1
Exhibit 4.1
Execution Copy
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COMMUNICATIONS INTERNATIONAL, INC.
SERIES A AND SERIES B
9 1/2% SENIOR DISCOUNT NOTES DUE 2005
INDENTURE
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Dated as of March 18, 1998
THE CHASE MANHATTAN BANK
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Trustee
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CROSS-REFERENCE TABLE*
(a) Trust Indenture Act
Indenture Section
310 (a)(1)..............................................................7.10
(a)(2) .................................................................7.10
(a)(3)..................................................................N.A.
(a)(4)..................................................................N.A.
(a)(5)..................................................................7.10
(i)(b)..................................................................7.10
(ii)(c).................................................................N.A.
311(a)..................................................................7.11
(b) 7.11
(iii(c).................................................................N.A.
312 (a).................................................................2.05
(b) 11.03
(iv)(c).................................................................11.03
313(a)..................................................................7.06
(b)(1)..................................................................N.A.
(b)(2)..................................................................7.07
(v)(c)..................................................................7.06;
11.02
(vi)(d).................................................................7.06
314(a)..................................................................4.03;
11.02
(A)(b)..................................................................N.A.
(c)(1)..................................................................11.04
(c)(2)..................................................................11.04
(c)(3)..................................................................N.A.
(d).....................................................................N.A.
(vii)(e)................................................................11.05
(f).....................................................................NA
315 (a).................................................................7.01
(b) 7.05,
11.02
(A)(c)..................................................................7.01
(d) 7.01
(e) 6.11
316 (a)(last sentence)..................................................2.09
(a)(1)(A)...............................................................6.05
(a)(1)(B)...............................................................6.04
(a)(2)..................................................................N.A.
(b)6.07
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(B)(c)..................................................................2.12
317 (a)(1)..............................................................6.08
(a)(2)..................................................................6.09
(b) 2.04
318 (a).................................................................11.01
(b) N.A.
(c) 11.01
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE........................1
Section 1.01. Definitions..................................................1
Section 1.02. Other Definitions...........................................18
Section 1.03. Trust Indenture Act Definitions.............................19
Section 1.04. Rules of Construction.......................................19
ARTICLE 2. THE NOTES........................................................20
Section 2.01. Form and Dating............................................20
Section 2.02. Execution and Authentication................................20
Section 2.03. Registrar and Paying Agent..................................21
Section 2.04. Paying Agent to Hold Money in Trust.........................21
Section 2.05. Holder Lists................................................22
Section 2.06. Transfer and Exchange.......................................22
Section 2.07. Replacement Notes...........................................33
Section 2.08. Outstanding Notes...........................................33
Section 2.09. Treasury Notes..............................................33
Section 2.10. Temporary Notes.............................................33
Section 2.11 Cancellation.................................................34
Section 2.12. Defaulted Interest..........................................34
Section 2.13. CUSIP and ISIN Numbers......................................34
ARTICLE 3. REDEMPTION AND PREPAYMENT........................................34
Section 3.01. Notices to Trustee..........................................34
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Section 3.02. Selection of Notes to Be Redeemed...........................35
Section 3.03. Notice of Redemption........................................35
Section 3.04. Effect of Notice of Redemption..............................36
Section 3.05. Deposit of Redemption Price.................................36
Section 3.06. Notes Redeemed in Part......................................36
Section 3.07. Optional Redemption.........................................36
Section 3.08. Mandatory Redemption........................................37
Section 3.09. Offer to Purchase by Application of Excess Proceeds.........37
ARTICLE 4. COVENANTS........................................................39
Section 4.01. Payment of Notes............................................39
Section 4.02. Maintenance of Office or Agency.............................41
Section 4.03. Reports.....................................................42
Section 4.04. Compliance Certificate......................................42
Section 4.05. Taxes.......................................................43
Section 4.06. Stay, Extension and Usury Laws..............................43
Section 4.07. Restricted Payments.........................................44
Section 4.08. Dividend and Other Payment Restrictions Affecting
Subsidiaries................................................45
Section 4.09. Incurrence of Indebtedness and Issuance of
Disqualified Stock .........................................46
Section 4.10. Asset Sales.................................................48
Section 4.11. Transactions with Affiliates................................49
Section 4.12. Liens.......................................................50
Section 4.13. Limitations on Line of Business.............................50
Section 4.14. Corporate Existence.........................................50
Section 4.15. Offer to Repurchase Upon Change of Control..................50
Section 4.16. Limitation on Status as Investment Company..................52
Section 4.17. Limitation on Sale and Leaseback Transactions...............52
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Section 4.18. Payments for Consent........................................52
ARTICLE 5. SUCCESSORS.......................................................52
Section 5.01. Merger, Consolidation, or Sale of Assets....................52
Section 5.02. Successor Corporation Substituted...........................53
ARTICLE 6. DEFAULTS AND REMEDIES............................................53
Section 6.01. Events of Default...........................................53
Section 6.02. Acceleration................................................55
Section 6.03. Other Remedies..............................................55
Section 6.04. Waiver of Past Defaults.....................................55
Section 6.05. Control by Majority.........................................56
Section 6.06. Limitation on Suits.........................................56
Section 6.07. Rights of Holders of Notes to Receive Payment...............56
Section 6.08. Collection Suit by Trustee..................................57
Section 6.09. Trustee May File Proofs of Claim............................57
Section 6.10. Priorities..................................................57
Section 6.11. Undertaking for Costs.......................................58
Section 6.12. Trustee May Enforce Claims Without Possession of Notes......58
Section 6.13. Rights and Remedies Cumulative..............................58
ARTICLE 7. TRUSTEE..........................................................58
Section 7.01. Duties of Trustee...........................................58
Section 7.02. Rights of Trustee...........................................59
Section 7.03. Individual Rights of Trustee................................60
Section 7.04. Trustee's Disclaimer........................................60
Section 7.05. Notice of Defaults..........................................60
Section 7.06. Reports by Trustee to Holders of the Notes..................60
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Section 7.07. Compensation and Indemnity..................................61
Section 7.08. Replacement of Trustee......................................61
Section 7.09. Successor Trustee by Merger, etc............................62
Section 7.10. Eligibility; Disqualification...............................62
Section 7.11. Preferential Collection of Claims Against Company...........63
ARTICLE 8. LEGAL DEFEASANCE AND COVENANT DEFEASANCE.........................63
Section 8.01. Option to Effect Legal Defeasance or Covenant Defeasance....63
Section 8.02. Legal Defeasance and Discharge..............................63
Section 8.03. Covenant Defeasance.........................................63
Section 8.04. Conditions to Legal or Covenant Defeasance..................64
Section 8.05. Deposited Money and Government Securities to be Held in
Trust; Other Miscellaneous Provisions.......................65
Section 8.06. Repayment to Company........................................66
Section 8.07. Reinstatement...............................................66
ARTICLE 9. AMENDMENT, SUPPLEMENT AND WAIVER.................................66
Section 9.01. Without Consent of Holders of Notes.........................66
Section 9.02. With Consent of Holders of Notes............................67
Section 9.03. Compliance with Trust Indenture Act.........................68
Section 9.04. Revocation and Effect of Consents...........................68
Section 9.05. Notation on or Exchange of Notes............................68
Section 9.06. Trustee to Sign Amendments, etc.............................69
ARTICLE 10. MISCELLANEOUS...................................................69
Section 10.01. Trust Indenture Act Controls...............................69
Section 10.02. Notices....................................................69
Section 10.03. Communication by Holders of Notes with Other Holders of
Notes......................................................70
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Section 10.04. Certificate and Opinion as to Conditions Precedent.........70
Section 10.05. Statements Required in Certificate or Opinion..............71
Section 10.06. Rules by Trustee and Agents................................71
Section 10.07. No Personal Liability of Directors, Officers, Employees and
Stockholders...............................................71
Section 10.08. Governing Law..............................................71
Section 10.09. No Adverse Interpretation of Other Agreements..............71
Section 10.10. Successors.................................................72
Section 10.11. Severability...............................................72
Section 10.12. Counterpart Originals......................................72
Section 10.13. Table of Contents, Headings, etc...........................72
EXHIBITS
Exhibit A FORM OF NOTE
Exhibit B FORM OF CERTIFICATE OF TRANSFER
Exhibit C FORM OF CERTIFICATE OF EXCHANGE
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INDENTURE dated as of March 18, 1998 between Cellular Communications
International, Inc., a Delaware corporation (the "Company"), and The Chase
Manhattan Bank, as trustee (the "Trustee").
The Company and the Trustee agree as follows for the benefit of each
other and for the equal and ratable benefit of the Holders of the 9 1/2% Series
A Senior Discount Notes due 2005 (the "Series A Notes") and the 9 1/2% Series B
Senior Discount Notes due 2005 (the "Series B Notes" and, together with the
Series A Notes, the "Notes"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"144A Global Note" means a global note in the form of Exhibit A
hereto bearing the Global Note Legend and the Private Placement Legend and
deposited with or on behalf of, and registered in the name of, the Depositary or
its nominee that will be issued in a denomination equal to the outstanding
principal amount at maturity of the Notes sold in reliance on Rule 144A.
"Accreted Value" means, as of any date of determination, the sum of
(a) the initial offering price to the public of each Note and (b) the portion of
the excess of the principal amount at maturity of each Note over such initial
public offering price that shall have been amortized through such date, such
amount to be so amortized on a daily basis and compounded semi-annually on each
April 1 and October 1 at the rate of 9 1/2% per annum from the date of issuance
of the Notes through the date of determination. The Accreted Value of any Note
on or after the Full Accretion Date shall be equal to 100% of its stated
principal amount at maturity.
"Acquired Debt" means, with respect to any specified Person: (i)
Indebtedness of any other Person existing at the time such other Person merged
with or into or became a Restricted Subsidiary of such specified Person,
including Indebtedness incurred in connection with, or in contemplation of, such
other Person merging with or into or becoming a Subsidiary of such specified
Person and (ii) Indebtedness encumbering any asset acquired by such specified
Person.
"Affiliate" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided, however,
that (i) holding office as an executive officer or director of a Person or (ii)
beneficial ownership of 10% or more of the equity securities of a Person, either
individually or as part of a group, shall be deemed to be control.
"Agent" means any Registrar, Paying Agent or co-registrar.
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"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 Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"Asset Sale" means the sale, lease, conveyance or other disposition
of any assets outside the normal course of business other than a sale of Cash
Equivalents for cash (including, without limitation, by way of a Sale/Leaseback
Transaction), whether in a single transaction or a series of related
transactions, (a) that have a fair market value in excess of $250,000, or (b)
for net proceeds in excess of $250,000. Notwithstanding the foregoing, the
following will not be deemed to be Asset Sales: (i) a transfer of assets by the
Company to a Wholly Owned Restricted Subsidiary of the Company or by a Wholly
Owned Restricted Subsidiary of the Company to the Company or to another Wholly
Owned Restricted Subsidiary of the Company and (ii) the exchange by the Company
or a Restricted Subsidiary of the Company of assets (other than direct or
indirect interests in Omnitel or OPI) for interests in a Related Business if the
Company receives an opinion from an investment banking firm of national standing
with experience in evaluating transactions similar to such transaction that such
exchange is fair to the Company from a financial point of view and the Company's
Board of Directors determines that such exchange is in the best interests of the
Company; provided that the sale, lease, conveyance or other disposition of all
or substantially all of the assets of the Company will be governed by the
provisions of Section 4.15 and 5.01 hereof and not by the provisions of the
Asset Sale covenant.
"Attributable Debt" in respect of a Sale/Leaseback Transaction
means, as at the time of determination, the present value (discounted at the
interest rate borne by the Notes) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
Sale/Leaseback Transaction (including any period for which such lease has been
extended).
"Bankruptcy Law" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"Basket Investments" has the meaning specified in the definition of
Permitted Investments.
"Board of Directors" means the Board of Directors of the Company, or
any authorized committee of the Board of Directors.
"Business Day" means each day which is not a legal holiday in any of
London, New York and Luxembourg.
"Capital Lease Obligation" means, at the time any determination
thereof is to be made, the amount of the liability in respect of a capital lease
that would at such time be required to be capitalized on the balance sheet in
accordance with GAAP.
"Capital Stock" means any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate stock or similar
interests in any other form of entity, including, without limitation, with
respect to partnerships, partnership interests (whether general or limited) and
any other interest or participation that confers on a Person the right to
receive a share of the profits and losses of, or distribution of assets of, such
partnership.
"Cash Equivalents" means, with respect to any Person, (i) U.S.
dollars, (ii) other currencies in an amount not to exceed the amount of
Indebtedness or contractual obligations of such Person to be
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incurred in those currencies not otherwise "hedged" through Hedging Obligations,
(iii) Government Securities, (iv) certificates of deposit and eurodollar time
deposits with maturities of six months or less from the date of acquisition,
bankers' acceptances with maturities not exceeding six months and overnight bank
deposits, in each case with any domestic commercial bank having capital and
surplus in excess of $500 million and a ▇▇▇▇▇ Bank Watch Rating of "B" or
better, (v) repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (iii) and (iv) entered
into with any financial institution meeting the qualifications specified in
clause (iv) above and (vi) commercial paper having the highest rating obtainable
from ▇▇▇▇▇'▇ Investors Service, Inc. or Standard & Poor's Corporation and in
each case maturing within six months after the date or acquisition, provided,
that with respect to any Non-Domestic Person, Cash Equivalents shall also mean
those investments that are comparable to clauses (iv) through (vi) above in such
Person's country of organization or country where it conducts business
operations.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means (i) the sale, lease, exchange or other
transfer of all or substantially all of the assets of the Company to any
"person" or "group" (within the meaning of Sections 13(d)(3) and 14(d)(2) of the
Exchange Act or any successor provision to either of the foregoing, including
any group acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(i) under the Exchange Act) other
than a Wholly Owned Restricted Subsidiary of the Company or one or more
Permitted Holders, (ii) the merger or consolidation of the Company with or into
another corporation or the merger of another corporation into the Company with
the effect that either (A) immediately after such transaction any "person" or
"group" (as so defined) shall have become the beneficial owner of securities of
the surviving corporation of such merger or consolidation representing a
majority of the combined voting power of the outstanding securities of the
surviving corporation ordinarily having the right to vote in the election of
directors or (B) the securities of the Company that are outstanding immediately
prior to such transaction and which represent 100% of the combined voting power
of the securities of the Company ordinarily having the right to vote in the
election of directors are changed into or exchanged for cash, securities or
property, unless pursuant to such transaction such securities are changed into
or exchanged for, in addition to any other consideration, securities of the
surviving corporation that represent immediately after such transaction, at
least a majority of the combined voting power of the securities of the surviving
corporation ordinarily having the right to vote in the election of directors,
(iii) any "person" or "group" (as so defined) becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 50 percent of the
total voting power of all classes of the voting stock of the Company ordinarily
having the right to vote in the election of directors calculated on a fully
diluted basis or (iv) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Company's Board of Directors
(together with any new directors whose election or appointment by such board or
whose nomination for election by the shareholders of the Company was approved by
a vote of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the Company's Board of Directors then in office; provided, that no
Change of Control will be deemed to occur pursuant to this section if the Notes
have a rating of at least BBB- by S&P or a rating of at least Baa3 by Moody's
for a period of at least 30 consecutive days, beginning on the date of such
event (which period will be extended up to 90 additional days for as long as the
rating of the Notes are under publicly announced consideration for possible
downgrading by the applicable rating agency).
