer or with the intent of
defeating, hindering, delaying or defrauding creditors of the Issuer or
others;
(ix) in the case of an election under either paragraph (b) or
(c) above, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) the trust funds will not be subject to
any rights of any other holders of Indebtedness of the Issuer, and (B)
at the end of the sixth month following the deposit, the trust funds
will not be subject to the effect of any applicable Bankruptcy Law;
(x) in the case of an election under either paragraph (b) or
(c) above, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that (A) such deposit and legal defeasance or
covenant defeasance, as the case may be, shall not cause the Trustee or
the trust so created to be subject to the U.S. Investment Company Act
of 1940, as amended, and (B) after the passage of 123 days following
the deposit (except, with respect to any trust funds for the account of
any Holder who may be deemed to be an "insider" for purposes of the
U.S. Bankruptcy Code, after one year following the deposit), the trust
funds will not be subject to the effect of Section 547 of the U.S.
Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law
in a case commenced by or against the Issuer under either such statute;
(xi) in the case of an election under either paragraph (b) or
(c) above, the Issuer shall have delivered to the Trustee an Opinion of
Counsel to the effect that such deposit,
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legal or covenant defeasance, as the case may be, and discharge will
not cause the Notes to be delisted from any securities exchange on
which they are then listed; and
(xii) the Issuer shall have delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel (to the extent matters
of law are involved), each stating that (A) all conditions precedent
herein provided for relating to either the legal defeasance under
paragraph (b) above or the covenant defeasance under paragraph (c)
above, as the case may be, have been complied with and (B) if any other
Indebtedness of the Issuer shall then be outstanding or committed, such
legal defeasance or covenant defeasance will not violate the provisions
of the agreements or instruments evidencing such Indebtedness.
(e) All cash and Government Obligations (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this paragraph (e), the "Trustee") pursuant to
paragraph (d) above 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 the Paying and
Conversion 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 interest, but
such money need not be segregated from other funds except to the extent required
by law.
The Issuer shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to paragraph (d) above or the principal, and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Section 9.02 to the contrary notwithstanding,
the Trustee shall deliver or pay to the Issuer from time to time upon the
request, in writing, by the Issuer any cash or Government Obligations held by it
as provided in paragraph (d) above which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect an equivalent
legal defeasance or covenant defeasance.
Section 9.03 Application of Trust Money. Subject to Section
9.04 and 9.05, the Trustee shall hold in trust cash or Government Obligations
deposited with it pursuant to Sections 9.01 and 9.02, and shall apply the
deposited cash and the cash from Government Obligations in accordance with the
Notes and this Indenture to the payment of principal of, and interest, on the
Notes.
Section 9.04 Repayment to the Issuer. Subject to Sections
8.07, 9.01 and 9.02, Trustee and the Paying and Conversion Agent shall promptly
pay to the Issuer upon receipt by the Trustee and the Paying and Conversion
Agent of an Officer's Certificate stating the amount to which the Issuer is
entitled, any excess money, determined in accordance with Section 9.02(e), held
by it at any time. The Trustee and the Paying and Conversion Agent shall pay to
the Issuer upon receipt by the Trustee or the Paying and Conversion Agent, as
the case may be, of an Officer's Certificate stating the amount to which the
Issuer is entitled, any money held by it for the payment of principal or
interest that remains unclaimed for two years after payment to the Holders is
required; provided, however, that the Trustee and the Paying and Conversion
Agent
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before being required to make any payment may, but need not, at the expense of
the Issuer, mail by first-class mail to the Holder of any Global Note and to
each Holder of a Definitive Registered Note, if any, entitled to such money at
such Holder's address as set forth on the Register notice that such money
remains unclaimed and that after a date specified therein, which shall be at
least 30 days from the date of such mailing, any unclaimed balance of such money
then remaining will be repaid to the Issuer. After payment to the Issuer,
Noteholders entitled to money must look solely to the Issuer for payment as
general creditors unless an applicable law designates another Person, and all
liability of the Trustee or Paying and Conversion Agent with respect to such
money shall thereupon cease.
Section 9.05 Reinstatement. If the Trustee or Paying and
Conversion Agent is unable to apply any money or Government Obligations in
accordance with Section 9.01 or 9.02, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application, then
and only then shall the Issuer's obligations under this Indenture and the Notes
be revived and reinstated as though no deposit had been made pursuant to Section
9.01 or 9.02, as the case may be, until such time as the Trustee or Paying and
Conversion Agent is permitted to apply all such cash or Government Obligations
in accordance with this Indenture; provided that, if the Issuer has made any
payment of principal of, or interest on, any Notes because of 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 cash or Government Obligations
held by the Trustee or Paying and Conversion Agent.
ARTICLE X
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 10.01 Without Consent of Holders. The Issuer, when
authorized by a Board Resolution, and the Trustee may amend this Indenture and
the Notes, and may enter into one or more indentures supplemental hereto, in
form and substance satisfactory to the Trustee, without notice to or consent of
any Noteholder:
(a) to cure any ambiguity, defect or inconsistency, provided
that such amendment or supplement does not adversely affect the rights of any
Holder;
(b) to comply with any requirements of the SEC in connection
with any qualification of this Indenture under the TIA;
(c) [intentionally omitted]
(d) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes;
(e) to make any change that does not adversely affect the
rights of any Holder; or
(f) to reduce the period between the Conversion Notice Date
and the Conversion Date (including reducing such period to zero).
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Section 10.02 With Consent of Holders. Subject to Section 7.07
and the provisions of this Section 10.02, the Issuer, when authorized by a Board
Resolution of its Board, and the Trustee may modify or amend this Indenture and
the Notes in any respect with the consent of Holders representing a majority in
principal amount of the Notes present and voting at a meeting held in accordance
with Article XIII. Subject to Section 7.07 and the provisions of this Section
10.02, the Holders representing a majority in principal amount of the Notes
present and voting at a meeting held in accordance with Article XIII, may waive
compliance by the Issuer with any provision of this Indenture or the Notes.
Notwithstanding the foregoing, without the consent of Holders
of two-thirds in principal amount of the Notes present and voting at a meeting
held in accordance with Article XIII, a modification, amendment or waiver,
including a waiver pursuant to Section 7.04, may not:
(a) extend the Stated Maturity of the Principal of, or any
installment of interest on, any Note;
(b) reduce the Principal Amount of, or the rate of interest
payable upon, any Note; or
(c) change the place or currency of payment of Principal of,
or interest on, any Note;
(d) impair the right to institute suit for the enforcement of
any payment on or after the Stated Maturity, as the case may be, of any Note.
It shall not be necessary for the consent of the Holders under
this Section 10.02 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof.
Promptly after an amendment, supplement or waiver under this
Section 10.02 becomes effective, the Trustee shall give notice thereof by
first-class mail, at the expense of the Issuer, to the Holders of then
outstanding Notes, which notice shall set forth in general terms the substance
of the amendment, supplement or waiver. Any failure of the Trustee to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such amendment or waiver.
Promptly after the execution by the Issuer and the Trustee of
any supplemental indenture pursuant to the provisions of this Section 10.02, the
Trustee shall give notice thereof by first-class mail, at the expense of the
Issuer, to the Holders of then outstanding Notes, which notice shall set forth
in general terms the substance of such supplemental indenture. Any failure of
the Trustee to give such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such supplemental indenture or
waiver.
Section 10.03 [Intentionally Omitted]
Section 10.04 Revocation and Effect of Amendments and
Consents. Until an amendment or waiver becomes effective, a vote in favor of it
by a Holder is a continuing consent
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by the Holder and every subsequent Holder of that Note or portion of that Note
that evidences the same debt as the consenting Holder's Note, even if notation
of the vote is not made on any Note. However, any such Holder or subsequent
Holder may revoke the vote as to its Note or portion of a Note. Such revocation
shall be effective only if the Trustee receives the notice of revocation before
the date the amendment, supplement or waiver becomes effective. Except as
provided in Section 10.02, an amendment, supplement or waiver shall become
effective upon a vote of Holders representing a majority in Principal amount of
the Notes present and voting at a meeting of Holders held in accordance with
Article XIII.
After an amendment, supplement or waiver becomes effective, it
shall bind every Noteholder (and every subsequent Noteholder), unless it is of
the type described in any of clauses (a) through (d) of Section 10.02, in which
case it shall bind every Holder consenting thereto and every subsequent Holder
of a Note or portion of a Note that evidences the same debt as the consenting
Holder's Note.
Section 10.05 Notation on or Exchange of Notes. If an
amendment, supplement or waiver changes the terms of a Note, the Trustee shall
(in accordance with the specific direction of the Issuer) require the Holder of
the Note to deliver it to the Trustee. The Trustee shall (in accordance with the
specific direction of the Issuer) place an appropriate notation on the Note
about the changed terms and return it to the Holder. Alternatively, if the
Issuer or the Trustee so determines, the Issuer in exchange for the Note shall
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
Section 10.06 Trustee to Sign and Notify Noteholders of
Amendments, Etc. The Trustee shall sign any amendment, supplement or waiver
authorized pursuant to this Article X if the amendment, supplement or waiver
does not adversely affect the rights, duties or immunities of the Trustee. The
Trustee may, but shall not be obligated to, sign any amendment, supplement or
waiver that affects the rights, duties or immunities of the Trustee under this
Indenture or otherwise. In signing any amendment, supplement or waiver, the
Trustee shall be entitled to receive, and shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of any proposed
amendment, supplement or waiver is authorized or permitted by this Indenture.