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"Closing Price" means, on any Trading Day with respect to any share
of Capital Stock, the last reported sale price regular way for a share of such
Capital Stock or, in case no such reported sale takes place on such day, the
reported closing bid price regular way, in either case on the New York Stock
Exchange or, if such shares of Capital Stock are not listed or admitted to
trading on such Exchange, on the principal national securities exchange on which
such shares are listed or admitted to trading or, if not listed or admitted to
trading on any national securities exchange, on The Nasdaq Stock Market National
Market or, if such shares are not listed or admitted to trading on any national
securities exchange or quoted on such Market but the issuer is a "Foreign
Issuer" (as defined in Rule 3b-4(b) under the Exchange Act) and the principal
securities exchange on which such shares are listed or admitted to trading is a
"Designated Offshore Securities Market" (as defined in Rule 902(a) under the
Securities Act), the reported closing bid price regular way on such principal
exchange, or, if such shares are not listed or admitted to trading on any
national securities exchange or quoted on such automated quotation system and
the issuer and principal securities exchange do not meet such requirements, the
closing bid price in the over-the-counter market as furnished by any New York
Stock Exchange member firm that is selected from time to time by the Company for
that purpose and is reasonably acceptable to the Trustee.
"Company" means Cellular Communications International, Inc., and any
and all successors thereto.
"Consolidated Cash Flow" means, with respect to any Person for any
period, the Consolidated Net Income of such Person for such period plus (a) an
amount equal to any extraordinary loss of such Person or any of its Restricted
Subsidiaries plus any net loss realized in connection with an Asset Sale by such
Person or any of its Restricted Subsidiaries (to the extent such losses were
deducted in computing such Consolidated Net Income), plus (b) provision for
taxes based on income or profits of such Person and its Restricted Subsidiaries
for such period, to the extent such provision for taxes was included in
computing Consolidated Net Income, plus (c) consolidated interest expense of
such Person and its Restricted Subsidiaries for such period, whether paid or
accrued (including amortization of original issue discount, noncash interest
payments and the interest component of any payments associated with Capital
Lease Obligations and net payments (if any) pursuant to Hedging Obligations), to
the extent such expense was deducted in computing Consolidated Net Income, plus
(d) depreciation and amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent such depreciation and amortization were deducted in
computing Consolidated Net Income and minus (e) any non-cash items that increase
Net Income, in each case, on a consolidated basis and determined in accordance
with GAAP. Notwithstanding the foregoing, any item set forth in clauses (a)
through (d) of the preceding sentence shall be added to Consolidated Net Income
to compute Consolidated Cash Flow of such Person only to the extent (and in the
same proportion) that the Net Income of such Subsidiary was included in
calculating the Consolidated Net Income of such Person and only if a
corresponding amount would be permitted at the date of determination to be
dividended to such Person by such Subsidiary without prior approval (that has
not been obtained), pursuant to the terms of its charter and all agreements,
instruments, judgments, decrees, orders, statutes, rules and governmental
regulations applicable to that Subsidiary or its stockholders. In addition, for
purposes of computing Consolidated Cash Flow, (i) acquisitions that have been
made by the Company or any of its Restricted Subsidiaries, including all mergers
and consolidations and including any related financing transactions, during the
most recently completed four full fiscal quarters for which financial statements
are available or subsequent to such four-quarter reference period and on or
prior to the date on which the calculation of the Consolidated Cash Flow is made
(the "Calculation Date") shall be deemed to have occurred on the first day of
the four-quarter reference period, and (ii) the
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Consolidated Cash Flow attributable to discontinued operations, as determined in
accordance with GAAP, and operations or businesses disposed of on or prior to
the Calculation Date, shall be excluded.
"Consolidated Debt" means, with respect to any Person as of any date
of determination, the aggregate amount of Indebtedness and Disqualified Stock of
such Person and its Restricted Subsidiaries outstanding as of such date of
determination, determined on a consolidated basis in accordance with GAAP (but
excluding Indebtedness of Unrestricted Subsidiaries or Unrestricted Affiliates,
whether or not such Subsidiaries or Affiliates would be consolidated in
accordance with GAAP), provided, that, for purposes of calculating the Company's
Consolidated Debt as a percentage of the Company's Total Market Capitalization,
all Project Financing of the Company's Restricted Subsidiaries that has not been
Guaranteed by the Company shall be excluded in calculating the amount of such
Consolidated Debt and the amount of such Total Market Capitalization.
"Consolidated Debt to Consolidated Cash Flow Ratio" means, as at any
date of determination, the ratio of the Consolidated Debt of the Company as of
such date to the Consolidated Cash Flow of the Company for the most recently
completed four full fiscal quarters for which internal financial statements are
available as of such date of determination.
"Consolidated Invested Equity Capital" means, with respect to any
Person as of any date, the sum of the Invested Equity Capital of such Person as
of such date and, without duplication, the Invested Equity Capital of each of
its Restricted Subsidiaries and Restricted Affiliates (and their Restricted
Subsidiaries) as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Restricted Subsidiary or
Restricted Affiliate (or their Restricted Subsidiaries) of such Person shall not
include any amounts that would be included in the Consolidated Invested Equity
Capital of any equity owner of such Restricted Subsidiary or Restricted
Affiliate, to the extent that such amounts were utilized by such equity owner
prior to such date to permit the incurrence of Project Financing pursuant to
clause (f) of the second paragraph of the covenant entitled "Incurrence of
Indebtedness and Issuance of Disqualified Stock." For example, if a direct
Restricted Subsidiary of the Company has Consolidated Invested Equity Capital of
$100 and incurs $200 of Project Financing, then a direct or indirect Restricted
Subsidiary (or a Restricted Affiliate) of such first Restricted Subsidiary will
not be deemed to have any Invested Equity Capital based on contributions or
loans to it by such first Restricted Subsidiary. In addition, the Invested
Equity Capital of a Restricted Subsidiary or Restricted Affiliate of a Person
will never be considered to be greater than the Invested Equity Capital of such
Person, except as a result of contributions of Invested Equity Capital to such
Restricted Subsidiary or Restricted Affiliate by third parties.
"Consolidated Net Income" means, with respect to any Person for any
period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided, that (i) the Net Income of any Person that is not a
Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to such Person or a Wholly Owned Restricted
Subsidiary thereof; (ii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded; (iii) the cumulative effect of a change in accounting principles
shall be excluded, and (iv) the Net Income of any Unrestricted Subsidiary of
such Person shall be excluded, whether or not distributed to such Person or one
of its Subsidiaries.
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"Consolidated Net Worth" means, with respect to any Person as of any
date, the sum of (i) the consolidated equity of the common stockholders of such
Person and its consolidated Restricted Subsidiaries as of such date plus (ii)
the respective amounts reported on such Person's balance sheet as of such date
with respect to any series of preferred stock (other than Disqualified Stock).
"Convertible Subordinated Note Indenture" means that certain
indenture, dated as of the date hereof, between the Company and The Chase
Manhattan Bank, as trustee, as amended or supplemented from time to tome,
relating to the Convertible Subordinated Notes.
"Convertible Subordinated Notes" means the Company's 6 % Convertible
Subordinated Notes due 2005 issued pursuant to the Convertible Subordinated Note
Indenture.
"CoreComm" means CoreComm Incorporated.
"Corporate Trust Office of the Trustee" shall be at the address of
the Trustee specified in Section 10.02 hereof or such other address as to which
the Trustee may give notice to the Company.
"Credit Facility" means one or more credit facilities (whether a
term or a revolving facility) of the type customarily entered into with banks,
between the Company or any of its Restricted Subsidiaries, Restricted Affiliates
or Restricted Subsidiaries of Restricted Affiliates, and any banks or other
lenders (and any renewals, refundings, extension or replacements of any such
credit facilities).
"Currency Agreement" means in respect of a Person any foreign
exchange contract, currency swap agreement or other similar agreement as to
which such Person is a party or a beneficiary.
"Custodian" means the Trustee, as custodian with respect to the
Notes in global form, or any successor entity thereto.
"Damages Payment Date" means, in connection with the payment of
Liquidated Damages, each April 1 and October 1.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name
of the Holder thereof and issued in accordance with Section 2.06 hereof, in the
form of Exhibit A hereto except that such Note shall not bear the Global Note
Legend and shall not have the "Schedule of Exchanges of Interests in the Global
Note" attached thereto.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Indenture.
"Disqualified Stock" means any Capital Stock that, by its terms (or
by the terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is or could be
mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or
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redeemable at the option of the Holder thereof, in whole or in part, on or prior
to the maturity date of the Notes.
"EC" means the European Communities.
"ECU" means the ECU referred to in Article 109g of the Treaty
establishing the EC, as amended by the Treaty on European Union and as defined
in Council Regulation (EC) No. 3320/94, that is from time to time used as the
unit of account of the EC (changes to the ECU may be made by the EC, in which
event the ECU will change accordingly).
"Equity Interests" means Capital Stock and all warrants, options or
other rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
"Equity Offering Proceeds" means the aggregate amount of cash
proceeds (in U.S. dollars or the equivalent value in one or more foreign
currencies) received by the Company from a public or private offering of Equity
Interests of the Company (other than Disqualified Stock and other than Equity
Interests sold to a Subsidiary of the Company) or of debt securities convertible
or exchangeable into Equity Interests of the Company (but only after and to the
extent they have been so converted or exchanged), net of any expenses or
underwriting commission incurred by the Company in connection with such
offering.
"Euroclear" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels office, as operator of the Euroclear system.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means the Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration
Rights Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Existing Indebtedness" means Indebtedness of the Company and its
Restricted Subsidiaries in existence on the date hereof until such amounts are
repaid.
"Full Accretion Date" means April 1, 2003.
"GAAP" means generally accepted accounting principles set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as have been approved by a significant segment
of the accounting profession in the United States, which are in effect on the
date of this Indenture.
"Global Note" means the Restricted Global Note and the Unrestricted
Global Note, in the form of Exhibit A hereto issued in accordance with Section
2.01, 2.06(b)(iv), 2.06(d)(ii) or 2.06(f) hereof.
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"Global Note Legend" means the legend set forth in Section
2.06(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"Government Securities" means securities that are (a) direct
obligations of the United States of America, United Kingdom, Italy or Germany,
for the timely payment of which their full faith and credit is pledged or (b)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America, United Kingdom, Italy or
Germany, the timely payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States of America, United Kingdom,
Italy or Germany, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian
with respect to any such Government Security or a specific payment of principal
of or interest on any such Government Security held by such custodian for the
account of the holder of such depository receipt; provided, that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Security or the specific payment
of principal of or interest on the Government Security evidenced by such
depository receipt.
"Guarantee" means a guarantee (other than by endorsement of
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part of
any Indebtedness. The amount of any Guarantee shall be equal to the maximum
potential liability in respect of the Guarantee, even if less than the
Indebtedness supported by such Guarantee.
"Hedging Obligations" of any Person means the obligations of such
Person pursuant to any Interest Rate Agreement or Currency Agreement.
"Holder" means a Person in whose name a Note is registered.
"Implied POP Senior Indebtedness" means, as of any time of
determination, the product of (a) $40.00 multiplied by (b) 58,000,000 multiplied
by (c) the Percentage Interest in OPI as of such time.
"Implied POP Subordinated Indebtedness" means, as of any time of
determination, the product of (a) $12.50 multiplied by (b) 58,000,000 multiplied
by (c) the Percentage Interest in OPI as of such time.
"Indebtedness" means, with respect to any Person on any date of
determination (without duplication), (i) the principal of and premium (if any)
in respect of (A) indebtedness of such Person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar instruments
for the payment of which such Person is responsible or liable; (ii) all Capital
Lease Obligations of such Person and all Attributable Debt in respect of
Sale/Leaseback Transactions entered into by such Person; (iii) all obligations
of such Person issued or assumed as the deferred purchase price of property, all
conditional sale obligations of such Person and all obligations of such Person
under any title retention agreement (but excluding trade accounts payable
arising in the ordinary course of business); (iv) all obligations of such Person
for the reimbursement of any obligor on any letter of credit, banker's
acceptance or similar credit transaction (other than obligations with respect to
letters of credit securing obligations (other than obligations described in (i)
through (iii) above) entered into in the ordinary course of business of such
Person to the extent such letters of credit are not drawn upon or, if and to the
extent drawn upon, such
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drawing is reimbursed no later than the third business day following receipt by
such Person of a demand for reimbursement following payment on the letter of
credit); (v) the amount of all obligations of such Person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock; (vi) all
obligations of the type referred to in clauses (i) through (v) of other Persons
and all dividends of other Persons for the payment of which, in either case,
such Person is responsible or liable, directly or indirectly, as obligor,
guarantor or otherwise, including by means of any Guarantee; (vii) all
obligations of the type referred to in clauses (i) through (vi) of other Persons
secured by any Lien on any property or asset of such Person (whether or not such
obligation is assumed by such Person, but excluding Non-Recourse Pledges in
connection with Project Financings), the amount of such obligation being deemed
to be the lesser of the value of such property or assets or the amount of the
obligation so secured and (viii) to the extent not otherwise included in this
definition, Hedging Obligations of such Person, provided that each of the
foregoing, where applicable, shall be calculated in accordance with US GAAP. The
amount of Indebtedness of any Person at any date shall be the outstanding
balance at such date of all unconditional obligations as described above and the
maximum liability, upon the occurrence of the contingency giving rise to the
obligation, of any contingent obligations at such date.
"Indenture" means this Indenture, as amended or supplemented from
time to time.
"Indirect Participant" means a Person who holds a beneficial
interest in a Global Note through a Participant.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or arrangement designed
to protect the Company or any Restricted Subsidiary against fluctuations in
interest rates.
"Invested Equity Capital" means, with respect to any Person as of
any date, the sum of (i) the total dollar amount contributed in cash plus the
value of all property contributed (valued at the lower of fair market value at
the time of contribution, determined in good faith by the Company's Board of
Directors, or the book value of such property at the time of contribution on the
books of the Person making such contribution) to such Person since the date of
its creation in the form of common equity, plus, without duplication, (ii) the
total dollar amount contributed in cash plus the value of all property
contributed (valued at the lower of fair market value at the time of
contribution, determined in good faith by the Company's Board of Directors, or
the book value of such property at the time of contribution on the books of the
Person making such contribution) to such Person since the date of its creation
by the Company or a Wholly Owned Restricted Subsidiary of the Company in
consideration of the issuance of preferred equity or Indebtedness, less (iii)
the fair market value of all interest, dividends and other distributions (in
whatever form and however designated) made by such Person since the date of its
creation to the holders of its common equity (and their Affiliates), provided
that in no event shall the aggregate amount of interest, dividends and other
distributions made to any holder of common equity of a Person (or its
Affiliates) operate to reduce the Invested Equity Capital of such Person by more
than the total contributions to such Person (per clauses (i) and (ii) above) by
such equity holder (and its Affiliates), and less (iv) the total amount of
Basket Investments (measured as of the date made but without giving effect to
any proration) made by such Person or any of its Restricted Subsidiaries or
Restricted Affiliates since the date hereof that are outstanding as of such
date.
"Investment" means, with respect to any Person, any investment by
such Person in other Persons (including Affiliates of such Person) in the form
of loans (including Guarantees), advances
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(excluding commission, travel and similar advances to officers and employees
made in the ordinary course of business), capital contributions, purchases or
other acquisitions for consideration of Indebtedness, Equity Interests or other
securities, and all other items that are or would be classified as investments
on a balance sheet prepared in accordance with GAAP. Except as otherwise
specified, Investments will be valued as of the date made for all purposes under
this Indenture.
"Letter of Transmittal" means the letter of transmittal to be
prepared by the Company and sent to all Holders of the Notes for use by such
Holders in connection with the Exchange Offer.
"License" means that certain GSM cellular telephone license awarded
to OPI by the Italian Government.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law
(including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction).
"Liquidated Damages" means all liquidated damages then owing
pursuant to Section 5 of the Registration Rights Agreement.
"Minority Owned Affiliate" of any specified Person means any other
Person in which an Investment has been made by the specified Person other than a
direct or indirect Subsidiary of the specified Person.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. or, if ▇▇▇▇▇'▇
Investors Service, Inc. shall cease rating debt securities having a maturity at
original issuance of at least one year and such ratings businesses shall have
been transferred to a successor Person, such successor Person; provided, that if
▇▇▇▇▇'▇ Investors Service, Inc. ceases rating debt securities having a maturity
at original issuance of at least one year and its rating business with respect
thereto shall not have been transferred to any successor Person, then "Moody's"
shall mean any other nationally recognized rating agency (other than S&P) that
rates debt securities having a maturity at original issuance of at least one
year and that shall have been designated by the Company by a written notice
given to the Trustee.
"Net Income" means, with respect to any Person, the net income
(loss) of such Person, determined in accordance with GAAP and before any
reduction in respect of preferred stock dividends, excluding, however, (i) any
gain (but not loss), together with any related provision for taxes on such gain
(but not loss), realized in connection with (a) any Asset Sale (including,
without limitation, dispositions pursuant to sale and leaseback transactions),
or (b) the disposition of any securities or the extinguishment of any
Indebtedness of such Person or any of its Restricted Subsidiaries, and (ii) any
extraordinary gain (but not loss), together with any related provision for taxes
on such extraordinary gain (but not loss).
"Net Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any Asset Sale, net
of the direct costs relating to such Asset Sale (including, without limitation,
reasonable legal, accounting and investment banking fees, and sales commissions)
and any relocation expenses incurred as a result thereof, taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing arrangements),
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amounts required to be applied to the repayment of Indebtedness secured by a
Lien on the asset or assets that are the subject of such Asset Sale (other than
intercompany Indebtedness and subordinated Indebtedness) and any reserve for
adjustment in respect of the sale price of such asset or assets, provided that
amounts in such reserve must be established in accordance with GAAP and shall
constitute Net Proceeds as and when released to the Company or its Restricted
Subsidiaries.
"Non-Domestic Person" means any direct or indirect Subsidiary or
Minority Owned Affiliate of the Company that is organized under the laws of any
jurisdiction, or has its principal business operations, outside of the United
States of America and Puerto Rico.
"Non-Recourse Debt" means, with respect to any Person, Indebtedness
or that portion of Indebtedness (a) as to which the specified Person (i) does
not provide credit support of any kind (including, without limitation, pursuant
to any undertaking, agreement or instrument that would constitute Indebtedness),
(ii) is not directly or indirectly liable (as a guarantor or otherwise), and
(iii) does not constitute the lender; and (b) no default with respect to which
would permit (upon notice, lapse of time or both) any holder of such
Indebtedness to take any action against the specified Person or its Restricted
Subsidiaries or would permit any holder of Indebtedness of the specified Person
or its Restricted Subsidiaries to declare a default on such other Indebtedness
or cause the payment thereof to be accelerated or payable prior to its stated
maturity; and (c) as to which the lenders have been notified in writing that
they will not have any recourse to the stock or assets of the specified Person
or its Restricted Subsidiaries.
"Non-Recourse Pledge" means, with respect to any Project Financing
permitted under this Indenture by any Person that owns the assets or business
being financed (the "borrower"), a pledge by the immediate parent of the
borrower of the Equity Interests of the borrower to secure such Project
Financing; provided that (i) the lenders' recourse shall be limited to the
Equity Interests of the borrower and shall not extend to any other assets of the
parent and (ii) the assets or business being financed shall constitute all or
substantially all the assets of the borrower.
"Non-U.S. Person" means a Person who is not a U.S. Person.
"Notes" has the meaning assigned to it in the preamble to this
Indenture.
"Obligations" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
"NTL" means NTL Incorporated, a Delaware corporation.
"Offering" means the offering of the Notes by the Company.
"Officer" means, with respect to any Person, the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company, that meets the requirements of
Sections 10.04 and 10.05 hereof.
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"Omnitel" means Omnitel-Sistemi Radiocellulari Italiani S.p.A., and
any successors.
"OPI" means Omnitel Pronto Italia S.p.A., and any successors.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to the Trustee, that meets the requirements of Sections
10.04 and 10.05 hereof. The counsel may be an employee of or counsel to the
Company or any Subsidiary of the Company.
"Outstanding Note Indenture" means that certain indenture, dated
August 22, 1995, by and between the Company and The Chase Manhattan Bank
(formerly known as Chemical Bank) relating to the Company's Senior Discount
Notes due 2000.
"Participant" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to The Depository Trust Company, shall include
Euroclear and Cedel).
"Participating Broker-Dealer" has the meaning set forth in the
Registration Rights Agreement.
"Permitted Holder" means and includes (i) any corporation the
outstanding voting power of the capital stock of which is beneficially owned
directly or indirectly, by the stockholders of the Company in substantially the
same proportions as their ownership of the voting power of the Capital Stock of
the Company or (ii) any underwriter during the period engaged in a firm
commitment underwriting on behalf of the Company with respect to the shares of
Capital Stock being underwritten.
"Percentage Interest in OPI" means, as of any time of determination,
the ratio (expressed as a decimal carried out to four decimal places) of the
total outstanding Capital Stock of OPI beneficially owned directly or indirectly
(through one or more Persons) at such time by the Company and/or any of its
Restricted Subsidiaries, Restricted Affiliates and/or Restricted Subsidiaries of
its Restricted Affiliates, determined on a pro forma basis after giving effect
to any transaction (or series of related transactions) involving the acquisition
by the Company and/or any of its Restricted Subsidiaries, Restricted Affiliates
and/or Restricted Subsidiaries of its Restricted Affiliates, directly or
indirectly (through one or more Persons), of Capital Stock of OPI, whether such
transaction is the subject of a definitive agreement, containing customary
closing conditions, or is otherwise probable to occur.
"Permitted Investments" means (a) Investments in Cash Equivalents;
(b) Investments by the Company or any Restricted Subsidiary of the Company in
the Company or in a Restricted Subsidiary of the Company that is primarily
engaged in a Related Business; (c) Investments by the Company or any Restricted
Subsidiary of the Company in a Person, if as a result of such Investment (i)
such Person becomes a Restricted Subsidiary of the Company that is engaged in a
Related Business or (ii) such Person is merged, consolidated or amalgamated
into, or transfers or conveys all or substantially all of its assets to, or is
liquidated into, the Company or a Restricted Subsidiary of the Company that is
engaged in a Related Business; (d) Investments by the Company or any of its
Restricted Subsidiaries in any Minority Owned Affiliate that has been properly
designated as a Restricted Affiliate and that is primarily engaged in a Related
Business, provided that any such Investment shall cease to be a Permitted
Investment pursuant to this clause (d) if such Restricted Affiliate fails to
observe after any applicable notice period any of the provisions of the
covenants that are applicable to such Restricted Affiliate; (e) Investments by
the Company or a Restricted Subsidiary of the Company in Equity Interests of
Unrestricted Subsidiaries or Unrestricted
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Affiliates or in the form of Guarantees by the Company or a Restricted
Subsidiary of the Company of obligations of Unrestricted Subsidiaries or
Unrestricted Affiliates (collectively, together with all Unrestricted
Investments, "Basket Investments"), in each case only to the extent that such
Investments are in, or such Guarantees are of obligations of, Persons that are
primarily engaged in Related Businesses, provided that the aggregate amount of
all Basket Investments at any one time outstanding (measured by the fair market
value of each such Investment at the time made, as determined in good faith by
the Company's Board of Directors or, in the case of a Guarantee, the amount
guaranteed) may not exceed the sum of (i) $40 million, plus (ii) the aggregate
Equity Offering Proceeds received by the Company since the date hereof and not
otherwise applied to Restricted Payments, plus (iii) the aggregate net cash
proceeds from sales of Subordinated Indebtedness of the Company received by the
Company since the date hereof and not otherwise applied to Restricted Payments,
plus (iv) to the extent that any Investment pursuant to this clause (e) was made
in an Unrestricted Subsidiary or Unrestricted Affiliate since the date hereof
and is sold for cash or otherwise liquidated for cash, the lesser of (1) the
return of capital with respect to such Investment in cash (less the cost of
disposition) and (2) the initial amount of such Investment, plus (v) to the
extent that any Unrestricted Subsidiary is properly designated as a Restricted
Subsidiary in accordance with the terms of this Indenture, or to the extent that
any Unrestricted Affiliate is properly designated as a Restricted Affiliate in
accordance with the terms of this Indenture, the lesser of (1) the initial
amount of all Investments made since the date hereof in such Unrestricted
Subsidiary or Unrestricted Affiliate and (2) the fair market value of all such
Investments as of the date of such designation; (f) Investments in the form of
Non-Recourse Pledges in connection with Project Financings; (g) all Investments
that were outstanding on, or committed to prior to, the date hereof; (h)
Investments by the Company or a Restricted Subsidiary in Omnitel or OPI; (i)
Hedging Obligations entered into by the Company or any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of a Restricted
Affiliate, for bona fide business reasons and not for speculative purposes, and
otherwise in compliance with this Indenture; (j) Investments received by the
Company or its Restricted Subsidiaries, Restricted Affiliates or Restricted
Subsidiaries of Restricted Affiliates, as consideration for asset sales,
including Asset Sales; provided in the case of an Asset Sale, (A) such
investment does not exceed 15% of the consideration received for such Asset Sale
and (B) such Asset Sale is otherwise effected in compliance with the "Asset
Sales" covenant; (k) additional Investments having an aggregate fair market
value, taken together with all other Investments made pursuant to this clause
(k) that are at the time outstanding, not exceeding $5 million at the time of
such Investment (with the fair market value of each Investment being measured at
the time made and without giving effect to subsequent changes in value), and (m)
that portion of any Investment where the consideration provided by the Company
is Capital Stock of the Company (other than Disqualified Stock). For purposes of
the foregoing clause (e), only the Company's Pro Rata Portion of any Basket
Investment will be counted in determining the amount of Basket Investments
outstanding at any time or proposed to be made. In the event of any change in
the Company's Pro Rata Portion of any Basket Investment, such calculation shall
be recomputed as of the date of such change.
"Permitted Liens" means (a) Liens in favor of the Company or a
Wholly Owned Restricted Subsidiary of the Company; (b) Liens on property of a
Person existing at the time such Person is merged into or consolidated with the
Company or any Restricted Subsidiary of the Company, provided that such Liens
were in existence prior to the contemplation by the Company of such merger or
consolidation and do not extend to any assets other that those of the Person
merged into or consolidated with the Company; (c) Liens on property existing at
the time of acquisition thereof by the Company or any Restricted Subsidiary of
the Company, provided that such Liens were in existence prior to or put in place
in the contemplation of such acquisition; (d) Liens to secure the performance of
statutory obligations, surety or appeal bonds, performance bonds or other
obligations of a like nature incurred in the ordinary course of
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business; (e) Liens existing on the date hereof; (f) Liens for taxes,
assessments or governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently concluded, provided that any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (g) Liens incurred in the ordinary course of business of the
Company or any Restricted Subsidiary of the Company with respect to obligations
that do not exceed $5.0 million at any one time outstanding and that (A) are not
incurred in connection with the borrowing of money or the obtaining of advances
or credit (other than trade or installment credit in the ordinary course of
business) and (B) do not in the aggregate materially detract from the value of
the property or materially impair the use thereof in the operation of business
by the Company or such Restricted Subsidiary; (h) Liens on assets of Restricted
Subsidiaries securing Project Financing that is permitted by this Indenture to
be incurred; (i) Liens in the form of Non-Recourse Pledges in connection with
Project Financings; (j) Liens securing obligations under any Credit Facility
permitted to be incurred under "Incurrence of Indebtedness and Issuance of
Disqualifying Stock", provided, that such Liens are not on the Company's direct
interest in Omnitel; (k) Liens securing Purchase Money Debt permitted to be
incurred under "Incurrence of Indebtedness and Issuance of Disqualifying Stock."
"Permitted Refinancing Indebtedness" means any Indebtedness of the
Company, a Restricted Subsidiary of the Company, a Restricted Affiliate or a
Restricted Subsidiary of a Restricted Affiliate issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company, a Restricted Subsidiary of the
Company, a Restricted Affiliate or a Restricted Subsidiary of a Restricted
Affiliate; provided that, unless such Indebtedness is being incurred to
substantially concurrently repay the Notes in full at maturity: (1) the
principal amount (or Accreted Value, as applicable) of such Indebtedness does
not exceed the principal amount (or Accreted Value, as applicable) of the
Indebtedness so extended, refinanced, renewed, replaced, defeased or refunded
(plus the amount of reasonable expenses incurred in connection therewith); (2)
such Indebtedness has a Weighted Average Life to Maturity equal to or greater
than the Weighted Average Life to Maturity of the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness
being extended, refinanced, renewed, replaced, defeased or refunded is
Subordinated Indebtedness, then such Indebtedness is Subordinated Indebtedness;
and (4) such Indebtedness is incurred by the Company or the Restricted Affiliate
(or Subsidiary thereof) which is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
"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
thereofor any other entity.
"Private Placement Legend" means the legend set forth in Section
2.06(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"Pro Rata Portion" means, when applied to the Company for purposes
of determining the amount of Net Proceeds from an Asset Sale made by a
Restricted Subsidiary (other than a Wholly Owned Restricted Subsidiary) that
constitute Excess Proceeds or for purposes of determining the amount of an
Investment that will be deemed to be outstanding under a particular covenant or
definition, that portion of such Net Proceeds or Investment as corresponds to
the Company's direct or indirect percentage ownership interest in the profits of
the Person who engaged in the Asset Sale or the Person in whom the Investment
was made, as applicable (which would be 100% in the case of any Investments made
by the Company
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directly). The Pro Rata Portion of the Net Proceeds from an Asset Sale shall be
determined in good faith by the Company's Board of Directors in connection with
such Asset Sale. The Pro Rata Portion of an Investment as of any date shall be
determined in good faith either by the Company's Board of Directors or in
accordance with procedures established as to such Investment by the Company's
Board of Directors.
"Project Financing" means any Indebtedness incurred after the date
hereof by a Restricted Subsidiary of the Company, a Restricted Affiliate or a
Restricted Subsidiary of a Restricted Affiliate that is Non-Recourse Debt with
respect to the Company and each of its other Restricted Subsidiaries, Restricted
Affiliates and Restricted Subsidiaries of Restricted Affiliates, provided that
Guarantees permitted under (i) or (j) of "Incurrence of Indebtedness and
Issuance of Disqualified Stock" will not cause such Project Financing to be
recourse debt for purposes of this definition.
"Purchase Money Debt" means Indebtedness incurred to finance the
acquisition, construction or improvement of any property or business (including
Indebtedness incurred within 180 days following such acquisition, construction
or improvement), including Indebtedness of a Person existing at the time such
Person becomes a Restricted Subsidiary of the Company, Restricted Affiliate or
Restricted Subsidiary of a Restricted Affiliate or assumed by the Company or a
Restricted Subsidiary of the Company, Restricted Affiliate or Restricted
Subsidiary of a Restricted Affiliate in connection with the acquisition of
assets from such Person.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Rights Agreement" means the Registration Rights
Agreement with respect to the Notes, dated as of March 18, 1998, by and among
the Company and the other parties named on the signature pages thereof, as such
agreement may be amended, modified or supplemented from time to time.