The Trustee shall, promptly after any amendment, supplement or
waiver of the Indenture, notify all Noteholders of such amendment, supplement or
waiver.
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ARTICLE XI
[INTENTIONALLY OMITTED]
ARTICLE XII
[INTENTIONALLY OMITTED]
ARTICLE XIII
MEETINGS OF HOLDERS; VOTES
Section 13.01 Purposes for Which Meetings May Be Called. A
meeting of Holders may be called at any time and from time to time pursuant to
the provisions of this Article XIII for any of the following purposes: (a) to
give any notice to the Issuer or to the Trustee, or to give any directions to
the Trustee, or to waive or to consent to the waiving of any Default or Event of
Default hereunder and its consequences, or to take any other action authorized
to be taken by Holders pursuant to any of the provisions of Article VII; (b) to
remove the Trustee or appoint a successor Trustee pursuant to the provisions of
Article VIII; (c) to consent to an amendment, supplement or waiver pursuant to
provisions of Section 10.02; (d) to take any other action (i) authorized to be
taken by or on behalf of the Holder or Holders of any specified aggregate
principal amount of the Notes under any other provision of this Indenture, or
authorized or permitted by law or (ii) which the Trustee deems necessary or
appropriate in connection with the administration of this Indenture; provided,
however, that a meeting of Holders must be called pursuant to the provisions of
this Article XIII at any time and in any instance where a Business Combination
which would not constitute a Mandatory Conversion Business Combination has been
proposed, to vote on a redemption or a conversion of the Notes in accordance
with Section 4.08.
Section 13.02 Manner of Calling Meetings. The Trustee may at
any time call a meeting of Holders to take any action specified in Section
13.01, to be held at such time and at such place in London, England or elsewhere
as the Trustee shall determine. The Trustee shall at any time the Trustee has
received notice of an event requiring an action of Holders (and in any event,
upon receiving notice of a proposed Business Combination which would not
constitute a Mandatory Conversion Business Combination), call a meeting of
Holders, to be held at such time and at such place in London, England or
elsewhere as the Trustee shall determine. Notice of every meeting of Holders,
setting forth the time and place of such meeting and in general terms the action
proposed to be taken at such meeting, shall be mailed at the Issuer's expense by
the Trustee, first-class postage prepaid, to the Issuer and to the Holders at
their last addresses as they shall appear on the registration books of the
Registrar, not less than 15 Business Days prior to the date fixed for a meeting.
Any meeting of Holders shall be valid without notice if the
Holders of all Notes then outstanding are present in Person or by proxy, or if
notice is waived before or after the meeting by the Holders of all Notes
outstanding, and if the Issuer and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
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Section 13.03 Calling of Meetings by the Issuer or Holders.
The Issuer or one or more Holders of not less than 5% in aggregate principal
amount of the Notes then outstanding, may at any time call a meeting of Holders
to take any action specified in Section 13.01, to be held at such time and at
such place in London, England or elsewhere as the Issuer or the Holders, as the
case may be, shall determine by written request setting forth in reasonable
detail the action proposed to be taken at the meeting. Notice of every meeting
of Holders, setting forth the time and place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be mailed at the
Issuer's expense first-class postage prepaid, to the Issuer, the Trustee and to
the Holders at their last addresses as they shall appear on the registration
books of the Registrar, not less than 15 Business Days prior to the date fixed
for a meeting. The Issuer and the Trustee shall at all times maintain a
reasonably updated list of the Holders as they appear on the registration books
of the Registrar.
Section 13.04 Who May Attend and Vote at Meetings. To be
entitled to vote at any meeting of Holders, a Person shall (a) be a Holder, or
(b) be a Person appointed by a Holder by an instrument in writing as proxy for
such Holder with respect to all or a portion of the Notes held by such Holder.
The only Persons who shall be entitled to be present or to speak at any meeting
of Holders shall be the Persons entitled to vote at such meeting and their
counsel and any representatives of the Trustee and its counsel and any
representatives of the Issuer, and its counsel and any Person that submits
written proof satisfactory to the Issuer and the Trustee that such Person is a
Participant or Indirect Participant who is or represents a beneficial owner of
an interest in one or more Global Notes.
Section 13.05 Quorum; Action. Two or more Persons entitled to
vote at any meeting of Holders shall constitute a quorum.
Any resolution and all matters shall be effectively passed and
decided if passed or decided by Persons specified in clause (a) or (b) of
Section 13.04 representing a majority in Principal Amount of the Notes present
and voting at a meeting as provided in this Article XIII, subject to Section
10.02.
So long as the Notes are represented by a Global Note, the
Holder of such Global Note shall for the purposes of this Section 13.05 be
deemed to constitute a quorum and for the purposes of this Article XIII be
deemed to be holding such principal amount of the Notes (up to the Principal
Amount of Notes then outstanding represented by such Global Note) as the Holder
of such Global Note may specify and able to vote such amount for or against or
to abstain from voting in such principal amount as the Holder may specify.
Section 13.06 Limits on Voting. Any Person or group (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended)
that is the beneficial owner of more than 25% of the Notes then outstanding,
shall have such Person's or group's voting power limited to 25% of the Notes
then outstanding.
Section 13.07 Regulations May Be Made by Issuer; Conduct of
the Meeting; Voting Rights; Adjournment. Notwithstanding any other provision of
this Indenture, the Issuer may make such reasonable regulations as it may deem
advisable for any action by or any meeting of Holders, in regard to proof of the
holding of Notes and of the appointment of proxies,
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and in regard to the appointment and duties of inspectors of votes, and
submission and examination of proxies, certificates and other evidence of the
right to vote, and such other matters concerning the conduct of the meeting as
it shall think appropriate. Such regulations may fix a record date and time for
determining the Holders of record of Notes entitled to vote at such meeting, in
which case those and only those Persons who are Holders of Notes at the record
date and time so fixed, or their proxies, shall be entitled to vote at such
meeting whether or not they shall be such Holders at the time of the meeting.
The Holders shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Issuer or by the Holder as provided in Section 13.03, in which case the
Issuer or the Holders calling the meeting, as the case may be, shall in like
manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Holders of a majority
in principal amount of the Notes represented at the meeting and entitled to
vote.
At any meeting each Holder or proxy shall be entitled to one
vote for each Euro 1.00 principal amount of Notes held or represented by him, in
whole vote increments; provided, however, that no vote shall be cast or counted
at any meeting in respect of any Notes challenged as not outstanding and ruled
by the chairman of the meeting to be not then outstanding. The chairman of the
meeting shall have no right to vote other than by virtue of Notes held by him or
instruments in writing as aforesaid duly designating him as the proxy to vote on
behalf of other Holders. Any meeting of Holders duly called pursuant to the
provisions of Section 13.02 or Section 13.03 may be adjourned from time to time
by vote of the Holders of a majority in aggregate principal amount of the Notes
represented at the meeting and entitled to vote, and the meeting may be held as
so adjourned without further notice.
Section 13.08 Voting at the Meeting and Record to Be Kept. The
vote upon any resolution submitted to any meeting of Holders shall be by written
ballots on which shall be subscribed the signatures of the Holders of Notes or
of their representatives by proxy and the principal amount of the Notes voted by
the ballot. The permanent chairman of the meeting shall appoint two inspectors
of votes, who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Holders shall be prepared by
the secretary of the meeting and there shall be attached to such record the
original reports of the inspectors of votes on any vote by ballot taken thereat
and affidavits by one or more Persons having knowledge of the facts, setting
forth a copy of the notice of the meeting and showing that such notice was
mailed as provided in Section 13.02 or published as provided in Section 13.03.
The record shall be signed and verified by the affidavits of the permanent
chairman and the secretary of the meeting and one of the duplicates shall be
delivered to the Issuer and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
Section 13.09 Exercise of Rights of Trustee or Holders May Not
Be Hindered or Delayed by Call of Meeting. Nothing contained in this Article
XIII shall be deemed or construed
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to authorize or permit, by reason of any call of a meeting of Holders or any
rights expressly or impliedly conferred hereunder to make such call, any
hindrance or delay in the exercise of any right or rights conferred upon or
reserved to the Trustee or to the Holders under any of the provisions of this
Indenture or of the Notes except to the extent such hindrance or delay results
solely from compliance with the provisions of this Article XIII.
ARTICLE XIV
MISCELLANEOUS
Section 14.01 Application of Trust Indenture Act. If and to
the extent that any provision of this Indenture limits, qualifies, or conflicts
with the duties that would be imposed by, or with another provision (an
"Incorporated Provision") included in this Indenture by incorporation of any
provisions of Sections 310 to 318, inclusive, of the TIA as if the TIA were
applicable to this Indenture, such imposed duties or incorporated provision
shall control.
Section 14.02 Notices. Any notice or communication shall be
deemed given if in writing and delivered in Person or mailed by first-class mail
or telecopier communication, addressed as follows, and received by the
addressee:
(a) if to the Issuer:
Jazztel plc
c/o Jazz Telecom S.A.
Avenida de Europa 14
Parque Empresarial ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Telephone: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telecopier: ▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel
(b) if to the Trustee, the Paying and Conversion Agent or the
Book-Entry Depositary:
The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: ▇▇▇ (▇) ▇▇▇▇▇▇▇▇▇▇
Telecopier: ▇▇▇ (▇) ▇▇▇▇▇▇▇▇▇▇
Attention: Corporate Trust Administration
The Issuer, the Trustee or the Book-Entry Depositary by notice
to the other may designate additional or different addresses for subsequent
notices or communications.
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Any notice or communication mailed to a Holder of a Definitive
Registered Note, shall be mailed to him, first-class postage prepaid, at his
address as it appears in the Register and shall be deemed given to him if so
mailed within the time prescribed. Copies of any such communication or notice to
a Holder shall also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. Except for a notice to the Trustee, which is deemed given only when
received, and except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided above, it is duly given, whether
or not the addressee receives it.
Section 14.03 Communications by Holders with Other Holders.
Noteholders may communicate pursuant to TIA ss. 312(b) with other Noteholders
with respect to their rights under this Indenture or the Notes. The Issuer, the
Trustee, the Registrar and any other Person shall have the protection of TIA ss.
312(c).
Section 14.04 Certificate and Opinion of Counsel as to
Conditions Precedent. Upon any request or application by the Issuer to the
Trustee to take any action under this Indenture, the Issuer shall furnish to the
Trustee (a) an Officer's Certificate stating that, in the opinion of the signer,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, (b) an Opinion of Counsel stating that,
in the opinion of counsel, all such conditions (to the extent they involve a
matter of law) have been complied with and (c) where applicable, a certificate
or opinion by an accountant that complies with TIA ss. 314(c).
Section 14.05 Statements Required in Certificate and Opinion
of Counsel. Each certificate and Opinion of Counsel with respect to compliance
with a condition or covenant provided for in this Indenture shall include:
(a) a statement that the Person making such certificate or
Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in such
certificate or Opinion of Counsel are based;
(c) a statement that, in the opinion of such Person, 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
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with, and such other
opinions as the Trustee may reasonably request; provided, however, that, with
respect to matters of fact, an Opinion of Counsel may rely on an Officer's
Certificate or certificates of public officials.
Section 14.06 Rules by Trustee, Paying and Conversion Agent,
Registrar. The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Paying and Conversion Agent or Registrar may make reasonable
rules for its functions.
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Section 14.07 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.
Each of the parties hereto irrevocably agrees that any suit,
action or proceeding arising out of or relating to this Indenture, the Notes, or
brought under federal or state securities laws or brought by the Trustee or any
Agent, may be instituted in any federal or state court in the State of New York,
borough of Manhattan; irrevocably agrees that any suit, action or proceeding
arising out of or relating to this Indenture, the Notes, or brought by the
Trustee or any Agent, may be instituted in any court in England; irrevocably
waives, to the fullest extent it may effectively do so, any objection which it
may now or hereafter have to the laying of venue of any such proceeding; and
irrevocably submits to the jurisdiction of such courts in any such suit, action
or proceeding. The Issuer has irrevocably appointed CT Corporation System,
located at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as its agent (the
"Authorized Agent") for service of process in any suit, action or proceeding
arising out of or relating to this Indenture, the Notes, or brought under
federal or state securities laws or brought by the Trustee or any Agent, that
may be instituted in federal or state courts in the State of New York, borough
of Manhattan. The Issuer expressly consents to the jurisdiction of any such
court in respect of any such action and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable unless and until replaced by an agent reasonably acceptable to
the Trustee. The Issuer represents and warrants that the Authorized Agent has
agreed to act as said agent for service of process, and the Issuer agrees 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. Service of process upon the Authorized Agent and
written notice of such service to the Issuer shall be deemed, in every respect,
effective service of process upon the Issuer.
In addition, the Issuer irrevocably agrees that any suit,
action or proceeding arising out of or relating to this Indenture, the Notes, or
brought by the Trustee or any Agent, may be instituted in any court in the city
of Madrid, Spain.
To the extent that either the Issuer has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment in
aid of execution or otherwise) with respect to itself or its property, the
Issuer hereby irrevocably waives such immunity in respect of its obligations
under this Indenture and the Notes, and in respect of actions brought under U.S.
federal or state securities laws, to the fullest extent permitted by law.
Section 14.08 Legal Holidays. If a payment date is a Legal
Holiday at a place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period.
Section 14.09 Governing Law. THIS INDENTURE AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE
REQUIRED THEREBY.
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Section 14.10 No Recourse Against Others. No recourse for the
payment of the principal of, or interest on, any of the Notes or for any claim
based thereon or otherwise in respect thereof, and no recourse under or upon any
obligation, covenant or agreement of the Issuer in this Indenture or the Notes
or because of the creation of any Indebtedness represented thereby, shall be had
against any incorporator, shareholder, officer, director, employee or
controlling person of the Issuer or of any successor Person thereof. Each
Holder, by accepting the Notes, waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
Section 14.11 Successors. All agreements of the Issuer in this
Indenture and the Notes shall bind its successor. All agreements of the Trustee
in this Indenture shall bind its successor.
Section 14.12 Duplicate Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
Section 14.13 Separability. 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 14.14 Table of Contents, Headings, Etc. The Table of
Contents, Cross-Reference Table and headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, and are not
to be considered a part hereof, and shall in no way modify or restrict any of
the terms or provisions hereof.
Section 14.15 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Issuer or any Subsidiary of the Issuer. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
[Signature page follows]
-89-
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of the date first written above.
JAZZTEL PLC,
as the Issuer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: CEO
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Secretary
THE BANK OF NEW YORK,
as Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: AVP
EXHIBIT A
FORM OF GLOBAL NOTE
[FACE OF NOTE]
THE INITIAL PRINCIPAL AMOUNT OF THIS GLOBAL NOTE MAY BE
INCREASED OR DECREASED AS INDICATED IN THE SCHEDULE HERETO
JAZZTEL PLC
12.0% CONVERTIBLE NOTE DUE 2012
ISIN:
_____________ No. B-__________
Euro___________
Issue Date: __________
JAZZTEL PLC, a public company with limited liability organized in England and
Wales (the "the Issuer"), for value received, promises to pay to the bearer upon
surrender hereof the principal sum set forth on the attached Schedule A
_____________________________ in Euro or pounds sterling (as provided in the
Indenture) on October 30, 2012.
Interest Payment Dates: April 30 and October 30 commencing April 30, 2003.
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
Dated ______________
JAZZTEL PLC,
as the Issuer
By:
----------------------------------
Name:
Title:
A-1
(Form of Trustee's Certificate of Authentication)
This is one of the 12.0% Convertible Notes due 2012 described in the
within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
________________________________
Authorized Signatory
Date: ____________________________
A-2
[REVERSE SIDE OF NOTE]
JAZZTEL PLC
12.0% CONVERTIBLE NOTE DUE 2012
1. Principal and Interest. The Issuer will pay the principal
sum indicated on Schedule A of this Note on October 30, 2012.
The Issuer promises to pay interest on the principal sum indicated on Schedule A
of this Note on each Interest Payment Date, commencing April 30, 2003, as set
forth below and in the Indenture, at the rate per annum shown on the face of
this Note.
Interest will be paid semi-annually in arrears to the Holder of this Note on
each Interest Payment Date, commencing April 30, 2003.
Subject to Section 6.13 of the Indenture, interest on this Note will accrue from
the latest date to which interest has been paid on the Notes or, if no interest
has been paid, from the Issue Date. Interest will be computed on the basis of a
360-day year of twelve 30-day months.
The Issuer shall pay interest on overdue Principal and interest on overdue
installments of interest, if any, to the extent lawful, at the rate equal to
that borne by the Notes. Any such interest shall be payable on demand and shall
be compounded semiannually on each April 30 and October 30.
2. Method of Payment. The Issuer will pay interest (except
defaulted interest) to the Holder on the principal amount of this Note on each
April 30 and October 30.
The Issuer will pay principal, premium, if any, interest and Additional Amounts,
if any, in Euro or pounds sterling as provided in the Indenture. The Issuer must
pay principal, premium, if any, interest and Additional Amounts, if any, by wire
transfer of immediately available funds with respect to this Global Note the
Holder of which shall have provided wire transfer instructions to the Issuer or
the Paying and Conversion Agent. In other situations, the Issuer may mail a
check for the relevant amount to the Note Custodian except that any final
payment of principal will be made only upon presentment of this Global Note to
the Paying and Conversion Agent. If a payment date is a date other than a
Business Day at a place of payment, payment may be made at that place on the
next succeeding day that is a Business Day and no interest shall accrue for the
intervening period.
The Issuer may, at its option, pay accrued interest by the
issuance of Additional Notes as provided in the Indenture.
3. Paying and Conversion Agent. The Issuer has appointed The
Bank of New York, acting through its London office, to act as the Paying and
Conversion Agent. The Issuer may change any Paying and Conversion Agent upon
written notice thereto; provided that it will at all times maintain a Paying and
Conversion Agent in the city of London, for so long as the
A-3
Notes are listed on the Spanish Stock Exchange. Neither the Issuer nor any of
its Affiliates may act as Paying and Conversion Agent.
4. Indenture. The Issuer issued the Notes under an Indenture
dated November 18, 2002 (the "Indenture") among the Issuer and the Trustee. This
Note is one of an issue of Notes of the Issuer issued, or to be issued, under
the Indenture. The Indenture and the Notes are not subject to and will not be
qualified under the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb), as amended from time to time, in reliance on an exemption
thereunder. However, certain provisions of the Trust Indenture Act are
incorporated by reference into the Indenture and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of all such terms.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured obligations of the Issuer convertible into the Issuer's
Ordinary Shares, at the option of Holders in accordance with the Indenture.