"Regulation S" means Regulation S promulgated under the Securities
Act.
"Related Business" means any business in which the Company, its
Subsidiaries or Minority Owned Affiliates are engaged, directly or indirectly,
that consist primarily of, or are related to, operating, acquiring, developing
and constructing any telecommunications services and related services.
"Repurchase Offer" means an Asset Sale Offer or a Change of Control
Offer, as applicable.
"Responsible Officer," when used with respect to the Trustee, means
any officer, including, without limitation, any vice-president, assistant
vice-president, assistant treasurer, assistant secretary, within the Corporate
Trust Administration of the Trustee (or any successor group of the Trustee) or
any other officer of the Trustee customarily performing functions similar to
those performed by any of the above designated officers and also means, with
respect to a particular corporate trust matter, any other officer or employee to
whom such matter is referred because of his knowledge of and familiarity with
the particular subject.
"Restricted Affiliate" means any direct or indirect Minority Owned
Affiliate of the Company that has been designated in a Board Resolution as a
Restricted Affiliate based on a determination by the Board of Directors that the
Company has, directly or indirectly, the requisite control over such Minority
Owned Affiliate to prevent it from incurring any Indebtedness or issuing any
preferred stock or taking any other action at any time in contravention of any
of the provisions of this Indenture that are applicable to Restricted
Affiliates. The Company will be required to deliver an Officers' Certificate to
the
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Trustee, including a copy of the Board Resolution, upon designating any Minority
Owned Affiliate as a Restricted Affiliate.
"Restricted Definitive Note" means a Definitive Note bearing the
Private Placement Legend.
"Restricted Global Note" means a Global Note bearing the Private
Placement Legend.
"Restricted Investment" means any Investment other than a Permitted
Investment.
"Restricted Period" means the 40-day restricted period as defined in
Regulation S.
"Restricted Subsidiary" of any such Person means any Subsidiary of
such Person other than an Unrestricted Subsidiary of such Person.
"Rule 144" means Rule 144 promulgated under the Securities Act.
"Rule 144A" means Rule 144A promulgated under the Securities Act.
"Rule 903" means Rule 903 promulgated under the Securities Act.
"Rule 904" means Rule 904 promulgated the Securities Act.
"Sale/Leaseback Transaction" means an arrangement relating to
property now owned or hereafter acquired whereby the Company or a Restricted
Subsidiary transfers such property to a Person and the Company or a Restricted
Subsidiary leases it from such Person, other than leases between the Company and
a Wholly Owned Restricted Subsidiary or between Wholly Owned Restricted
Subsidiaries.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Registration Rights Agreement
"Significant Subsidiary" means any Subsidiary that would be a
"significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X,
promulgated pursuant to the Securities Act, as such Regulation is in effect on
the date of this Indenture.
"S&P" means Standard & Poor's Corporation or, if Standard & Poor's
Corporation shall cease rating debt securities having a maturity at original
issuance of at least one year and such ratings business shall have been
transferred to a successor Person, such successor Person; provided, that if
Standard & Poor's Corporation ceases rating debt securities having a maturity at
original issuance of at least one year and its rating business with respect
thereto shall not have been transferred to any successor Person, then "S&P"
shall mean any other nationally recognized rating agency (other than ▇▇▇▇▇'▇)
that rates debt securities having a maturity at original issuance of at least
one year and that shall have been designated by the Company by a written notice
given to the Trustee.
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"Subordinated Indebtedness" means (i) the Convertible Notes and (ii)
any other Indebtedness of the Company that by its terms is expressly
subordinated in right of payment to the Notes and that does not provide for any
scheduled principal payment or redemption prior to the first anniversary of the
maturity of the Notes.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity (other than a partnership) of which more
than 50% of the total voting power of shares of Capital Stock entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person or a combination thereof and (ii) any partnership of which more
than 50% of the partnership's capital accounts, distribution rights or general
or limited partnership interests are owned or controlled, directly or
indirectly, by such Person or one or more of the other Subsidiaries of that
Person or a combination thereof.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C. ▇▇.▇▇.
77aaa-77bbbb) as amended and as in effect on the date on which this Indenture is
qualified under the TIA.
"Total Market Capitalization" of any Person means, as of any date of
determination, the sum of (1) the Consolidated Debt of such Person on such date,
plus (2) the Total Market Value of Equity of such Person on such date.
"Total Market Value of Equity" of any Person means, as of any date
of determination, the sum of (1) the product of (i) the aggregate number of
outstanding primary shares of common stock of such Person and (ii) the average
Closing Price of such common stock over the 20 consecutive Trading Days
immediately preceding such date of determination, plus (2) the stated
liquidation preference of any outstanding shares of preferred stock of such
Person outstanding as of such date of determination. If no such Closing Price
exists with respect to any class of common stock, the value of such shares for
purposes of clause (1) of the preceeding sentence will be determined by a
valuation opinion issued by an investment banking firm of national standing with
experience in such valuations that has been filed with the Trustee.
"Trading Day" with respect to a securities exchange or automated
quotation system means a day on which such exchange or system is open for a full
day of trading.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Indenture and
thereafter means the successor serving hereunder.
"Unrestricted Affiliate" means any direct or indirect Minority Owned
Affiliate of the Company other than a Restricted Affiliate.
"Unrestricted Global Note" means a permanent global Note in the form
of Exhibit A attached hereto that bears the Global Note Legend and that has the
"Schedule of Exchanges of Interests in the Global Note" attached thereto, and
that is deposited with or on behalf of and registered in the name of the
Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Unrestricted Definitive Note" means one or more Definitive Notes
that do not bear and are not required to bear the Private Placement Legend.
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"Unrestricted Subsidiary" means any Person that is designated by the
Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution,
but in each case such designation may be made and shall be effective only if
such Person: (a) is not a party to any contract, agreement, understanding or
other arrangement of any kind (other than in respect of management, operating or
technical assistance) with the Company or any of its Restricted Subsidiaries
other than on terms no less favorable to the Company or such Restricted
Subsidiary than those that could be obtained from Persons who are not Affiliates
of the Company; (b) is a Person with respect to which neither the Company nor
any of its Restricted Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (c) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Restricted Subsidiaries. Any such designation by the Board of Directors will
be required to be evidenced to the Trustee by filing with the Trustee a
certified copy of the board resolution giving effect to such designation and an
Officers' Certificate certifying that such designation complied with the
foregoing conditions and was permitted by the covenant described above under the
caption "Certain Covenants--Restricted Payments." If at any time, any
Unrestricted Subsidiary would fail to meet the foregoing requirements as an
Unrestricted Subsidiary, it shall thereafter cease to be an Unrestricted
Subsidiary for purposes of this Indenture and any Indebtedness of such
Subsidiary shall be deemed to be incurred by a Restricted Subsidiary of the
Company as of such date (and, if such Indebtedness is not permitted to be
incurred as of such date under the covenant described under the caption
"Incurrence of Indebtedness and Issuance of Disqualified Stock," the Company
shall be in default of such covenant).
"U.S. Person" means a U.S. person as defined in Rule 902(o) under
the Securities Act.
"Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (a) the sum
of the products obtained by multiplying (x) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (y) the
number of years (calculated to the nearest one-twelfth) that will elapse between
such date and the making of such payment, by (b) the then outstanding principal
amount of such Indebtedness.
"Wholly Owned Restricted Subsidiary" of any Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Restricted Subsidiaries of that Person or a combination thereof.
SECTION 1.02. OTHER DEFINITIONS.
Defined in
Term Section
"Affiliate Transaction"..............................4.11
"Asset Sale Offer"...................................3.09
"Authentication Order"...............................2.02
"Bankruptcy Law".....................................4.01
"Change of Control Offer"............................4.15
"Change of Control Payment"..........................4.15
"Change of Control Payment Date" ....................4.15
"Chosen Currency" ...................................4.01
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"Components" ........................................4.01
"Covenant Defeasance"................................8.03
"Day of Valuation" ..................................4.01
"Event of Default"...................................6.01
"Excess Proceeds"....................................4.10
"incur"..............................................4.09
"Legal Defeasance" ..................................8.02
"Luxembourg Exchange" ...............................4.01
"Offer Amount".......................................3.09
"Offer Period".......................................3.09
"Paying Agent".......................................2.03
"Payment Default"....................................6.01
"Purchase Date"......................................3.09
"Registrar"..........................................2.03
"Restricted Payments"................................4.07
SECTION 1.03. TRUST INDENTURE ACT DEFINITIONS
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the Trustee;
and
"obligor" on the Notes means the Company and any successor obligor
upon the Notes.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
SECTION 1.04. RULES OF CONSTRUCTION.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular;
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(5) provisions apply to successive events and transactions;
and
(6) references to sections of or rules under the Securities
Act shall be deemed to include substitute, replacement of successor
sections or rules adopted by the SEC from time to time.
ARTICLE 2.
THE NOTES
SECTION 2.01. FORM AND DATING.
(a) General. The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A hereto. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or
usage. Each Note shall be dated the date of its authentication. The Notes shall
be in denominations of EURO 1,000 and integral multiples thereof.
The terms and provisions contained in the Notes shall constitute,
and are hereby expressly made, a part of this Indenture and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Note conflicts with the express provisions of this Indenture,
the provisions of this Indenture shall govern and be controlling.
(b) Global Notes.
Notes issued in global form shall be substantially in the form of
Exhibit A attached hereto (including the Global Note Legend thereon and the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Notes
issued in definitive form shall be substantially in the form of Exhibit A
attached hereto (but without the Global Note Legend thereon and without the
"Schedule of Exchanges of Interests in the Global Note" attached thereto). Each
Global Note shall represent such of the outstanding Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal
amount of outstanding Notes from time to time endorsed thereon and that the
aggregate principal amount of outstanding Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and
redemptions. Any endorsement of a Global Note to reflect the amount of any
increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Note Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 2.06 hereof.
(c) Euroclear and Cedel Procedures Applicable.
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 Cedel Bank" and "Customer Handbook" of Cedel Bank shall be
applicable to transfers of beneficial interests in the Global Notes that are
held by Participants through Euroclear or Cedel Bank.
SECTION 2.02. EXECUTION AND AUTHENTICATION.
One Officer shall sign the Notes for the Company by manual or
facsimile signature. The Company's seal may be reproduced on the Notes and may
be in facsimile form.
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If an Officer whose signature is on a Note no longer holds that
office at the time a Note is authenticated, the Note shall nevertheless be
valid.
A Note shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Note has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by one
Officer (an "Authentication Order"), authenticate Notes for original issue up to
the aggregate principal amount stated in paragraph 4 of the Notes. The aggregate
principal amount of Notes outstanding at any time may not exceed such amount
except as provided in Section 2.07 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. 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. An
authenticating agent has the same rights as an Agent to deal with Holders or an
Affiliate of the Company.
SECTION 2.03. REGISTRAR AND PAYING AGENT.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Notes and of their transfer and exchange.
The Company may appoint one or more co-registrars and one or more additional
paying agents. The term "Registrar" includes any co-registrar and the term
"Paying Agent" includes any additional paying agent. The Company may change any
Paying Agent or Registrar without notice to any Holder. The Company shall notify
the Trustee in writing of the name and address of any Agent not a party to this
Indenture. If the Company fails to appoint or maintain another entity as
Registrar or Paying Agent, the Trustee shall act as such. The Company or any of
its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Chase Manhattan Bank (London), as
common depositary (the "Depositary") for both ▇▇▇▇▇▇ Guarantee Trust Company of
New York, Brussels office, as operator of the Euroclear System and Cedel Bank,
societe anonyme to act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar
and Paying Agent at its offices in London and the City and State of New York
and, so long as the Notes are listed on the Luxembourg Stock Exchange, the
Company initially appoints Banque Internationale a Luxembourg to act as paying
agent in Luxembourg.
SECTION 2.04. PAYING AGENT TO HOLD MONEY IN TRUST.
The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium or Liquidated Damages, if any, or interest on the Notes, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and
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hold in a separate trust fund for the benefit of the Holders all money held by
it as Paying Agent. Upon any bankruptcy or reorganization proceedings relating
to the Company, the Trustee shall serve as Paying Agent for the Notes.
SECTION 2.05. HOLDER LISTS.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA ss. 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA ss. 312(a).
SECTION 2.06. TRANSFER AND EXCHANGE.
(a) Transfer and Exchange of Global Notes.
A Global Note may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, the Depositary or any such
nominee to a successor Depositary or a nominee of such successor Depositary. All
Global Notes will be exchanged by the Company for Definitive Notes if (i) the
Company delivers to the Trustee notice from the Depositary that it is unwilling
or unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee. Upon the occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note or any
portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10 hereof,
shall be authenticated and delivered in the form of, and shall be, a Global
Note. A Global Note may not be exchanged for another Note other than as provided
in this Section 2.06(a), however, beneficial interests in a Global Note may be
transferred and exchanged as provided in Section 2.06(b),(c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes.
The transfer and exchange of beneficial interests in the Global
Notes shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the Applicable Procedures. Beneficial interests
in the Restricted Global Notes shall be subject to restrictions on transfer
comparable to those set forth herein to the extent required by the Securities
Act. Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Unrestricted Global Note may be
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transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Registrar to effect
the transfers described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests in
Global Notes. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.06(b)(i) above, the transferor
of such beneficial interest must deliver to the Registrar either (A) (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 credit or cause to be credited a beneficial interest in
another Global Note in an amount equal to the beneficial interest to be
transferred or exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the Participant
account to be credited with such increase or (B) (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
cause to be issued a Definitive Note in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person in
whose name such Definitive Note shall be registered to effect the transfer
or exchange referred to in (1) above. Upon consummation of an Exchange
Offer by the Company in accordance with Section 2.06(f) hereof, the
requirements of this Section 2.06(b)(ii) shall be deemed to have been
satisfied upon receipt by the Registrar of the instructions contained in
the Letter of Transmittal delivered by the Holder of such beneficial
interests in the Restricted Global Notes. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or otherwise applicable
under the Securities Act, the Trustee shall adjust the principal amount of
the relevant Global Note(s) pursuant to Section 2.06(h) hereof.
(iii) Transfer of Beneficial Interests to Another Restricted Global
Note. A beneficial interest in any Restricted Global Note may be
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in another Restricted Global Note if the transfer
complies with the requirements of Section 2.06(b)(ii) above and each of
the Trustee and the Registrar receives a certificate in the form of
Exhibit B hereto, including the certifications in item (1) or (2), as
applicable, thereof;
(iv) Transfer and Exchange of Beneficial Interests in a Restricted
Global Note for Beneficial Interests in the Unrestricted Global Note. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above and:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1)
a broker-dealer, (2) a Person participating in the distribution of
the Exchange Notes or (3) a Person who is an affiliate (as defined
in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
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(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance
with the Registration Rights Agreement; or
(D) each of the Trustee and the Registrar receives the
following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a beneficial
interest in an Unrestricted Global Note, a certificate from such holder in
the form of Exhibit C hereto, including the certifications in item (1)(a)
thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such holder in the form of
Exhibit B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Trustee
or the Registrar so requests or if the Applicable Procedures so require,
an Opinion of Counsel in form reasonably acceptable to the Trustee or the
Registrar, as the case may be, to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D)
above at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be
exchanged for, or transferred to Persons who take delivery thereof in the form
of, a beneficial interest in a Restricted Global Note.
(c) Transfer or Exchange of Beneficial Interests for Definitive Notes.
(i) Beneficial Interests in Restricted Global Notes to Restricted
Definitive Notes. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by each of the Trustee and the Registrar of the following
documentation:
(A) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Restricted Definitive Note, a certificate from such holder in the
form of Exhibit C hereto, including the certifications in item
(2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate
to the effect set forth in Exhibit B hereto, including the
certifications in item (1) thereof;
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(C) if such beneficial interest is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule
903 or Rule 904 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications
in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant
to an exemption from the registration requirements of the Securities
Act in accordance with Rule 144 under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(a) thereof;
(E) if such beneficial interest is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set
forth in Exhibit B hereto, including the certifications in item
(3)(b) thereof; or
(F) if such beneficial interest is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including
the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 2.06(c) shall be registered in such name or names and in such
authorized denomination or denominations as the holder of such beneficial
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 2.06(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) Beneficial Interests in Restricted Global Notes to Unrestricted
Definitive Notes. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes delivery
thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
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(D) each of the Trustee and the Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Definitive
Note that does not bear the Private Placement Legend, a certificate from
such holder in the form of Exhibit C hereto, including the certifications
in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person who
shall take delivery thereof in the form of a Definitive Note that does not
bear the Private Placement Legend, a certificate from such holder in the
form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Trustee and the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
(iii) Beneficial Interests in Unrestricted Global Notes to
Unrestricted Definitive Notes. If any holder of a beneficial interest in
an Unrestricted Global Note proposes to exchange such beneficial interest
for a Definitive Note or to transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 2.06(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Notes to
the Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests.
(i) Restricted Definitive Notes to Beneficial Interests in Restricted
Global Notes. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Registrar of the following documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such Holder in the form of Exhibit C hereto, including
the certifications in item (2)(b) thereof;
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(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in Exhibit B hereto, including the certifications in
item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in Exhibit B hereto, including the certifications in item
(3)(a) thereof;
(E) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in Exhibit B hereto, including the certifications in item (3)(b) thereof;
or
(F) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in Exhibit B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note and, in all other cases,
the 144A/Regulation S Global Note.
(ii) Restricted Definitive Notes to Beneficial Interests in Unrestricted
Global Notes. A Holder of a Restricted Definitive Note may exchange such Note
for a beneficial interest in an Unrestricted Global Note or transfer such
Restricted Definitive Note to a Person who takes delivery thereof in the form
of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Participating Broker-Dealer
pursuant to the Exchange Offer Registration Statement in accordance with
the Registration Rights Agreement; or
(D) each of the Trustee and the Registrar receives the following:
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(1) if the Holder of such Definitive Notes proposes to
exchange such Notes for a beneficial interest in the Unrestricted Global
Note, a certificate from such Holder in the form of Exhibit C hereto,
including the certifications in item (1)(c) thereof; or
(2) if the Holder of such Definitive Notes proposes to
transfer such Notes to a Person who shall take delivery thereof in the
form of a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of Exhibit B hereto, including
the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Trustee and the
Registrar to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in order
to maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) Unrestricted Definitive Notes to Beneficial Interests in
Unrestricted Global Notes. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any time.
Upon receipt of a request for such an exchange or transfer, the Trustee shall
cancel the applicable Unrestricted Definitive Note and increase or cause to
be increased the aggregate principal amount of one of the Unrestricted Global
Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or
(iii) above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of an Authentication Order in
accordance with Section 2.02 hereof, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
principal amount of Definitive Notes so transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 2.06(e), the Registrar shall
register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Notes duly endorsed or accompanied by
a written instruction of transfer in form satisfactory to the Registrar duly
executed by such Holder or by his attorney, duly authorized in writing. In
addition, the requesting Holder shall provide any additional certifications,
documents and information, as applicable, required pursuant to the following
provisions of this Section 2.06(e).
(i) Restricted Definitive Notes to Restricted Definitive Notes. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if each of the Trustee and the Registrar receives the following:
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(A) if the transfer will be made pursuant to Rule 144A under
the Securities Act, then the transferor must deliver a certificate
in the form of Exhibit B hereto, including the certifications in
item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule
904, then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications in item (2) thereof;
and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities Act,
then the transferor must deliver a certificate in the form of
Exhibit B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable.
(ii) Restricted Definitive Notes to Unrestricted Definitive Notes. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the
Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a
Person who is an affiliate (as defined in Rule 144) of the Company;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement;
(C) any such transfer is effected by a Participating
Broker-Dealer pursuant to the Exchange Offer Registration Statement
in accordance with the Registration Rights Agreement; or
(D) each of the Trustee and the Registrar receives the
following:
(1) if the Holder of such Restricted Definitive Notes proposes
to exchange such Notes for an Unrestricted Definitive Note, a certificate
from such Holder in the form of Exhibit C hereto, including the
certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof in the
form of an Unrestricted Definitive Note, a certificate from such Holder in
the form of Exhibit B hereto, including the certifications in item (4)
thereof;
and, in each such case set forth in this subparagraph (D), if the
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Trustee, the Registrar and the Company to the effect that such
exchange or transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
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(iii) Unrestricted Definitive Notes to Unrestricted Definitive Notes. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar shall
register the Unrestricted Definitive Notes pursuant to the instructions from
the Holder thereof.
(f) Exchange Offer.
Upon the occurrence of the Exchange Offer in accordance with the
Registration Rights Agreement, the Company shall issue and, upon receipt of an
Authentication Order in accordance with Section 2.02, the Trustee shall
authenticate (i) one or more Unrestricted Global Notes in an aggregate principal
amount equal to the principal amount of the beneficial interests in the
Restricted Global Notes tendered for acceptance by Persons that certify in the
applicable Letters of Transmittal that (x) they are not broker-dealers, (y) they
are not participating in a distribution of the Exchange Notes and (z) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Definitive Notes in an aggregate
principal amount equal to the principal amount of the Restricted Definitive
Notes accepted for exchange in the Exchange Offer. Concurrently with the
issuance of such Notes, the Trustee shall cause the aggregate principal amount
of the applicable Restricted Global Notes to be reduced accordingly, and the
Company shall execute and the Trustee shall authenticate and deliver to the
Persons designated by the Holders of Definitive Notes so accepted Definitive
Notes in the appropriate principal amount.
(g) Legends.
The following legends shall appear on the face of all Global Notes
and Definitive Notes issued under this Indenture unless specifically stated
otherwise in the applicable provisions of this Indenture.
(i) Private Placement Legend.
(A) Except as permitted by subparagraph (B) below, each Global Note and
each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS ORIGINALLY
ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION UNDER ▇▇▇▇▇▇▇ ▇ ▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY EVIDENCED HEREBY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THE SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A OR REGULATION S THEREUNDER. THE
HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED, ONLY (1)(a) INSIDE THE UNITED STATES TO A
PERSON WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED
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INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (b) IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (c) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN
A TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE
SECURITIES ACT, OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND BASED UPON AN
OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), (2) TO THE COMPANY
OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B)
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY
ANY PURCHASER FROM IT OF THE SECURITY EVIDENCED HEREBY OF THE RESALE
RESTRICTIONS SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 2.06 (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) Global Note Legend.. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE
BENEFICIAL OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY
CIRCUMSTANCES EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON
AS MAY BE REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION
2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE
TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE INDENTURE AND
(IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH
THE PRIOR WRITTEN CONSENT OF THE COMPANY."
(iii) Original Issue Discount Legend. Each Note shall bear a legend in
substantially the following form:
"FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT; FOR EACH EURO 1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE
ISSUE PRICE IS EURO 624.55, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS EURO
375.45, THE ISSUE DATE IS MARCH 18, 1998 AND THE YIELD TO MATURITY IS 9
1/2 % PER ANNUM."
(h) Cancellation and/or Adjustment of Global Notes.
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At such time as all beneficial interests in a particular Global Note
have been exchanged for Definitive Notes or a particular Global Note has been
redeemed, repurchased or canceled in whole and not in part, each such Global
Note shall be returned to or retained and canceled by the Trustee in accordance
with Section 2.11 hereof. At any time prior to such cancellation, if any
beneficial interest in a Global Note is exchanged for or transferred to a Person
who will take delivery thereof in the form of a beneficial interest in another
Global Note or for Definitive Notes, the principal amount of Notes represented
by such Global Note shall be reduced accordingly and an endorsement shall be
made on such Global Note by the Trustee or by the Depositary; and if the
beneficial interest is being exchanged for or transferred to a Person who will
take delivery thereof in the form of a beneficial interest in another Global
Note, such other Global Note shall be increased accordingly and an endorsement
shall be made on such Global Note by the Trustee or by the Depositary.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Global Notes and Definitive Notes
upon the Company's order or, if the Trustee and the Registrar are not the
same Person, at the Registrar's request.
(ii) No service charge shall be made to a holder of a beneficial interest
in a Global Note or to a Holder of a Definitive Note for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to cover any transfer tax or similar governmental charge payable in
connection therewith (other than any such transfer taxes or similar
governmental charge payable upon exchange or transfer pursuant to Sections
2.10, 3.06, 3.09, 4.10, 4.15 and 9.05 hereof).
(iii) The Registrar shall not be required to register the transfer of or
exchange any Note selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any registration of
transfer or exchange of Global Notes or Definitive Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the
same benefits under this Indenture, as the Global Notes or Definitive Notes
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Notes during a period beginning at the opening
of business 15 days before the day of any selection of Notes for redemption
under Section 3.02 hereof and ending at the close of business on the day of
selection, (B) to register the transfer of or to exchange any Note so
selected for redemption in whole or in part, except the unredeemed portion of
any Note being redeemed in part or (c) to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(vi) Prior to due presentment for the registration of a transfer of any
Note, the Trustee, any Agent and the Company may deem and treat the Person in
whose name any Note is registered as the absolute owner of such Note for the
purpose of receiving payment of principal of and interest on such Notes and
for all other purposes, and none of the Trustee, any Agent or the Company
shall be affected by notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 2.02 hereof.
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(viii) All certifications, certificates and Opinions of Counsel required
to be submitted to the Trustee and the Registrar pursuant to this Section
2.06 to effect a registration of transfer or exchange may be submitted by
facsimile.
SECTION 2.07. REPLACEMENT NOTES
If any mutilated Note is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Note, the Company shall issue and the Trustee, upon receipt of
an Authentication Order, shall authenticate a replacement Note if the Trustee's
requirements are met. If required by the Trustee or the Company, an indemnity
bond must be supplied by the Holder that is sufficient in the judgment of the
Trustee and the Company to protect the Company, the Trustee, any Agent and any
authenticating agent from any loss that any of them may suffer if a Note is
replaced. The Company may charge for its expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company
and shall be entitled to all of the benefits of this Indenture equally and
proportionately with all other Notes duly issued hereunder.
SECTION 2.08. OUTSTANDING NOTES.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
SECTION 2.09. TREASURY NOTES.
In determining whether the Holders of the required principal amount
of Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes that the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. TEMPORARY NOTES
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes
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shall be substantially in the form of certificated Notes but may have variations
that the Company considers appropriate for temporary Notes and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Notes in exchange
for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits
of this Indenture.
SECTION 2.11 CANCELLATION.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall destroy
canceled Notes (subject to the record retention requirement of the Exchange
Act). Certification of the destruction of all canceled Notes shall be delivered
to the Company. The Company may not issue new Notes to replace Notes that it has
paid or that have been delivered to the Trustee for cancellation.
SECTION 2.12. DEFAULTED INTEREST.
If the Company defaults in a payment of interest on the Notes, it
shall pay the defaulted interest in any lawful manner plus, to the extent
lawful, interest payable on the defaulted interest, to the Persons who are
Holders on a subsequent special record date, in each case at the rate provided
in the Notes and in Section 4.01 hereof. The Company shall notify the Trustee in
writing of the amount of defaulted interest proposed to be paid on each Note and
the date of the proposed payment. The Company shall fix or cause to be fixed
each such special record date and payment date, provided that no such special
record date shall be less than 10 days prior to the related payment date for
such defaulted interest. At least 15 days before the special record date, the
Company (or, upon the written request of the Company, the Trustee in the name
and at the expense of the Company) shall mail or cause to be mailed to Holders a
notice that states the special record date, the related payment date and the
amount of such interest to be paid.
SECTION 2.13. CUSIP AND ISIN NUMBERS.
The Company in issuing the Notes may use "CUSIP" and "ISIN," as
applicable, numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" and "ISIN," as applicable, numbers in notices or redemption as a
convenience to the Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Notes or as contained in any notice of redemption and that reliance may
be placed only on the other identification numbers printed on the Notes, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Company will promptly notify the Trustee of any change in the
"CUSIP" or "ISIN," as applicable, numbers.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
SECTION 3.01. NOTICES TO TRUSTEE.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 45 days but not more than 60 days before a
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redemption date, an Officers' Certificate setting forth (i) the clause of this
Indenture pursuant to which the redemption shall occur, (ii) the redemption
date, (iii) the principal amount of Notes to be redeemed and (iv) the redemption
price.
SECTION 3.02. SELECTION OF NOTES TO BE REDEEMED
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption.
The Trustee shall promptly notify the Company in writing of the
Notes selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of EURO 1,000 or whole multiples of EURO
1,000; except that if all of the Notes of a Holder are to be redeemed, the
entire outstanding amount of Notes held by such Holder, even if not a multiple
of EURO 1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
SECTION 3.03. NOTICE OF REDEMPTION
Subject to the provisions of Section 3.09 hereof, at least 30 days
but not more than 60 days before a redemption date, the Company shall mail or
cause to be mailed, by first class mail, a notice of redemption to each Holder
whose Notes are to be redeemed at its registered address.
The notice shall identify the Notes to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption payment,
interest on Notes called for redemption ceases to accrue on and after the
redemption date;
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(g) the paragraph of the Notes and/or Section of this Indenture pursuant
to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP or ISIN, as applicable, number, if any, listed in such notice or
printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided, however, that the
Company shall have delivered to the Trustee, at least 45 days prior to the
redemption date, an Officers' Certificate requesting that the Trustee give such
notice and setting forth the information to be stated in such notice as provided
in the preceding paragraph.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION
Once notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price. A notice of redemption may not be
conditional.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Notes or the portions of Notes called for redemption. If a Note is redeemed
on or after an interest record date but on or prior to the related interest
payment date, then any accrued and unpaid interest shall be paid to the Person
in whose name such Note was registered at the close of business on such record
date. If any Note called for redemption shall not be so paid upon surrender for
redemption because of the failure of the Company to comply with the preceding
paragraph, interest shall be paid on the unpaid principal, from the redemption
date until such principal is paid, and to the extent lawful on any interest not
paid on such unpaid principal, in each case at the rate provided in the Notes
and in Section 4.01 hereof.
SECTION 3.06. NOTES REDEEMED IN PART.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
SECTION 3.07. OPTIONAL REDEMPTION.
(a) Except as set forth in clause (b) of this Section 3.07, the
Company shall not have the option to redeem the Notes pursuant to this Section
3.07 prior to April 1, 2002. Thereafter, the Company shall have the option to
redeem the Notes, in whole or in part, at the redemption prices (expressed as
percentages of principal Accreted Value) set forth below plus, in the case of
any
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redemption subsequent to the Full Accretion Date, accrued and unpaid interest
and Liquidated Damages thereon, if any, to the applicable redemption date, if
redeemed during the twelve-month period beginning on April 1 of the years
indicated below:
Year Percentage
---- ----------
2002.............................................104.750 %
2003.............................................103.167 %
2004.............................................101.583 %
2005.............................................100.000 %
(b) Any redemption pursuant to this Section 3.07 shall be made pursuant to
the provisions of Section 3.01 through 3.06 hereof.