5. Restrictive Covenants. The Indenture contains certain
covenants, including, without limitation, covenants with respect to the
following matters: (i) Payment of Notes; (ii) Maintenance of Office or Agency;
(iii) Corporate Existence; (iv) Payment of Taxes and Other Claims; (v)
Maintenance of Properties; Insurance; Books and Records; Compliance with Law;
(vi) Compliance Certificates; (vii) Reports; (viii) Business Combinations; (ix)
Limitation on Indebtedness; (x) Limitation on Restricted Payments; (xi)
Limitation on Liens; and (xii) Additional Amounts. The restrictive covenants are
subject to a number of important qualifications and exceptions set forth in the
Indenture. The Issuer must report to the Trustee annually on compliance with the
restrictive covenants contained in the Indenture.
6. Optional Redemption. The Issuer may, at any time, at its
option call for redemption of all (but not less than all) of the Notes then
outstanding (including, without limitation, all Additional Notes), at a
redemption price, paid as set forth below, equal to 101% of the Principal Amount
of all of such Notes, plus accrued but unpaid interest thereon through the
Redemption Date. Upon receiving the Issuer's notice of redemption, each Holder
will be entitled to elect whether the redemption price due in respect of all of
its Notes shall be paid in (a) cash, or (b) a number of Ordinary Shares based on
the Conversion Price in existence on the Redemption Date, or (c) any combination
of cash and Ordinary Shares based on the Conversion Price in existence on the
Redemption Date. Where redemption is paid in cash, the Issuer may, at its
option, notwithstanding anything herein to the contrary, pay the Principal
Amount of such redemption in pounds sterling rather than Euro, provided that if
it does so elect it shall pay an amount equal to 101.5% of Principal Amount of
the Notes to which the cash payment relates with the sterling amount calculated
by applying the Euro Equivalent on the date that the cash payment is due. Each
Holder will be required to make the foregoing election, by completing, executing
and returning to the Issuer, within ten (10) Business Days of receipt, that
portion of the Issuer's Notice of Redemption which contains election
instructions for each Holder with respect to its Notes. Subject to the next
succeeding sentence, failure to timely return a Notice of Redemption shall be
deemed an election to take cash. Notwithstanding any such election, each Holder
will retain its right to convert some or all of its Notes into Ordinary Shares,
by exercising
A-4
its Conversion Rights up to the close of business on the Business Day preceding
the Redemption Date.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to the
Holder of this Note as provided in the Indenture.
8. Repurchase upon Certain Business Combinations. If following
the first public announcement by the Company of a proposed Business Combination
the average Closing Price of the Ordinary Shares for the fifteen (15) Trading
Days beginning on the first full Trading Day following such public announcement
is less than the Conversion Price then in effect, the Issuer shall mail a notice
to the Trustee, the Paying and Conversion Agents, the Registrar and each Holder
stating that a Business Combination has been proposed and a meeting of Holders
is being called pursuant to Section 4.08 and Article XIII of the Indenture for
the purpose of voting on whether the Issuer should be required, subject to the
consummation of the Business Combination, to (i) repurchase all of the Notes
then outstanding, in cash at a purchase price equal to 101% of the principal
amount thereof, or (ii) convert all of the Notes then outstanding into Ordinary
Shares of the Issuer valuing all outstanding Notes at 101% of their principal
amounts for these purposes.
A notice of such proposed Business Combination will be mailed promptly after
determination of whether or not a Mandatory Vote is required to the Holder of
this Note and to each Holder of Definitive Registered Notes at such Holder's
address as it appears in the Register. On and after the Consummation Date,
interest will cease to accrue on the Notes or portions of Notes surrendered for
purchase unless the Issuer defaults in the payment of the Mandatory Repurchase
Payment, Ordinary Shares or securities or other consideration to which Holders
are otherwise entitled to as a result of such Business Combination.
9. Conversion Right. Subject to and upon compliance with the
provisions of Article VI, at the option of the Holder thereof, any Note may be
converted, in whole, or in part in multiples of Euro 1.00 principal amount, into
fully paid and non-assessable Ordinary Shares issuable upon conversion of the
Notes (the "Conversion Right"), at the Conversion Price in effect at the
Conversion Date, until and including, but not after the close of business on the
Stated Maturity, unless such Note or some portion thereof shall have been called
for redemption or delivered for repurchase prior to the Stated Maturity and no
default is made in making due provision for the payment of the redemption price
or the Mandatory Repurchase Payment or Mandatory Conversion in accordance with
the terms of the Indenture, in which case, with respect to each Note or portion
thereof as has been so called for redemption or delivered for repurchase, such
Note or portion thereof may be so converted until and including, but not after,
the close of business on the Business Day prior to the Redemption Date or
Consummation Date, as applicable, for such Note, unless the Issuer subsequently
fails to pay the applicable redemption price or make the Mandatory Repurchase
Payment or Mandatory Conversion, as the case may be. For the avoidance of doubt,
Notes which have been called for redemption or delivered for repurchase and in
respect of which a Conversion Right has been exercised by the aforementioned
deadlines, shall be converted into Ordinary Shares as promptly as practicable
following exercise of the Conversion Right, notwithstanding the waiting periods
referenced in Section 6.01(b) in the Indenture.
A-5
The Issuer shall be required to honor and accommodate Conversion Notices (i) at
least once every calendar month (or portion thereof, in the case of that month
which contains the Issue Date) (each, an "Initial Conversion Period") in the
one-year period commencing on the Issue Date, provided that Conversion Notices
delivered to the Issuer on or prior to the last Business Day of each month and
with respect to which the Conversion Notice Date has occurred within such
Initial Conversion Period) need be honored by the end of the following month
(with any Conversion Notices delivered thereafter or delivered during such
Initial Conversion Period but in respect of which the Conversion Notice Date has
occurred after the end of the relevant Initial Conversion Period, to be honored
by the end of the immediately following month), and (ii) at least once every
calendar quarter, on and after the first anniversary of the Issue Date (each, a
"Subsequent Conversion Period"), provided that Conversion Notices delivered to
the Issuer on or prior to the last Business Day of that calendar quarter's end
and with respect to which the Conversion Notice Date has occurred on such
Subsequent Conversion Period need be honored by the end of the first month of
the following quarter. Notwithstanding the foregoing, the Issuer shall be
required to honor and accommodate, as promptly as practicable following receipt
of one or more Conversion Notices in any given Initial or Subsequent Conversion
Period, received from one or more Holders, relating to 10% or more of the
aggregate Principal Amount of Initial Notes originally issued, and in any event
during the month following the Conversion Notice Date relating to the last of
the Conversion Notices so received. To satisfy its obligations pursuant to
Section 6.01(b) of the Indenture, the Issuer shall be required to take all
actions, including without limitation the preparation and filing of one or more
Spanish listing prospectuses, to give effect to Conversion Notices received and
to cause the listing of Ordinary Shares on the Nuevo ▇▇▇▇▇▇▇ (or if the Ordinary
Shares shall not at the relevant time be quoted or listed thereon, on the
principal securities exchange or interdealer quotation system on which the
Ordinary Shares are then listed or quoted).
To exercise its Conversion Right, the holder of Book-Entry Interests must:
(i) duly complete and manually sign a Conversion Notice in the
form of Exhibit D to the Indenture (a "Conversion Notice") and deliver
(or cause to be delivered) such Conversion Notice to the Issuer and the
Paying and Conversion Agent;
(ii) transfer such Book-Entry Interests to the Principal
Paying and Conversion Agent by book-entry transfer for cancellation;
(iii) if required, furnish appropriate endorsements and
transfer documents; and
(iv) if required but subject to Section 6.08 of the Indenture,
pay any taxes and capital, stamp, issue and registration duties arising
on the exercise of such Conversion Right, and all taxes, if any,
arising by reference to any disposal or deemed disposal of any Ordinary
Shares in connection with the exercise of such Conversion Right.
Upon the occurrence of a Mandatory Conversion Triggering Event all Notes then
outstanding shall automatically convert into the right to receive Ordinary
Shares as provided in Section 6.12 of the Indenture.
A-6
The above description of the Conversion Right is qualified by reference to,
and is subject in its entirety by, the Indenture.
10. Denominations. Global Notes are in bearer form, without
coupons, and must be denominated in an amount equal to Euro 1.00 of principal
amount or an integral multiple thereof and collectively represent the aggregate
principal amount of all the Notes issued and not yet canceled, other than
Definitive Registered Notes.
11. Persons Deemed Owners. The bearer of this Note shall be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of principal or
interest remains unclaimed for two years, the Trustee or the Paying and
Conversion Agent will pay the money back to the Issuer at its request. After
that, Holders entitled to the money must look to the Issuer for payment as
general creditors unless an "abandoned property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Issuer and the
Trustee may, without the consent of the Holders of any outstanding Notes, amend,
waive or supplement the Indenture or the Notes for certain specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies,
reducing the period between the Conversion Notice Date and the Conversion Date
(including reducing such period to zero), and making any change that does not
adversely affect the rights of any Holder. Other amendments and modifications of
the Indenture or the Notes may be made by the Issuer and the Trustee with the
consent of the Holders of not less than a majority of the principal amount of
the Notes present and voting at a meeting held according to the Indenture,
subject to certain exceptions requiring the consent of the Holders of two-thirds
of the principal amount of the Notes present and voting at a meeting held
according to the Indenture.
14. Successor Corporation. Subject to Section 5.01(a) of the
Indenture, upon any consolidation, merger or any transfer of all or
substantially all of the assets of the Issuer, the surviving entity formed by
such consolidation or into which the Issuer is merged or to which such transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under the Indenture with the same effect as if such
surviving entity had been named as the Issuer therein, and thereafter, the
predecessor company (except in the case of a lease) shall be released from all
obligations and covenants under the Indenture.