(c) The Company shall have the right to purchase Notes in the open market
or otherwise. Any Notes so purchased may be resold at the Company's discretion
if not surrendered for cancellation pursuant to this Indenture.
SECTION 3.08. MANDATORY REDEMPTION.
Except as set forth under Section 3.09, 4.10 and 4.15 hereof, the
Company shall not be required to make mandatory redemption payments with respect
to the Notes.
SECTION 3.09. OFFER TO PURCHASE BY APPLICATION OF EXCESS PROCEEDS.
In the event that, pursuant to Section 4.10 hereof, the Company
shall be required to commence an offer to all Holders to purchase Notes (an
"Asset Sale Offer"), it shall follow the procedures specified below.
The Asset Sale Offer shall remain open for a period of 20 Business
Days following its commencement and no longer, except to the extent that a
longer period is required by applicable law (the "Offer Period"). No later than
five Business Days after the termination of the Offer Period (the "Purchase
Date"), the Company shall purchase the Accreted Value of Notes required to be
purchased pursuant to Section 4.10 hereof (the "Offer Amount") or, if less than
the Offer Amount has been tendered, all Notes tendered in response to the Asset
Sale Offer. Payment for any Notes so purchased shall be made in the same manner
as interest payments are made.
If the Purchase Date is on or after an interest record date and on
or before the related interest payment date, any accrued and unpaid interest ,
if any, shall be paid to the Person in whose name a Note is registered at the
close of business on such record date, and no additional interest shall be
payable to Holders who tender Notes pursuant to the Asset Sale Offer.
Upon the commencement of an Asset Sale Offer, the Company shall
send, by first class mail, a notice to the Trustee and each of the Holders. The
notice shall contain all instructions and materials necessary to enable such
Holders to tender Notes pursuant to the Asset Sale Offer. The Asset Sale Offer
shall be made to all Holders. The notice, which shall govern the terms of the
Asset Sale Offer, shall state:
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(a) that the Asset Sale Offer is being made pursuant to this Section 3.09
and Section 4.10 hereof and the length of time the Asset Sale Offer shall remain
open;
(b) the Offer Amount, the purchase price and the Purchase Date;
(c) that any Note not tendered or accepted for payment shall continue to
accrete or accrue interest;
(d) that, unless the Company defaults in making such payment, any Note
accepted for payment pursuant to the Asset Sale Offer shall cease to accrete or
accrue interest after the Purchase Date;
(e) that Holders electing to have a Note purchased pursuant to an Asset
Sale Offer may only elect to have all of such Note purchased and may not elect
to have only a portion of such Note purchased;
(f) that Holders electing to have a Note purchased pursuant to any Asset
Sale Offer shall be required to surrender the Note, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Note completed, or
transfer by book-entry transfer, to the Company, a depositary, if appointed by
the Company, or a Paying Agent at the address specified in the notice at least
three days before the Purchase Date;
(g) that Holders shall be entitled to withdraw their election if the
Company, the Depositary or the Paying Agent, as the case may be, receives, not
later than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of the Note the Holder delivered for purchase and a statement that such
Holder is withdrawing his election to have such Note purchased;
(h) that, if the aggregate Accreted Value of Notes surrendered by Holders
exceeds the Offer Amount, the Company shall select the Notes to be purchased on
a pro rata basis (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of EURO 1,000, or integral multiples
thereof, shall be purchased); and
(i) that Holders whose Notes were purchased only in part shall be issued
new Notes equal in principal amount to the unpurchased portion of the Notes
surrendered (or transferred by book-entry transfer).
On or before the Purchase Date, the Company shall, to the extent
lawful, accept for payment, on a pro rata basis to the extent necessary, the
Offer Amount of Notes or portions thereof tendered pursuant to the Asset Sale
Offer, or if less than the Offer Amount has been tendered, all Notes tendered,
and shall deliver to the Trustee an Officers' Certificate stating that such
Notes or portions thereof were accepted for payment by the Company in accordance
with the terms of this Section 3.09. The Company, the Depositary or the Paying
Agent, as the case may be, shall promptly (but in any case not later than five
days after the Purchase Date) mail or deliver to each tendering Holder an amount
equal to the purchase price of the Notes tendered by such Holder and accepted by
the Company for purchase, and the Company shall promptly issue a new Note, and
the Trustee, upon written request from the Company shall authenticate and mail
or deliver such new Note to such Holder, in a principal amount equal to any
unpurchased portion of the Note surrendered. Any Note not so accepted shall be
promptly mailed or
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delivered by the Company to the Holder thereof. The Company shall publicly
announce the results of the Asset Sale Offer on the Purchase Date.
Other than as specifically provided in this Section 3.09, any
purchase pursuant to this Section 3.09 shall be made pursuant to the provisions
of Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
SECTION 4.01. PAYMENT OF NOTES.
The Company shall pay or cause to be paid the principal amount or
Accreted Value of, premium, if any, and interest on the Notes on the dates and
in the manner provided in the Notes. Principal amount or Directed Value,
premium, if any, and interest shall be considered paid on the date due if the
Paying Agent, if other than the Company or a Subsidiary thereof, holds as of
10:00 a.m. Eastern Time on the due date money deposited by the Company in
immediately available funds and designated for and sufficient to pay all
principal amount or Accreted Value, premium, if any, and interest then due. The
Company shall pay all Liquidated Damages, if any, in the same manner on the
dates and in the amounts set forth in the Registration Rights Agreement.
Interest will be computed on the basis of a 360 day year comprised
of twelve 30-day months. Principal, premium, if any, and interest and Liquidated
Damages, if any, on the Notes will be payable in EUROs only by credit or
transfer to a EURO account (or, prior to the introduction of the EURO at the
third stage of European economic and monetary union, will be payable in ECU only
by credit or transfer to an ECU account at the rate of one ECU for one EURO)
located in the place of payment (outside the United States) specified by the
relevant Holder. Payments in a component currency of the EURO or ECU (if so
determined as provided below) will be made in the chosen currency (as defined
below) either by check drawn on, or by transfer to an account specified by the
payee with, a bank in the principal financial center of the country of the
chosen currency. The Notes will be issued in denominations of EURO 1,000
principal amount at maturity and integral multiples thereof.
References in the Notes and this Indenture to any business day, day
count fraction or other convention (whether for the calculation of interest,
determination of payment dates or otherwise) shall, if different, with effect
from the introduction of the EURO at the start of the third stage of European
economic and monetary union, be deemed to be amended to comply with any
conventions applicable to EURO denominated obligations pursuant to applicable
requirements of relevant monetary, stock exchange or other authorities,
applicable EC and national laws and regulations and such market practices
consistent therewith as the Company, in its discretion, shall determine to be
applicable for such EURO denominated obligations held in international clearing
systems and the terms and conditions of the Notes and this Indenture shall be
amended accordingly. Notice of any such amendments shall be notified to the
Holders.
The Notes will be payable both as to principal and interest (on
presentation of such Notes if in certified form) at the offices or agencies of
the Company maintained for such purpose within the City and State of New York
and London, England and, so as long as the Notes are listed on the Luxembourg
Stock Exchange, at the office of the paying agent maintained in Luxembourg or,
at the option of the Company, payment of interest may be made by check mailed to
the holders of the Notes at their respective addresses set forth in the register
of holders of Notes or, if a holder so requests, by wire transfer of immediately
available funds to an account previously specified in writing by such holder to
the Company and the
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Trustee. Holders who receive payment in any currency other than the EURO must
make arrangements at their own expense.
With respect to each due date for the payment of interest, premium,
if any, or Liquidated Damages, if any, or the repayment of principal on which
the ECU is neither used as the unit of account of the European Community nor
used as the currency of the European Union (and is not at such time replaced by
the EURO), the Company shall, without liability on its part and without having
regard to the interests of individual Holders (i) choose a component currency
(the "Chosen Currency") of the ECU or (ii) U.S. dollars in which all payments
due on that date with respect to Notes shall be made. The amount of each payment
in the Chosen Currency shall be computed on the basis of the equivalent of the
ECU in that currency, determined as set forth herein, as of the fourth business
day in Luxembourg prior to the date on which such payment is due. Notice of the
Chosen Currency selected by the Company shall, where practicable, be given to
Holders of Notes.
On the first business day in Luxembourg on which the ECU is neither
used as the unit of account of the EC nor used as the currency of the European
Union (and is not at such time replaced by the EURO), the Company shall, without
liability on its part and without having regard to the interests of individual
Holders of Notes, choose the Chosen Currency in which all payments with respect
to Notes having a due date prior thereto but not yet presented for payment are
to be made. The amount of each payment in the Chosen Currency shall be computed
on the basis of the equivalent of the ECU in that currency, determined as set
out in this paragraph, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of any
date (the "Day of Valuation") shall be determined on the following basis by the
Luxembourg Stock Exchange (the "Luxembourg Exchange"). The component currencies
of the ECU for this purpose (the "Components") shall be the currency amounts
which were components of the ECU when the ECU was most recently used as the unit
of account of the EC. The equivalent of the ECU in the Chosen Currency shall be
calculated by, first, aggregating the U.S. dollar equivalents of the Components,
and then, using the rate used for determining the U.S. dollar equivalent of the
Component in the Chosen Currency as set out below, calculating the equivalent in
the Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall be
determined by the Luxembourg Exchange on the basis of the middle spot delivery
quotations prevailing at 2:30 p.m. Luxembourg time on the Day of Valuation, as
obtained by the Company and notified by it to the Luxembourg Exchange from one
or more leading banks selected by the Company, in the country of issue of the
Component Currency in question.
If no direct quotations are available for a component currency as of
a Day of Valuation from any of the banks selected by the Company for this
purpose because foreign exchange markets are closed in the country of issue of
that currency or for any other reason, the most recent direct quotations for
that currency obtained by the Company and notified by it to the Luxembourg
Exchange shall be used in computing the equivalents of the ECU on such Day of
Valuation, provided, however, that such most recent quotations may be used only
if they were prevailing in the country of issue not more than two business days
before such Day of Valuation. Beyond such period of two business days, the
Luxembourg Exchange shall determine the U.S. dollar equivalent of such Component
on the basis of cross rates derived from the middle spot delivery quotations for
such component currency and for the U.S. dollar prevailing at 2:30 p.m.
Luxembourg time on such Day of Valuation, as obtained by the Company from one or
more leading banks,
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as selected by the Company (following consultation, if practicable, with the
Company) and notified to the Luxembourg Exchange, in a country other than the
country of issue of such component currency. Within such period of two business
days, the Luxembourg Exchange shall determine the U.S. dollar equivalent of such
Component on the basis of such cross rates if the Company judges that the
equivalent so calculated is more representative than the U.S. dollar equivalent
calculated on the basis of such most recent direct quotations. Unless otherwise
specified by the Company, if there is more than one market for dealing in any
component currency by reason of foreign exchange regulations or for any other
reason, the market to be referred to in respect of such currency shall be that
upon which a non-resident issuer of securities denominated in such currency
would purchase such currency in order to make payments in respect of such
securities.
All determinations made by the Company or the Exchange shall be at
its sole discretion and shall, in the absence of manifest error, be conclusive
for all purposes and binding on the Company and all Holders.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, for the payment of the principal of, premium, if any,
interest on or Liquidated Damages with respect to any Note and remaining
unclaimed for two years after such principal, premium, if any, interest or
Liquidated Damages has become due and payable shall, subject to applicable law,
be paid to the Company on its written request; and the Holder of such Note shall
thereafter look only to the Company for payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in an authorized newspaper in each place of
payment or mail to each such Holder, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days from the date of such publication or mailing, any unclaimed balance of
such money then remaining will be repaid to the Company.
The Company shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue principal at the rate equal
to 1% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace period) at the same
rate to the extent lawful.
Payments by the Company to the Paying Agent of principal and or
interest on the Notes shall be made without deduction for and free of any taxes,
duties, fees or other charges levied on the Company in respect of the Notes by
the EC or any member state thereof or any political subdivision or taxing
authority therein or thereof. Payments to the holders of the Notes will be
subject in all cases to any fiscal or other laws and regulations applicable
thereto.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY.
The Company shall maintain in the Borough of Manhattan, the City of
New York and, so long as the Notes are listed on the Luxembourg Stock Exchange,
in Luxembourg, an office or agency (which may be an office of the Trustee or an
affiliate of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or for exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company shall give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at
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any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York and, so long as the Notes are listed on the
Luxembourg Stock Exchange, in Luxembourg for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of the Company in accordance with Section
2.03 and, so long as the Notes are listed on the Luxembourg Stock Exchange, the
Company also hereby designates Banque Internationale a Luxembourg as another
such office or agency in accordance with Section 2.03 and the rules of the
Luxembourg Stock Exchange.
SECTION 4.03. REPORTS.
(a) Whether or not required by the rules and regulations of the SEC, so
long as any Notes are outstanding, the Company shall furnish to the Holders of
Notes (i) all quarterly and annual financial information that would be required
to be contained in a filing with the SEC on Forms 10-Q and 10-K if the Company
were required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" of the Company and,
with respect to the annual information only, a report thereof by the Company's
certified independent accountants, (ii) all current reports that would be
required to be filed with the SEC on Form 8-K if the Company were required to
file such reports and (iii) any other information that the Company would be
required to disclose pursuant to Section 13 or 15 of the Exchange Act if the
Company were required to disclose such information, in each case, within the
time periods specified in the SEC's rules and regulations. In addition,
following consummation of the Exchange Offer contemplated by the Registration
Rights Agreement, whether or not required by the rules and regulations of the
SEC, the Company shall file a copy of all such information and reports with the
SEC for public availability within the time periods specified in the SEC's rules
and regulations (unless the SEC will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request. The Company shall at all times comply with TIA ss. 314(a).
(b) For so long as any Notes remain outstanding, the Company shall furnish
to the Holders and to securities analysts and prospective investors, upon their
request, the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
SECTION 4.04. COMPLIANCE CERTIFICATE.
(a) The Company shall deliver to the Trustee, within 90 days after the end
of each fiscal year, with such fiscal year as of the date hereof ending on
December 31, an Officers' Certificate stating that a review of the activities of
the Company and its Subsidiaries during the
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preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his or her knowledge the Company has kept, observed, performed and fulfilled
each and every covenant contained in this Indenture and is not in default in the
performance or observance of any of the terms, provisions and conditions of this
Indenture (or, if a Default or Event of Default shall have occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and
what action the Company is taking or proposes to take with respect thereto) and
that to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
interest, if any, on the Notes is prohibited or if such event has occurred, a
description of the event and what action the Company is taking or proposes to
take with respect thereto.
(b) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.03(a) above shall be accompanied by a
written statement of the Company's independent public accountants (who shall be
a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Company has violated
any provisions of Article 4 or Article 5 hereof or, if any such violation has
occurred, specifying the nature and period of existence thereof, it being
understood that such accountants shall not be liable directly or indirectly to
any Person for any failure to obtain knowledge of any such violation.
(c) The Company shall, so long as any of the Notes are outstanding,
deliver to the Trustee, forthwith upon any Officer becoming aware of any Default
or Event of Default, an Officers' Certificate specifying such Default or Event
of Default and what action the Company is taking or proposes to take with
respect thereto.
SECTION 4.05. TAXES.
The Company shall pay, and shall cause each of its Subsidiaries to
pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.06. STAY, EXTENSION AND USURY LAWS.
The Company covenants (to the extent that it may lawfully do so)
that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law
wherever enacted, now or at any time hereafter in force, that may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not, by resort to any such law,
hinder, delay or impede the execution of any power herein granted to the
Trustee, but shall suffer and permit the execution of every such power as though
no such law has been enacted.
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SECTION 4.07. RESTRICTED PAYMENTS.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, directly or indirectly: (i) declare or pay any dividend
or make any distribution on account of the Equity Interests of the Company; (ii)
purchase, redeem or otherwise acquire or retire for value any Equity Interests
of the Company; (iii) voluntarily purchase, redeem or otherwise acquire or
retire for value, prior to any scheduled maturity or prior to any scheduled
repayment or sinking fund payment, as the case may be, in respect of any
Indebtedness of the Company that by its terms is contractually subordinated in
any respect in right of payment to the prior payment of the Notes; or (iv) make
any Investment (all such payments and other actions set forth in clauses (i)
through (iv) above being collectively referred to as "Restricted Payments")
unless, at the time of such Restricted Payment, and after giving effect thereto:
(a) no Default or Event of Default shall have occurred and be
continuing; and
(b) after giving effect to such Restricted Payment on a pro forma
basis, the aggregate amount of all Restricted Payments made on or after the date
of this Indenture shall not exceed the sum of (1) 50% of the Consolidated Net
Income (or, in the case of a Consolidated Net Loss, 100% of such deficit) of the
Company for the period (taken as one accounting period) from January 1, 1998 to
the last day of the last fiscal quarter preceding the date of the proposed
Restricted Payment, plus (2) the aggregate net proceeds, including the fair
market value of property other than cash (as determined by the Board of
Directors, whose good faith determination shall be conclusive and evidenced by a
board resolution filed), received by the Company from the issuance and sale
(other than to a Restricted Subsidiary of the Company, a Restricted Affiliate or
a Restricted Subsidiary of an Affiliate) on or after date of this Indenture of
shares of its Capital Stock (other than Disqualified Stock) (and any other of
its securities convertible into or exchangeable for Capital Stock, upon such
conversion or exchange), or any options, warrants or other rights to purchase
such Capital Stock (other than Disqualified Stock), plus (3) the aggregate net
proceeds, including the fair market value of property other than cash (as
determined by the Board of Directors, whose good faith determination shall be
conclusive and evidenced by a board resolution), received by the Company from
the issuance or sale (other than to a Restricted Subsidiary of the Company, a
Restricted Affiliate or a Restricted Subsidiary of an Affiliate) on or after the
date of this Indenture of any Capital Stock of the Company (other than
Disqualified Stock), of any options, warrants or other rights to purchase such
Capital Stock (other than Disqualified Stock), upon the conversion of, or
exchange for Indebtedness of the Company or a Restricted Subsidiary, a
Restricted Affiliate or a Restricted Subsidiary of a Restricted Affiliate.
The foregoing provisions shall not prohibit (a) the redemption,
repurchase, retirement or other acquisition for value of any Equity Interests or
Subordinated Indebtedness of the Company in exchange for, or out of (x) the net
cash proceeds of the sale (other than to a Subsidiary of the Company) of other
Equity Interests of the Company (other than any Disqualified Stock), (y) the net
cash proceeds of the sale (other than to a Subsidiary of the Company) of
Subordinated Indebtedness other than the Convertible Notes or (z) $33 million;
(b) the defeasance, redemption or repurchase of any subordinated Indebtedness
(in whole or in part) with the net cash proceeds from an incurrence of Permitted
Refinancing Indebtedness; (c) the distribution of noncash assets provided that
the fair market equity value of all such distributions immediately upon
distribution, as determined by an investment banking firm of national standing,
shall not exceed $20 million, provided that any such distribution shall not
include the Company's direct ownership interests in Omnitel; and (e) Permitted
Investments.
The amount of all Restricted Payments (other than cash) shall be the
fair market value on the date of the Restricted Payment of the asset(s) or
securities proposed to be transferred or issued by the Company or such
Restricted Subsidiary, as the case may be, pursuant to the Restricted Payment.
The fair
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market value of any non-cash Restricted Payment shall be determined by the Board
of Directors whose resolution with respect thereto shall be delivered to the
Trustee, such determination to be based upon an opinion or appraisal issued by
an accounting, appraisal or investment banking firm of national standing if such
fair market value exceeds $1.0 million. Not later than the date of making any
Restricted Payment, the Company shall deliver to the Trustee an Officers'
Certificate stating that such Restricted Payment is permitted and setting forth
the basis upon which the calculations required by this Section 4.07 were
computed, together with a copy of any fairness opinion or appraisal required by
this Indenture.
SECTION 4.08. DIVIDEND AND OTHER PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, directly or indirectly, create or otherwise cause or
suffer to exist or become effective any encumbrance or restriction on the
ability of any Restricted Subsidiary or Restricted Affiliate to (a)(i) pay
dividends or make any other distributions to the Company or any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate (A) on its Capital Stock or (B) with respect to any other
interest or participation in, or measured by, its profits, or (ii) pay any
Indebtedness owed to the Company or any Restricted Subsidiary of the Company,
Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate (b) make
loans or advances to the Company or any Restricted Subsidiary of the Company,
Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate or (c)
sell, lease or transfer any of its properties or assets to the Company or any
Restricted Subsidiary of the Company, Restricted Affiliate or Restricted
Subsidiary of a Restricted Affiliate, except for such encumbrances or
restrictions existing under or by reason of (i) Existing Indebtedness as in
effect on the date of this Indenture, (ii) this Indenture and the Notes, (iii)
applicable law, (iv) any instrument governing Indebtedness or Capital Stock of a
Person acquired by the Company or any Restricted Subsidiary of the Company,
Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate as in
effect at the time of such acquisition (except to the extent such Indebtedness
was incurred or Capital Stock issued in connection with or in contemplation of
such acquisition), which encumbrance or restriction is not applicable to the
Company or any Restricted Subsidiary of the Company, Restricted Affiliate or
Restricted Subsidiary of the Affiliate, or the properties or assets of any
Person, other than the Person, or the property or assets of the Person so
acquired, provided that the Consolidated Cash Flow of such Person is not taken
into account in determining whether such acquisition was permitted by the terms
of this Indenture, (v) any Credit Facility permitted under Section 4.09 hereof;
provided, that, with respect to this clause (v), either (x) at or prior to the
time of incurrence of such Indebtedness, the Company receives from a commercial
bank or nationally recognized investment banking firm (which bank or firm may be
a lender or agent for lenders, or an underwriter, placement agent or financial
advisor, under or in respect of such Indebtedness) a letter or opinion to the
effect that the restrictions contained in the agreement or instrument governing
such Indebtedness are reasonable and customary under the circumstances and are
consistent with those provided in prevailing market conditions at the time for
similar financings by borrowers of similar credit quality or (y) at or prior to
the time of incurrence of such Indebtedness, the Board of Directors of the
Company determines in good faith that, based upon one or more proposals from a
commercial bank or nationally recognized investment banking firm (other than a
bank or firm that is a lender or agent for lenders, or an underwriter, placement
agent or financial advisor, under or in respect of such Indebtedness), the
restrictions contained in the agreement or instrument governing such
Indebtedness are consistent with those provided in prevailing market conditions
at the time of similar financings; or (vi) Permitted Refinancing Indebtedness,
provided that the restrictions contained in the agreements governing such
Permitted Refinancing Indebtedness are no more restrictive than those contained
in the agreements governing the Indebtedness being refinanced. A bank or firm
referred to in clause (vi) of the preceding
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sentence shall under no circumstances be responsible or liable to the Holders,
the Trustee, the Company or any other Person, and is hereby released and
absolved of all such responsibility and liability, insofar as the same would
otherwise arise out of or in connection with the execution and delivery of the
letter of opinion referred to therein.
SECTION 4.09. INCURRENCE OF INDEBTEDNESS AND ISSUANCE OF DISQUALIFIED STOCK.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, directly or indirectly, create, incur, issue, assume,
guaranty or otherwise become directly or indirectly liable with respect to
(collectively, "incur") any Indebtedness (including Acquired Debt) and that the
Company will not issue any Disqualified Stock and will not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to issue any shares of preferred stock; provided, however,
that the Company may incur Indebtedness (including Acquired Debt), or issue
shares of Disqualified Stock, if: (i) the Company's Consolidated Debt to
Consolidated Cash Flow Ratio is less than 6.0 to 1, determined on a pro forma
basis (including a pro forma application of the net proceeds therefrom), as if
the additional Indebtedness had been incurred, or the Disqualified Stock had
been issued, as the case may be, at the beginning of the applicable four quarter
period; or (ii) the Company's Consolidated Debt does not exceed 30% of the
Company's Total Market Capitalization, calculated as of the date of incurrence
or issuance and on a pro forma basis after giving effect to such incurrence or
issuance (including a pro forma application of the net proceeds therefrom).
The provisions of the foregoing paragraph will not apply to (a)
Existing Indebtedness; (b) commitments existing as of the date hereof by the
Company and its Subsidiaries relating to capital contributions to Omnitel or OPI
(including the funding commitments under OPI's performance bond); (c) the Notes;
(d) the Convertible Subordinated Notes; (e) intercompany Indebtedness between or
among the Company and a Wholly Owned Restricted Subsidiary of the Company to the
extent permitted by the other provisions of this Indenture; (f) the incurrence
by the Company, a Restricted Subsidiary of the Company, a Restricted Affiliate
or a Restricted Subsidiary of a Restricted Affiliate of Permitted Refinancing
Indebtedness in exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, redeem, defease or refund other Indebtedness of the
Company, a Restricted Subsidiary of the Company, a Restricted Affiliate or a
Restricted Subsidiary of a Restricted Affiliate; (g) the incurrence by a
Restricted Subsidiary of the Company, a Restricted Affiliate or a Restricted
Subsidiary of a Restricted Affiliate of Project Financing, provided that no
single Restricted Subsidiary (together with its consolidated Restricted
Subsidiaries and its Restricted Affiliates) and no single Restricted Affiliate
(together with its consolidated Restricted Subsidiaries and its Restricted
Affiliates), pro forma for such incurrence and the application of the net
proceeds therefrom, may, on the date of such incurrence, have an aggregate
principal amount of Project Financing outstanding, determined without
duplication, that exceeds the greater of (1) 5.0x the Consolidated Cash Flow of
such Restricted Subsidiary or Restricted Affiliate for the most recently
completed four full fiscal quarters for which internal financial statements are
available as of the date of such incurrence (calculated on a pro forma basis as
if such Project Financing had been incurred and the proceeds therefrom applied
at the beginning of the applicable four-quarter period) or (2) 200% of the
Consolidated Invested Equity Capital of such Restricted Subsidiary or Restricted
Affiliate at such time; (h) the incurrence by the Company of Subordinated
Indebtedness in an aggregate principal amount (or accreted value, as applicable)
at any one time outstanding (with each issue measured as of the date of its
incurrence and without giving effect to subsequent accretion) not to exceed $20
million (or the equivalent amount in one or more foreign currencies); (i)
Guarantees by the Company or a Restricted Subsidiary of the Company of up
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to $10 million in principal amount of Project Financing of the Company's
Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of its
Restricted Affiliates at any one time outstanding and related accrued interest;
(j) to the extent an Investment is permitted to be made by the Company or a
Restricted Subsidiary of the Company, Restricted Affiliate or Restricted
Subsidiary of a Restricted Affiliate under Section 4.07 hereof, Guarantees by
the Company or such Restricted Subsidiary of the Company, Restricted Affiliate
or Restricted Subsidiary of a Restricted Affiliate of its obligation to make
such Investment; (k) the incurrence by the Company of additional Subordinated
Indebtedness in an aggregate principal amount (or accreted value, as applicable)
at any one time outstanding (with each issue measured at the date of its
incurrence and without giving affect to subsequent accretion) not to exceed two
times the amount (or the equivalent amount in one or more foreign currencies) of
Equity Offering Proceeds that have been received by the Company since the date
hereof and not used to fund Restricted Payments; (l) Non-Recourse Pledges in
connection with Project Financings; (m) Hedging Obligations so long as such
obligations relate to, and do not have a notional amount greater than,
obligations permitted hereunder in respect of Indebtedness or commitments to
make Investments; (n) any Indebtedness outstanding from time to time under a
Credit Facility; provided, the aggregate amount of such Indebtedness outstanding
at any one time shall not exceed $25 million; (o) Purchase Money Debt, provided
the aggregate amount of such Indebtedness outstanding at any time shall not
exceed $25 million; (p) additional Indebtedness of the Company or its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates, in an aggregate principal amount (or accreted value, as applicable)
not to exceed $20 million at any one time outstanding; (q) additional
Indebtedness (other than Subordinated Indebtedness) of the Company or its
Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of
Restricted Affiliates, in an aggregate principal amount (or accreted value, as
applicable) not to exceed the excess, if any, of (1) the amount of Implied POP
Senior Indebtedness less (2) $240 million; and (r) additional Subordinated
Indebtedness in an aggregate principal amount (or accreted value, as applicable)
not to exceed the excess, if any, of (1) the amount of Implied POP Subordinated
Indebtedness less (2) $75 million.
The Board of Directors may designate a Restricted Subsidiary of the
Company or of a Restricted Affiliate to be an Unrestricted Subsidiary and may
designate a Restricted Affiliate to be an Unrestricted Affiliate if no Default
or Event of Default shall have occurred and be continuing, and if, after giving
pro forma effect to such designation, the Company would have been permitted to
make at least $1.00 of additional Investments pursuant to clause (f) of the
definition of Permitted Investments. Upon the designation of any Restricted
Subsidiary as an Unrestricted Subsidiary, or the designation of any Restricted
Affiliate as an Unrestricted Affiliate, all previous Investments by the Company
and the Company's Pro Rata Portion of any Investments by any of its Restricted
Subsidiaries or Restricted Affiliates in such Restricted Subsidiary or
Restricted Affiliate (in all other cases) will be deemed to constitute an
Investment made on the date of such designation in an Unrestricted Subsidiary or
Unrestricted Affiliate, as applicable, in an amount equal to the greatest of (x)
the aggregate original fair market value of such Investments (or the Company's
Pro Rata Portion thereof, as applicable) as determined in good faith by the
Company's Board of Directors, (y) the net book value of such Investments at the
time of such designation (or the Company's Pro Rata Portion thereof, as
applicable), and (z) the fair market value of such Investments at the time of
such designation (or the Company's Pro Rata Portion thereof, as applicable) as
determined in good faith by the Company's Board of Directors. Such designation
will only be permitted if such Investment (or the Company's Pro Rata Portion
thereof, as applicable) would be permitted at such time by the terms under
Section 4.07 hereof and if such Restricted Subsidiary or Restricted Affiliate
otherwise meets the definition of an Unrestricted Subsidiary or an Unrestricted
Affiliate, as applicable, and has no Indebtedness other than Non-Recourse Debt
with respect to the Company and its Restricted Subsidiaries, its Restricted
Affiliates and Restricted Subsidiaries of Restricted Affiliates.