15. Defaults and Remedies. The following events are "Events of
Default" for purposes of the Indenture: (i) the Issuer defaults in the payment
of principal of any Note when the same becomes due and payable, at maturity or
upon acceleration, redemption or otherwise; (ii) the Issuer defaults in the
payment of interest on any Note when the same becomes due and payable, and such
default continues for a period of 30 days; (iii) [intentionally omitted]; (iv)
the Issuer fails to redeem or repurchase Notes, as the case may be, for cash
following a redemption notice (in respect of Notes subject to a cash redemption
election) or Mandatory Repurchase Offer; (v) the Issuer or any Restricted
Subsidiary defaults in the performance of or breaches any other covenant or
agreement in the Indenture or under the Notes and the default or breach
continues for a period of 30 consecutive days after written notice by the
Trustee or the Holders of a majority of Notes present and voting at a meeting
held in accordance with the Indenture;
A-7
(vi) there occurs with respect to any issue or issues of Indebtedness of the
Issuer or any Restricted Subsidiary having an outstanding principal amount of
Euro 5.0 million or more in the aggregate for all such issues of all such
Persons, whether such Indebtedness now exists or shall hereafter be created, the
following: (A) an event of default that has caused the holders thereof to
declare such Indebtedness to be due and payable prior to its Stated Maturity and
such Indebtedness has not been discharged in full or such acceleration has not
been rescinded or annulled within 30 days following such acceleration; and/or
(B) the failure to make a principal payment at the final (but not any interim)
Stated Maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default; (vii) any final judgment or
order for the payment of money in excess of Euro 5.0 million in the aggregate
for all such final judgments or orders against all such Persons shall be
rendered against the Issuer or any Restricted Subsidiary and shall not be paid
or discharged, and there shall be any period of 60 consecutive days following
entry of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged against
all such Persons to exceed Euro 5.0 million during which a stay of enforcement
of such final judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; and (viii) certain events of bankruptcy, insolvency,
reorganization or administration affecting the Issuer or any Restricted
Subsidiary.
Subject to certain limitations in the Indenture, if an Event of Default (other
than an Event of Default specified in (viii) above that occurs with respect to
the Issuer) occurs and is continuing under the Indenture, the Trustee or the
Holders representing a majority of Notes present at a meeting convened and held
in accordance with Article XIII of the Indenture, by written notice to the
Issuer (and to the Trustee if such notice is given by the Holders (the
"Acceleration Notice")), may, and the Trustee at the request of such Holders
shall, declare the Notes to be immediately due and payable at 100% of the
outstanding Principal thereof, plus accrued and unpaid interest thereon to the
date of such declaration. Upon a declaration of acceleration, such Principal and
accrued and unpaid interest shall be immediately due and payable. If an Event of
Default specified in (viii) above occurs with respect to the Issuer, the Notes
then outstanding shall ipso facto become and be immediately due and payable at
100% of the outstanding Principal thereof plus accrued and unpaid interest to
the date of such Event of Default, in each case without any declaration or other
act on the part of the Trustee or any Holder.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders representing a
majority in principal amount of the Notes present and voting at a meeting as
provided in Article XIII of the Indenture may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Issuer must
furnish an annual compliance certificate to the Trustee.
16. Limits on Voting. Any Person or group that is the
beneficial owner of more than 25% of the Notes then outstanding, shall have such
Person's or group's voting power limited to 25% of the Notes then outstanding.
A-8
17. Trustee Dealings with the Issuer. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuer or its Affiliates, and may otherwise deal with
the Issuer or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others. The Trustee, (and any of its
officers, directors, employees and agents), director, officer, employee,
stockholder or incorporator, as such, of the Issuer shall not have any liability
for any obligations of the Issuer under the Indenture or the Notes or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Noteholder by accepting a Note waives and releases all such
liability.
19. Discharge Prior to Redemption or Maturity. The Issuer's
obligations pursuant to the Indenture will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Notes or upon the irrevocable deposit with the
Trustee of Euro or Government Obligations sufficient to pay when due principal
of and interest on the Notes to maturity or redemption, as the case may be.
20. Authentication. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
The internal laws of the State of New York shall govern this Note without regard
to principles of conflict of laws.
The Issuer will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
JAZZTEL PLC
c/o Jazz Telecom S.A.
Avenida de Europa 14
Parque Empresarial La ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Telephone:▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telecopier:▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel
A-9
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
OF INDEBTEDNESS EVIDENCED BY THIS NOTE
The initial principal amount of indebtedness evidenced by this Note shall be
Euro ___________. The following decreases/increases in the principal amount of
indebtedness evidenced by this Note have been made:
Date of Decrease in Increase in Principal Total Principal Notation Made by or
Decrease/Increase Principal Amount of Amount of Amount of on Behalf of the
Indebtedness Indebtedness Evidenced Indebtedness Paying and
Evidenced Evidenced Following Conversion Agent or
such Registrar
Decrease/Increase
----------------------------------------------------------------------------------------------------------------------
A-10
EXHIBIT B
FORM OF DEFINITIVE REGISTERED NOTE
[FACE OF NOTE]
[Insert 144A Legend if applicable]
JAZZTEL PLC
12.0% CONVERTIBLE NOTE DUE 2012
No. R Euro____________
Issue Date:
JAZZTEL PLC, a public company with limited liability organized in England and
Wales (the "the Issuer"), for value received, promises to pay to
___________________________________, or its registered assigns, the principal
sum of __________________________________ Euro (Euro_______) or pounds sterling
((pound)_______) (as provided in the Indenture) on October 30, 2012.
Interest Payment Dates: April 30 and October 30 commencing April 30, 2003.
Regular Record Dates: April 15 and October 15
Reference is hereby made to the further provisions of this Note set forth on the
reverse hereof, which further provisions shall for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by
facsimile by its duly authorized officer.
Dated _______________
JAZZTEL PLC,
as the Issuer
By:
-----------------------------
Name:
Title:
B-1
(Form of Trustee's Certificate of Authentication)
This is one of the 12.0% Convertible Notes due 2012 described in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
---------------------------------
Authorized Signatory
Date:_______________________________
B-2
[REVERSE SIDE OF NOTES]
JAZZTEL PLC
12.0% CONVERTIBLE NOTE DUE 2012
1. Principal and Interest. The Issuer will pay the principal
of this Note on October 30, 2012.
The Issuer promises to pay interest on the principal amount of this Note on each
Interest Payment Date, commencing April 30, 2003, as set forth below and in the
Indenture, at the rate per annum shown on the face of this Note.
Interest will be paid semiannually in arrears (to the holders of record of the
Notes at the close of business on April 15 or October 15 immediately preceding
the relevant Interest Payment Date) on each Interest Payment Date, commencing
April 15, 2003.
Subject to Section 6.13 of the Indenture, interest on this Note will accrue from
the most recent date to which interest has been paid or, if no interest has been
paid, from the Issue Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months.
The Issuer shall pay interest on overdue Principal and interest on overdue
installments of interest, to the extent lawful, at a rate equal to that borne by
the Notes. Any such interest shall be payable on demand and shall be compounded
semiannually on each April 30 and October 30.
2. Method of Payment. The Issuer will pay interest (except
defaulted interest) on the principal amount of the Notes on each April 30 and
October 30 to the persons who are Holders (as reflected in the Register at the
close of business on the April 15 and October 15 immediately preceding the
relevant Interest Payment Date), in each case, even if the Note is canceled on
registration of transfer or registration of exchange after such record date.
The Issuer will pay principal, premium, if any, interest and Additional Amounts,
if any, in Euro or pounds sterling as provided in the Indenture. The Issuer must
pay principal, premium, if any, interest and Additional Amounts, if any, by wire
transfer of immediately available funds with respect to any Definitive
Registered Note the Holder of which shall have provided wire transfer
instructions to the Issuer or the Paying and Conversion Agent. In other
situations, the Issuer may mail or cause to be mailed a check for the relevant
amount to a Holder's registered address (as reflected in the Register) except
that any final payment of principal will be made only upon presentment of this
Definitive Registered Note to the Paying and Conversion Agent. If a payment date
is a date other than a Business Day at a place of payment, payment may be made
at that place on the next succeeding day that is a Business Day and no interest
shall accrue for the intervening period.
The Issuer may, at its option, pay accrued interest by the
issuance of Additional Notes as provided in the Indenture.
3. Paying and Conversion Agent and Registrar. The Issuer has
appointed The Bank of New York, acting through its London office, to act as the
Paying and Conversion Agent
B-3
and Registrar, and The Bank of New York to act as a Registrar. The Issuer may
change any Paying and Conversion Agent or Registrar upon written notice thereto;
provided that it will at all times maintain a Paying and Conversion Agent in
Spain, for so long as the Notes are listed on the Spanish Stock Exchange.
Neither the Issuer nor any of its Affiliates may act as Paying and Conversion
Agent, or Registrar.
4. Indenture. The Issuer issued the Notes under an Indenture
dated November 18, 2002 (the "Indenture") among the Issuer and the Trustee. This
Note is one of an issue of Notes of the Issuer issued, or to be issued, under
the Indenture. The Indenture and the Notes are not subject to and will not be
qualified under the Trust Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇.
77aaa-77bbbb), as amended from time to time, in reliance on an exemption
thereunder. However, certain provisions of the Trust Indenture Act are
incorporated by reference into the Indenture and Holders are referred to the
Indenture and the Trust Indenture Act for a statement of all such terms.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. To the extent permitted by applicable
law, in the event of any inconsistency between the terms of this Note and the
terms of the Indenture, the terms of the Indenture shall control.
The Notes are unsecured obligations of the Issuer convertible into the Issuer's
Ordinary Shares, at the option of Holders in accordance with the Indenture.
5. Restrictive Covenants. The Indenture contains certain
covenants, including, without limitation, covenants with respect to the
following matters: (i) Payment of Notes; (ii) Maintenance of Office or Agency;
(iii) Corporate Existence; (iv) Payment of Taxes and Other Claims; (v)
Maintenance of Properties; Insurance; Books and Records; Compliance with Law;
(vi) Compliance Certificates; (vii) Reports; (viii) Business Combinations; (ix)
Limitation on Indebtedness; (x) Limitation on Restricted Payments; (xi)
Limitation on Liens; and (xii) Additional Amounts. The restrictive covenants are
subject to a number of important qualifications and exceptions set forth in the
Indenture. The Issuer must report to the Trustee annually on compliance with the
restrictive covenants contained in the Indenture.
6. Optional Redemption. The Issuer may, at any time, at its
option call for redemption of all (but not less than all) of the Notes then
outstanding (including, without limitation, all Additional Notes), at a
redemption price, paid as set forth below, equal to 101% of the Principal Amount
of all of such Notes, plus accrued but unpaid interest thereon through the
Redemption Date. Upon receiving the Issuer's notice of redemption, each Holder
will be entitled to elect whether the redemption price due in respect of all of
its Notes shall be paid in (a) cash, or (b) a number of Ordinary Shares based on
the Conversion Price in existence on the Redemption Date, or (c) any combination
of cash and Ordinary Shares based on the Conversion Price in existence on the
Redemption Date. Where redemption is paid in cash, the Issuer may, at its
option, notwithstanding anything herein to the contrary, pay the Principal
Amount of such redemption in pounds sterling rather than Euro, provided that if
it does so elect it shall pay an amount equal to 101.5% of Principal Amount of
the Notes to which the cash payment relates with the sterling amount calculated
by applying the Euro Equivalent on the date that the cash payment is due. Each
Holder will be required to make the foregoing election, by completing, executing
and returning to the Issuer, within ten (10) Business Days of receipt, that
portion of the Issuer's Notice of Redemption which contains election
instructions for each Holder with respect
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to its Notes. Subject to the next succeeding sentence, failure to timely return
a Notice of Redemption shall be deemed an election to take cash. Notwithstanding
any such election, each Holder will retain its right to convert some or all of
its Notes into Ordinary Shares, by exercising its Conversion Rights up to the
close of business on the Business Day preceding the Redemption Date.
7. Notice of Redemption. Notice of redemption will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Definitive Registered Notes at such Holder's registered address as it
appears in the Register.
8. Repurchase upon Certain Business Combinations. If following
the first public announcement by the Company of a proposed Business Combination
the average Closing Price of the Ordinary Shares for the fifteen (15) Trading
Days beginning on the first full Trading Day following such public announcement
is less than the Conversion Price then in effect, the Issuer shall mail a notice
to the Trustee, the Paying and Conversion Agents, the Registrar and each Holder
stating that a Business Combination has been proposed and a meeting of Holders
is being called pursuant to Section 4.08 and Article XIII of the Indenture for
the purpose of voting on whether the Issuer should be required, subject to the
consummation of the Business Combination, to (i) repurchase all of the Notes
then outstanding, in cash at a purchase price equal to 101% of the principal
amount thereof, or (ii) convert all of the Notes then outstanding into Ordinary
Shares of the Issuer valuing all outstanding Notes at 101% of their principal
amounts for these purposes.
A notice of such proposed Business Combination will be mailed promptly after
determination of whether or not a Mandatory Vote is required to the Holder of
this Note and to each Holder of Definitive Registered Notes at such Holder's
address as it appears in the Register. On and after the Consummation Date,
interest will cease to accrue on the Notes or portions of Notes surrendered for
purchase unless the Issuer defaults in the payment of the Mandatory Repurchase
Payment, Ordinary Shares or securities or other consideration to which Holders
are otherwise entitled to as a result of such Business Combination.
9. Conversion Right. Subject to and upon compliance with the
provisions of Article VI, at the option of the Holder thereof, any Note may be
converted, in whole, or in part in multiples of Euro 1.00 principal amount, into
fully paid and non-assessable Ordinary Shares issuable upon conversion of the
Notes (the "Conversion Right"), at the Conversion Price in effect at the
Conversion Date, until and including, but not after the close of business on the
Stated Maturity, unless such Note or some portion thereof shall have been called
for redemption or delivered for repurchase prior to the Stated Maturity and no
default is made in making due provision for the payment of the redemption price
or the Mandatory Repurchase Payment or Mandatory Conversion in accordance with
the terms of the Indenture, in which case, with respect to each Note or portion
thereof as has been so called for redemption or delivered for repurchase, such
Note or portion thereof may be so converted until and including, but not after,
the close of business on the Business Day prior to the Redemption Date or
Consummation Date, as applicable, for such Note, unless the Issuer subsequently
fails to pay the applicable redemption price or make the Mandatory Repurchase
Payment or Mandatory Conversion, as the case may be. For the avoidance of doubt,
Notes which have been called for redemption or delivered for repurchase and in
respect of which a Conversion Right has been exercised by the aforementioned
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deadlines, shall be converted into Ordinary Shares as promptly as practicable
following exercise of the Conversion Right, notwithstanding the waiting periods
referenced in Section 6.01(b) in the Indenture.
The Issuer shall be required to honor and accommodate Conversion Notices (i) at
least once every calendar month (or portion thereof, in the case of that month
which contains the Issue Date) (each, an "Initial Conversion Period") in the
one-year period commencing on the Issue Date, provided that Conversion Notices
delivered to the Issuer on or prior to the last Business Day of each month and
with respect to which the Conversion Notice Date has occurred within such
Initial Conversion Period) need be honored by the end of the following month
(with any Conversion Notices delivered thereafter or delivered during such
Initial Conversion Period but in respect of which the Conversion Notice Date has
occurred after the end of the relevant Initial Conversion Period, to be honored
by the end of the immediately following month), and (ii) at least once every
calendar quarter, on and after the first anniversary of the Issue Date (each, a
"Subsequent Conversion Period"), provided that Conversion Notices delivered to
the Issuer on or prior to the last Business Day of that calendar quarter's end
and with respect to which the Conversion Notice Date has occurred on such
Subsequent Conversion Period need be honored by the end of the first month of
the following quarter. Notwithstanding the foregoing, the Issuer shall be
required to honor and accommodate, as promptly as practicable following receipt
of one or more Conversion Notices in any given Initial or Subsequent Conversion
Period, received from one or more Holders, relating to 10% or more of the
aggregate Principal Amount of Initial Notes originally issued, and in any event
during the month following the Conversion Notice Date relating to the last of
the Conversion Notices so received. To satisfy its obligations pursuant to
Section 6.01(b) of the Indenture, the Issuer shall be required to take all
actions, including without limitation the preparation and filing of one or more
Spanish listing prospectuses, to give effect to Conversion Notices received and
to cause the listing of Ordinary Shares on the Nuevo ▇▇▇▇▇▇▇ (or if the Ordinary
Shares shall not at the relevant time be quoted or listed thereon, on the
principal securities exchange or interdealer quotation system on which the
Ordinary Shares are then listed or quoted).
To exercise its Conversion Right, the holder of Definitive Registered Notes
must:
(i) duly complete and manually sign a Conversion Notice in the
form of Exhibit D to the Indenture (a "Conversion Notice") and deliver
(or cause to be delivered) such Conversion Notice to the Paying and
Conversion Agent;
(ii) surrender the Definitive Note to the Registrar for
cancellation;
(iii) if required, furnish appropriate endorsements and
transfer documents; and
(iv) if required but subject to Section 6.08 of the Indenture,
pay any taxes and capital, stamp, issue and registration duties arising
on the exercise of such Conversion Right, and all taxes, if any,
arising by reference to any disposal or deemed disposal of any Ordinary
Shares in connection with the exercise of such Conversion Right.
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Upon the occurrence of a Mandatory Conversion Triggering Event all Notes then
outstanding shall automatically convert into the right to receive Ordinary
Shares of the Issuer as provided in Section 6.12 of the Indenture.
The above description of the Conversion Right is qualified by reference to, and
is subject in its entirety by, the Indenture.
10. Denominations. Definitive Registered Notes are in
registered form, without coupons, and must be denominated in an amount equal to
Euro 1.00 of principal amount or an integral multiple thereof.
11. Persons Deemed Owners. The Holder of this Note shall be
treated as the owner of this Note for all purposes.
12. Unclaimed Money. If money for the payment of
principal or interest remains unclaimed for two years, the Trustee or the Paying
and Conversion Agent will pay the money back to the Issuer at its request. After
that, Holders entitled to the money must look to the Issuer for payment as
general creditors unless "abandoned property" law designates another Person.
13. Amendment, Supplement, Waiver, Etc. The Issuer and the
Trustee may, without the consent of the Holders of any outstanding Notes, amend,
waive or supplement the Indenture or the Notes for certain specified purposes,
including, among other things, curing ambiguities, defects or inconsistencies,
reducing the period between the Conversion Notice Date and the Conversion Date
(including reducing such period to zero), and making any change that does not
adversely affect the rights of any Holder. Other amendments and modifications of
the Indenture or the Notes may be made by the Issuer and the Trustee with the
consent of the Holders of not less than a majority of the principal amount of
the Notes present and voting at a meeting held according to the Indenture,
subject to certain exceptions requiring the consent of the Holders of two-thirds
of the principal amount of the Notes present and voting at a meeting held
according to the Indenture.
14. Successor Corporation. Subject to Section 5.01(a) of the
Indenture, upon any consolidation, merger or any transfer of all or
substantially all of the assets of the Issuer, the surviving entity formed by
such consolidation or into which the Issuer is merged or to which such transfer
is made shall succeed to, and be substituted for, and may exercise every right
and power of, the Issuer under the Indenture with the same effect as if such
surviving entity had been named as the Issuer therein, and thereafter, the
predecessor company (except in the case of a lease) shall be released from all
obligations and covenants under the Indenture.
15. Defaults and Remedies. The following events are "Events of
Default" for purposes of the Indenture: (i) the Issuer defaults in the payment
of principal of any Note when the same becomes due and payable, at maturity or
upon acceleration, redemption or otherwise; (ii) the Issuer defaults in the
payment of interest on any Note when the same becomes due and payable, and such
default continues for a period of 30 days; (iii) [intentionally omitted]; (iv)
the Issuer fails to redeem or repurchase Notes, as the case may be, for cash
following a redemption notice (in respect of Notes subject to a cash redemption
election) or Mandatory Repurchase Offer; (v) the Issuer or any Restricted
Subsidiary defaults in the performance of or breaches any
B-7
other covenant or agreement in the Indenture or under the Notes and the default
or breach continues for a period of 30 consecutive days after written notice by
the Trustee or the Holders of a majority of Notes present and voting at a
meeting held in accordance with the Indenture; (vi) there occurs with respect to
any issue or issues of Indebtedness of the Issuer or any Restricted Subsidiary
having an outstanding principal amount of Euro 5.0 million or more in the
aggregate for all such issues of all such Persons, whether such Indebtedness now
exists or shall hereafter be created, the following: (A) an event of default
that has caused the holders thereof to declare such Indebtedness to be due and
payable prior to its Stated Maturity and such Indebtedness has not been
discharged in full or such acceleration has not been rescinded or annulled
within 30 days following such acceleration; and/or (B) the failure to make a
principal payment at the final (but not any interim) Stated Maturity and such
defaulted payment shall not have been made, waived or extended within 30 days of
such payment default; (vii) any final judgment or order for the payment of money
in excess of Euro 5.0 million in the aggregate for all such final judgments or
orders against all such Persons shall be rendered against the Issuer or any
Restricted Subsidiary and shall not be paid or discharged, and there shall be
any period of 60 consecutive days following entry of the final judgment or order
that causes the aggregate amount for all such final judgments or orders
outstanding and not paid or discharged against all such Persons to exceed Euro
5.0 million during which a stay of enforcement of such final judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; and (viii)
certain events of bankruptcy, insolvency, reorganization or administration
affecting the Issuer or any Restricted Subsidiary.
Subject to certain limitations in the Indenture, if an Event of Default (other
than an Event of Default specified in (viii) above that occurs with respect to
the Issuer) occurs and is continuing under the Indenture, the Trustee or the
Holders representing a majority of Notes present at a meeting convened and held
in accordance with Article XIII of the Indenture, by written notice to the
Issuer (and to the Trustee if such notice is given by the Holders (the
"Acceleration Notice")), may, and the Trustee at the request of such Holders
shall, declare the Notes to be immediately due and payable at 100% of the
outstanding Principal thereof, plus accrued and unpaid interest thereon to the
date of such declaration. Upon a declaration of acceleration, such Principal and
accrued and unpaid interest shall be immediately due and payable. If an Event of
Default specified in (viii) above occurs with respect to the Issuer, the Notes
then outstanding shall ipso facto become and be immediately due and payable at
100% of the outstanding Principal thereof plus accrued and unpaid interest to
the date of such Event of Default, in each case without any declaration or other
act on the part of the Trustee or any Holder.
The Trustee may require indemnity satisfactory to it before it enforces the
Indenture or the Notes. Subject to certain limitations, Holders representing a
majority in principal amount of the Notes present and voting at a meeting as
provided in Article XIII of the Indenture may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment of principal or interest) if it
determines that withholding notice is in their interests. The Issuer must
furnish an annual compliance certificate to the Trustee.
16. Limits on Voting. Any Person or group that is the
beneficial owner of more than 25% of the Notes then outstanding, shall have such
Person's or group's voting power limited to 25% of the Notes then outstanding.
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17. Trustee Dealings with the Issuer. The Trustee, in its
individual or any other capacity, may make loans to, accept deposits from, and
perform services for the Issuer or its Affiliates, and may otherwise deal with
the Issuer or its Affiliates, as if it were not Trustee.
18. No Recourse Against Others. A trustee (and any of its
officers, directors, employees and agents), director, officer, employee,
stockholder or incorporator, as such, of the Issuer shall not have any liability
for any obligations of the Issuer under the Indenture or the Notes or for any
claim based on, in respect of or by reason of such obligations or their
creation. Each Noteholder by accepting a Note waives and releases all such
liability.
19. Discharge Prior to Redemption or Maturity. The Issuer's
obligations pursuant to the Indenture will be discharged, except for obligations
pursuant to certain sections thereof, subject to the terms of the Indenture,
upon the payment of all the Notes or upon the irrevocable deposit with the
Trustee of Euro or Government Obligations sufficient to pay when due principal
of and interest on the Notes to maturity or redemption, as the case may be.
20. Authentication. This Note shall not be valid until the
Trustee signs the certificate of authentication on the other side of this Note.
21. Abbreviations. Customary abbreviations may be used in the
name of a Holder or an assignee, such as: TEN COM (= tenants in common), TENANT
(= tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common), CUST (= Custodian), and U/G/N/A (=
Uniform Gifts to Minors Act).
The internal laws of the State of New York shall govern this Note without regard
to principles of conflict of laws.
The Issuer will furnish to any Holder upon written request and without charge a
copy of the Indenture. Requests may be made to:
JAZZTEL PLC
c/o Jazz Telecom S.A.
Avenida de Europa 14
Parque Empresarial La ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Telephone:▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Telecopier:▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
Attention: General Counsel
B-9
EXHIBIT C
FORM OF CERTIFICATE OF TRANSFER
The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Corporate Trust Administration
cc: Jazztel plc
c/o Jazz Telecom S.A.
Avendida de Europa 14
Parque Empresarial ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Re: 12.0% Convertible Notes due 2012 of Jazztel plc
-----------------------------------------------
Reference is hereby made to the Indenture, dated as of November 18, 2002 (the
"Indenture"), among Jazztel plc, as issuer (the "the Issuer"), and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
___________________, (the "Transferor") owns and proposes to transfer the
Note(s) or interest in such Note(s) specified in Annex A hereto, in the
principal amount of Euro___________ ___ (the "Transfer"), ___ to
___________________________ (the "Transferee"), as further specified in Annex A
hereto.
In connection with the Transfer, the Transferor hereby certifies that:
FOR TRANSFER OF NOTE(S) OR INTEREST IN SUCH NOTE(S) IN ACCORDANCE WITH Section
2.07(c) OR 2.07(e)(i) OF THE INDENTURE, PLEASE CHECK ITEM 1 OR 2, AS APPLICABLE.
1. [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 under the
Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the offer is not being made to a person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through a physical trading floor of an established
foreign securities exchange that is located outside the United States,
(ii) no
C-1
directed selling efforts have been made in contravention of the
requirements of Rule 903 of Regulation S under the Securities Act and
(iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
2. [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 145(d)(1). (i) The Transfer
is being effected pursuant to and in accordance with Rule 145(d)(1)
under the Securities Act and in compliance with the transfer
restrictions contained in the Indenture and all applicable securities
laws of any other jurisdiction and (ii) the restrictions on transfer
contained in the Indenture and the 144A Legend are not required in
order to maintain compliance with the Securities Act.
FOR TRANSFER OF NOTES(S) OR INTEREST IN SUCH NOTE(S) IN ACCORDANCE WITH SECTION
2.07(e)(ii) OF THE INDENTURE PLEASE CHECK ITEM 1 BELOW:
1. The undersigned confirms that it is not, and at no time during the last
three months has the undersigned been, an Affiliate (as defined in Rule
144 under the Securities Act) of the Issuer.
FOR TRANSFER OF NOTES(S) OR INTEREST IN SUCH NOTE(S) IN ACCORDANCE WITH SECTION
2.07(f) OF THE INDENTURE, PLEASE CHECK ITEM 1, 2 OR 3, AS APPLICABLE.
1. [ ] CHECK IF TRANSFER IS PURSUANT TO RULE 144A. The Transfer is being
effected pursuant to and in accordance with Rule 144A under the U.S.
Securities Act of 1933, as amended (the "Securities Act") and,
accordingly, the Transferor hereby further certifies that the
Book-Entry Interest or Definitive Registered Note is being transferred
to a Person that the Transferor reasonably believes is purchasing the
Book-Entry Interest or Definitive Registered Note for its own account,
or for one or more accounts with respect to which such Person exercises
sole investment discretion, and such Person and each such account is a
"qualified institutional buyer" within the meaning of Rule 144A in a
transaction meeting the requirements of Rule 144A and such Transfer is
in compliance with all applicable securities laws of any other
jurisdiction. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred Book-Entry Interest or
Definitive Registered Note will be subject to the restrictions on
transfer enumerated in the 144A Legend and the Securities Act.
2. [ ] CHECK IF TRANSFER IS PURSUANT TO REGULATION S. The Transfer is
being effected pursuant to and in accordance with Rule 903 under the
Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the offer is not being made to a person in the
United States and (x) at the time the buy order was originated, the
Transferee was outside the United States or such Transferor and any
Person acting on its behalf reasonably believed and believes that the
Transferee was outside the United States or (y) the transaction was
executed in, on or through a physical trading floor of an established
foreign securities exchange that is located outside the United States,
(ii) no directed selling efforts have been made in contravention of the
requirements of Rule 903 of Regulation S under the Securities Act and
(iii) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
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3. [ ] CHECK IF TRANSFER IS PURSUANT TO another valid exemption from
registration under the Securities Act and specify the exemption:
This certificate and the statements contained herein are made for your benefit
and the benefit of the Issuer.
-------------------------------
[Insert Name of Transferor]
By:
----------------------------
Name:
Title:
Dated:_________________________
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ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) [ ] a Book-Entry Interest held through Euroclear Account
No.________ in the:
(i) [ ] Non-Affiliate Global Note (ISIN ________),
or
(ii) [ ] Affiliate Global Note (ISIN ________), or
(b) [ ] a Definitive Registered Note,
2. After the Transfer, the Transferee will hold:
[CHECK ONE]
(a) [ ] a Book-Entry Interest through Euroclear Account No.________ in
the:
(i) [ ] Non-Affiliate Global Note (ISIN ________),
or
(ii) [ ] Affiliate Global Note (ISIN ________); or
(b) [ ] a Definitive Registered Note;
C-4
EXHIBIT D
FORM OF CONVERSION NOTICE
The Bank of New York
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Attention: Corporate Trust Administration (Jazztel plc, 12.0% Convertible Notes
due 2012)
cc: Jazztel plc
c/o Jazz Telecom S.A.
Avendida de Europa 14
Parque Empresarial ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇
Re: 12.0% Convertible Notes due 2012 of Jazztel plc
-----------------------------------------------
Reference is hereby made to the Indenture, dated as of November 18, 2002 (the
"Indenture"), among Jazztel plc, as issuer (the "the Issuer"), and The Bank of
New York, as trustee. Capitalized terms used but not defined herein shall have
the meanings given to them in the Indenture.
The undersigned holder of Definitive Registered Notes or Book-Entry Interests in
a Global Note hereby elects to convert the principal amount and accrued
interests of such Notes as specified below into Ordinary Shares of the Issuer
(the "Ordinary Shares") in accordance with the Indenture and the Notes.
1. The undersigned hereby elects to convert Euro________
principal amount of Notes (and the related accrued and unpaid interest therein)
held in the form of:
[CHECK ONE OF (a), (b) OR (c)]
(a) [ ] a Book-Entry Interest in the:
(i) [ ] Affiliate Global Note (ISIN ________);
(ii) [ ] Non-Affiliate Global Note (ISIN ________);
(b) [ ] a Definitive Registered Note containing a Rule 144A
Legend;
or
D-1
(c) [ ] a Definitive Registered Note that does not contain a
144A Legend.
2. Ordinary Shares issued upon conversion of (x) a Definitive
Registered Note will be issued only in the name of the Holder of such Definitive
Registered Note and (y) a Book Entry Interest in a Global Note will be credited
only to the same account in which such Book-Entry Interest is held, unless, in
the case of either the foregoing clause (x) or (y), the Company and the Transfer
Agent receive proof reasonably satisfactory to them (which may include a
certificate and an opinion of counsel) that such transfer is not prohibited by
any applicable securities laws.
3. The undersigned hereby requests that EITHER:
[COMPLETE [A] IN THE CASE OF ORDINARY SHARES TO BE
DELIVERED IN CERTIFICATED FORM AND [B] IN THE CASE
OF ORDINARY SHARES TO BE DELIVERED IN BOOK-ENTRY
FORM THROUGH EUROCLEAR]
[A] the certificates for the Ordinary Shares
(together with any other securities, property or
cash) or any cash or any payment required to be
delivered in pursuance of this Conversion Notice be
dispatched (at the undersigned's risk and expense)
to the person whose name and address is given below.
Name: _________________________
Address: _________________________
OR
[B] the Ordinary Shares to be delivered in pursuance
of this Conversion Notice be credited to the
Euroclear account in which the Book-Entry Interest
being converted is held details of which are set out
below and that any other securities property or cash
or any cash or any payment required to be delivered
in pursuance of this Conversion Notice be dispatched
(at the undersigned's risk and expense) to the
person whose name and address is given below.
Euroclear Account Number: _________________
Name: _________________________
Address: _________________________
4. If this Conversion Notice relates to Definitive Registered
Notes, the certificates representing such Notes are attached hereto. The
undersigned hereby requests that any balance of Definitive Registered Notes not
the subject of this Conversion Notice be registered in the same name as the
Definitive Registered Note presented for conversion, and
D-2
dispatched (at the undersigned's risk and expense) to, the person whose name and
address is given below.
Name: _________________________
Address: ________________________
5. The undersigned hereby acknowledges and agrees that:
If this Conversion Notice relates to Definitive Registered
Notes which contain a 144A Legend, the Ordinary Shares issued upon conversion
hereof will bear a share legend containing restrictions on transfer unless the
undersigned certifies to the effect set forth in paragraph 6(a) below and
delivers any legal opinion reasonably requested by the Issuer. The undersigned
further acknowledges and agrees that (i) the Ordinary Shares have not been and
will not be registered under the Securities Act and may not be offered, sold,
pledged or otherwise transferred except (1)(A) in an offshore transaction
meeting the requirements of Rule 903 or Rule 904 of Regulation S under the
Securities Act, (B) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 thereunder (if available) or (C) to the
Issuer or any subsidiary thereof and (2) in each case, in accordance with all
applicable securities laws of any other jurisdiction and (ii) notwithstanding
anything to the contrary in the foregoing, the Ordinary Shares may not be
deposited into any unrestricted depositary facility established or maintained by
a depositary bank unless and until such time as the Ordinary Shares may be sold
under the Securities Act without restriction.
6. In connection with the foregoing:
(a) SHARES REGISTERED IN THE UNDERSIGNED'S NAME. The
undersigned hereby certifies that the Ordinary Shares are being acquired for the
undersigned's own account without transfer and, if applicable:
[CHECK ONLY IF APPLICABLE]
[ ] CHECK IF THE UNDERSIGNED IS CONVERTING AND EXCHANGING
DEFINITIVE REGISTERED NOTES WITH A 144A LEGEND. The undersigned is not
(and during the three months preceding the conversion will not have
been) an Affiliate of the Issuer; at least two years have elapsed since
the undersigned (or any previous transferor of the undersigned's
Definitive Registered Notes that was not an Affiliate of the Issuer)
acquired such Definitive Registered Notes from the Issuer or an
Affiliate of the Issuer; the undersigned is permitted under Rule 144(k)
of the Securities Act to sell all such Definitive Registered Notes
without registration under the Securities Act; and the restrictions on
transfer contained in the 144A Ordinary Share Legend are not required
in order to maintain compliance with the Securities Act.
7. If the undersigned is an Affiliate of the Company the
undersigned acknowledges that the Ordinary Shares issued upon conversion of its
Definitive Registered Note or Book Entry Interest in a Global Note may be
transferred only pursuant to an effective registration statement under the
Securities Act or a valid exemption from such registration including Rule 144 or
Regulation S.
D-3
This certificate and the statements contained herein are for your benefit and
the benefit of the Issuer.
By:
-------------------------------
Name:
Title:
Dated: __________________________
D-4
Schedule A
Schedule of Existing Indebtedness
1. Indebtedness under the Senior Bank Credit Facility in the principal
amount of (euro)30,000,000 and obligations in respect of performance
bonds issued by the lenders under such facility in the amount of
(euro)24,521,294.
2. Indefeasible Rights of Use (Capitalized Leases) with Renfe, Iberdrola,
Union Fenosa, FMB and Telmonde that have an aggregate liability,
excluding interest, of (euro)55,700,000 provided that in the event the
aggregate liability, excluding interest, under such arrangements
exceeds (euro)55,700,000, the amount of such excess will be deemed to
be Permitted Indebtedness so long as any excess falls within the limits
of Indebtedness permitted under the definition of Permitted
Indebtedness herein.
3. Indebtedness owed to the following persons by Jazz Telecom S.A.
Person Amount (Euro in million)
------ ------------------------
Bancaja 3.8
La Caixa 1.1
Barclays 2.7
BBVA 5.8
Credito y Caucion 0.7
Sabadell 0.8
4. Indebtedness owed to the following persons by Banda26 S.A.
Person Amount (Euro in million)
------ ------------------------
Barclays 19.2
Sabadell 9.6
5. Indebtedness owed to the following persons by Adatel
Person Amount (Euro in million)
------ ------------------------
Mapfre 0.5
Banco ▇▇▇▇▇▇▇ 0.2
6. Indebtedness owed to the following persons by Jazztel Portugal
Person Amount (Euro in million)
------ ------------------------
Banco Portugues do Atlantico 1.3
Banco Comercial Portugues 0.1
7. Indebtedness owed to the following persons by CCS
Person Amount (Euro in million)
------ ------------------------
Banco Sabadell 1.3
Banco Atlantico 0.2
BBVA 0.1
Banco Atlantico 1.2
Banco Popular 0.3
Caixa Sabadell 0.9
Banc Sabadell 2.4
BBVA 0.5
ICF 6.6
CTDI 0.2
Minist.Ciencia y Tecnol. 1.0