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The Board of Directors may at any time designate any Unrestricted
Subsidiary to be a Restricted Subsidiary and may designate any Unrestricted
Affiliate to be a Restricted Affiliate; provided, that such designation shall be
deemed to be an incurrence of Indebtedness by a Restricted Subsidiary or
Restricted Affiliate, as applicable, of all outstanding Indebtedness of such
Unrestricted Subsidiary or Unrestricted Affiliate, as applicable, and such
designation shall only be permitted if (1) no Default or Event of Default shall
have occurred and be continuing, (2) immediately after giving pro forma effect
to such designation, all Indebtedness of the Subsidiary or Affiliate so
designated would be permitted under Section 4.09 hereof if it were incurred by a
Restricted Subsidiary or Restricted Affiliate, as applicable, on the date of
designation and (3) such designation does not and will not result in the
creation of any Lien on any asset of the Company or any of its Restricted
Subsidiaries (including the Subsidiary so designated), except Liens permitted by
this Indenture to be incurred.
SECTION 4.10. ASSET SALES
The Company will not, and will not permit any Restricted Subsidiary
of the Company, Restricted Affiliate or Restricted Subsidiary of a Restricted
Affiliate to, engage in an Asset Sale unless (i) no Event of Default is existing
or no Default or Event of Default would arise by virtue of such Asset Sale, (ii)
the Company (or the applicable Restricted Subsidiary or Restricted Affiliate, as
the case may be) receives consideration at the time of such Asset Sale at least
equal to the fair market value (evidenced by (x) a resolution of the Board of
Directors so long as the Company is a publicly-traded entity or (y) an opinion
as to the fairness of the transaction from a financial point of view by an
investment banking firm of national standing if the Company is not a
publicly-traded entity) of the assets sold or otherwise disposed of and (iii) at
least 85% of the consideration therefor received by the Company or such
Restricted Subsidiary or Restricted Affiliate is in the form of cash or readily
marketable cash equivalents; provided, however, that the amount of (A) any
liabilities of the Company, any Restricted Subsidiary or Restricted Affiliate as
shown on the Company's or such Restricted Subsidiary's or Restricted Affiliate's
most recent balance sheet or in the notes thereto that are assumed by the
transferee of any such asset sale and (B) any notes or other obligations
received by the Company or such Restricted Subsidiary or Restricted Affiliate
from such transferee that are immediately converted or are converted within 60
days by the Company or such Restricted Subsidiary or Restricted Affiliate into
cash (to the extent of the cash received), shall be deemed to be cash for
purposes of this paragraph. The foregoing shall not apply to a sale or other
transfer of any direct interest in OPI which is prohibited in all instances.
Any Net Proceeds from an Asset Sale that are not applied within 12
months after such Asset Sale to make a Permitted Investment (other than an
Investment in Cash Equivalents) will be deemed to constitute "Excess Proceeds."
Pending final application of any Net Proceeds of an Asset Sale to a Permitted
Investment (other than Cash Equivalents) or to an Asset Sale Offer, such Net
Proceeds may only be invested in Cash Equivalents. When the aggregate amount of
Excess Proceeds exceeds $5 million and upon completion of the Asset Sale Offer
required under the Outstanding Notes Indenture, the Company will be required to
make an offer to all Holders of Notes (an "Asset Sale Offer") to purchase the
maximum principal amount of Notes that may be purchased out of the Excess
Proceeds, at an offer price in cash equal to 100% of the Accreted Value thereof
as of the date of purchase plus Liquidated Damages thereon, if any, in
accordance with the procedures set forth in this Indenture. To the extent that
the aggregate Accreted Value of Notes tendered pursuant to an Asset Sale Offer
is less than the Excess Proceeds to be applied to purchase Notes, the Company
may use any remaining Excess Proceeds for any purpose permitted by the other
provisions of this Indenture. If the aggregate Accreted Value of Notes
surrendered by Holders thereof exceeds the amount of Excess Proceeds, the
Trustee, upon its receipt from the Company of notice and
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instruction, will select the Notes to be purchased on a pro rata basis with
appropriate adjustments so that only Notes in authorized denominations will be
purchased. Upon completion of each Asset Sale Offer, the amount of Excess
Proceeds shall be reset at zero. The Company will comply with the requirements
of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent such laws and regulations are applicable to
an Asset Sale Offer.
Notwithstanding the foregoing, to the extent that the Company or any
of its Restricted Subsidiaries or Restricted Affiliates receives securities or
other noncash property or assets as proceeds of an Asset Sale (which proceeds
shall not exceed 25% of the total initial consideration), such securities and
other noncash proceeds shall not be treated as Net Proceeds of an Asset Sale
unless and until the Company receives cash or Cash Equivalents from a sale,
repayment, exchange, redemption or retirement of, or extraordinary dividend or
return of capital on, such securities or other noncash property and then shall
be treated as Net Proceeds only to the extent of the cash or Cash Equivalents
received.
SECTION 4.11. TRANSACTIONS WITH AFFILIATES.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, sell, lease, transfer or otherwise dispose of any of
its properties or assets to, or purchase any property or assets from, or enter
into or amend any contract, agreement, understanding, loan, advance or Guarantee
with, or for the benefit of, any Affiliate of the Company (each of the
foregoing, an "Affiliate Transaction"), unless (a) such Affiliate Transaction is
on terms that are fair and reasonable to the Company or the relevant Restricted
Subsidiary or Restricted Affiliate and (b) the Company delivers to the Trustee
(i) with respect to any Affiliate Transaction involving aggregate payments in
excess of $5 million, a resolution of the Board of Directors set forth in an
Officers' Certificate to the effect that such Affiliate Transaction complies
with clause (a) above and that such Affiliate Transaction has been approved by a
majority of the members of the Board of Directors disinterested with respect to
such transaction and (ii) with respect to any Affiliate Transaction involving
aggregate payments in excess of $10 million, an opinion as to the fairness to
the Company or such Restricted Subsidiary or Restricted Affiliate from a
financial point of view issued by an investment banking firm of national
standing together with an Officers' Certificate to the effect that such opinion
complies with this clause (ii); provided, however, that (i) a Permitted
Investment in a joint venture in which none of the other participants in the
joint venture is an Affiliate of the Company shall be deemed not to be an
Affiliate Transaction; (ii) the procurement of management services from NTL
shall be deemed not to be an Affiliate Transaction; and (iii) joint ventures in
a Related Business with NTL or CoreComm in which the Company's interest is
directly proportionate to its debt and equity contributions shall require the
approval of a majority of the Board of Directors (rather than of the
disinterested members thereof).
The foregoing restrictions shall not apply to (i) reasonable fees
and compensation paid to, and indemnity provided on behalf of, officers,
directors, employees or consultants of the Company or any Subsidiary of the
Company as determined in good faith by the Company's Board of Directors; (ii)
transactions exclusively between or among the Company and any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates or exclusively between or among such entities, provided such
transactions are not otherwise prohibited by this Indenture; (iii) any
agreements as in effect as of the issue date of the Notes or any amendment
thereto or any transaction contemplated thereby (including pursuant to any
amendment thereto) in any replacement agreement thereto so long as any such
amendment or replacement agreement is not more disadvantageous to the Holders in
any material respect than the original agreement as in effect on the issue date
of the Notes, in each case including any actions by
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the Company that are required to comply with such agreements; (v) Restricted
Payments permitted by this Indenture; (vi) any Permitted Investment; (vii)
transactions permitted by, and complying with, the provisions of Section 5.01
hereof; (viii) any payment, issuance of securities or other payments, awards or
grants, in cash or otherwise, pursuant to, or the funding of, employment
arrangements and plans approved by the Board of Directors of the Company; (ix)
the grant of stock options or similar rights to employees and directors of the
Company and its Subsidiaries pursuant to plans and employment contracts approved
by the Board of Directors of the Company; or (x) loans or advances to officers,
directors or employees of the Company or its Restricted Subsidiaries, not in
excess of $5 million at any one time outstanding.
SECTION 4.12. LIENS.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, directly or indirectly, create, incur, assume or
otherwise cause or suffer to exist any Lien of any kind (other than Permitted
Liens) upon any property or assets, now owned or hereafter acquired, of the
Company or any such Restricted Subsidiary or Restricted Affiliate, or upon any
income or profits therefrom or assign or convey any right to receive income
therefrom securing any Indebtedness unless the Notes are secured equally and
ratably; provided that the Company shall not incur any Lien on its direct
interest in Omnitel. The foregoing restrictions will not apply to Permitted
Liens.
SECTION 4.13. LIMITATIONS ON LINE OF BUSINESS.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, directly or indirectly engage in any line or lines of
business other than a Related Business.
SECTION 4.14. CORPORATE EXISTENCE.
Subject to Article 5 hereof, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
of its Subsidiaries, in accordance with the respective organizational documents
(as the same may be amended from time to time) of the Company or any such
Subsidiary and (ii) the rights (charter and statutory), licenses and franchises
of the Company and its Subsidiaries; provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the
corporate, partnership or other existence of any of its Subsidiaries, if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and its Subsidiaries,
taken as a whole, and that the loss thereof is not adverse in any material
respect to the Holders of the Notes.
SECTION 4.15. OFFER TO REPURCHASE UPON CHANGE OF CONTROL.
(a) Upon the occurrence of a Change of Control, the Company shall make an
offer (a "Change of Control Offer") to each Holder to repurchase all or any part
(equal to EURO 1,000 in principal amount at maturity or an integral multiple
thereof) of each Holder's Notes at an offer price in cash equal to 101% of the
Accreted Value thereon as of the date of purchase, plus Liquidated Damages, if
any, on the date of purchase (if prior to April 1, 2003) or 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase (if on or after
April 1, 2003) (in either case, the "Change of
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Control Payment"). Within 10 days following any Change of Control, the Company
shall mail a notice to each Holder stating: (1) that the Change of Control Offer
is being made pursuant to this Section 4.15 and that all Notes tendered will be
accepted for payment; (2) the purchase price and the purchase date, which shall
be no later than 30 business days from the date such notice is mailed (the
"Change of Control Payment Date"); (3) that any Note not tendered will continue
to accrete or accrue, as applicable, interest; (4) that, unless the Company
defaults in the payment of the Change of Control Payment, all Notes accepted for
payment pursuant to the Change of Control Offer shall cease to accrete or
accrue, as applicable, interest after the Change of Control Payment Date; (5)
that Holders electing to have any Notes purchased pursuant to a Change of
Control Offer will be required to surrender the Notes, with the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes completed, to
the Paying Agent at the address specified in the notice prior to the close of
business on the third Business Day preceding the Change of Control Payment Date;
(6) that Holders will be entitled to withdraw their election if the Paying Agent
receives, not later than the close of business on the second Business Day
preceding the Change of Control Payment Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder, the principal
amount of Notes delivered for purchase, and a statement that such Holder is
withdrawing his election to have the Notes purchased; and (7) that Holders whose
Notes are being purchased only in part will be issued new Notes equal in
principal amount to the unpurchased portion of the Notes surrendered, which
unpurchased portion must be equal to EURO 1,000 in principal amount or an
integral multiple thereof. The Company shall comply with the requirements of
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 connection
with the repurchase of Notes in connection with a Change of Control.
(b) On the Change of Control Payment Date, the Company shall, to the
extent lawful, (1) accept for payment all Notes or portions thereof properly
tendered pursuant to the Change of Control Offer, (2) deposit with the Paying
Agent an amount equal to the Change of Control Payment in respect of all Notes
or portions thereof so tendered and (3) deliver or cause to be delivered to the
Trustee the Notes so accepted together with an Officers' Certificate stating the
aggregate principal amount at maturity of Notes or portions thereof being
purchased by the Company. The Paying Agent shall promptly mail to each Holder of
Notes so tendered payment in an amount equal to the purchase price for the
Notes, and the Trustee shall promptly authenticate and mail (or cause to be
transferred by book entry) to each Holder a new Note equal in principal amount
at maturity to any unpurchased portion of the Notes surrendered by such Holder,
if any; provided, that each such new Note shall be in a principal amount of EURO
1,000 or an integral multiple thereof. The Company shall publicly announce the
results of the Change of Control Offer on or as soon as practicable after the
Change of Control Payment Date.
(c) Notwithstanding anything to the contrary in this Section 4.15, the
Company shall not be required to make a Change of Control Offer upon a Change of
Control if a third party makes the Change of Control Offer in the manner, at the
times and otherwise in compliance with the requirements set forth in this
Section 4.15 and Section 3.09 hereof and purchases all Notes validly tendered
and not withdrawn under such Change of Control Offer.
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SECTION 4.16. LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, conduct its business in a fashion that would cause it
to be required to register as an "investment company" (as that term is defined
in the Investment Company Act of 1940, as amended), or otherwise become subject
to regulation under the Investment Company Act of 1940.
SECTION 4.17. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS.
The Company shall not, and shall not permit any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to, enter into any Sale/Leaseback Transaction with respect
to any property unless (i) the Company or such Restricted Subsidiary or
Restricted Affiliate would be entitled to (A) incur Indebtedness in an amount
equal to the Attributable Debt with respect to such Sale/Leaseback Transaction
pursuant to Section 4.09 hereof and (B) create a Lien on such property securing
such Attributable Debt pursuant to Section 4.12 hereof and (ii) the transfer of
such property is permitted by, and the Company or such Restricted Subsidiary or
Restricted Affiliate applies the proceeds of such transaction in compliance
with, Section 4.10 hereof.
SECTION 4.18. PAYMENTS FOR CONSENT.
Neither the Company nor any of its Subsidiaries shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of any Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of this
Indenture or the Notes unless such consideration is offered to be paid or is
paid to all Holders of the Notes that consent, waive or agree to amend in the
time frame set forth in the solicitation documents relating to such consent,
waiver or agreement.
ARTICLE 5.
SUCCESSORS
SECTION 5.01. MERGER, CONSOLIDATION, OR SALE OF ASSETS.
The Company shall not consolidate or merge with or into another
corporation, Person or entity (whether or not the Company is the surviving
corporation), or sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its properties or assets in one or more related
transactions, unless (i) the Company is the surviving corporation or the entity
or the Person formed by or surviving any such consolidation or merger (if other
than the Company) or to which a sale, assignment, transfer, lease, conveyance or
other disposition shall have been made is a corporation organized or existing
under the laws of the United States, any state thereof or the District of
Columbia; (ii) the entity or Person formed by or surviving any such
consolidation or merger (if other than the Company) or the entity or Person to
which a sale, assignment, transfer, lease, conveyance or other disposition shall
have been made assumes all the obligations of the Company pursuant to the
Registration Rights Agreement, this Indenture, and the Notes; (iii) immediately
after such transaction no Default or Event of Default exists; and (iv) the
Company or any entity or Person formed by or surviving any such consolidation or
merger, or to which a sale, assignment, transfer, lease, conveyance or other
disposition shall have been made (A) will have Consolidated Net Worth
(immediately after the transaction but prior to any purchase accounting
adjustments resulting from the transaction which increases Consolidated Net
Worth) equal to or greater than the Consolidated Net Worth
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of the Company immediately preceding the transaction and (B) would, at the time
of such transaction and after giving pro forma effect thereto (as if such
transaction had occurred at the beginning of the most recently ended
four-quarter period for which internal financial statements are available
immediately preceding the date of such transaction, for purposes of calculating
the Consolidated Debt to Consolidated Cash Flow Ratio, and as if such
transaction had occurred as of such date for purposes of calculating
Consolidated Debt as a percentage of Total Market Capitalization), be permitted
to incur at least $1.00 of additional Indebtedness pursuant to the first
paragraph of Section 4.09 hereof.
SECTION 5.02. SUCCESSOR CORPORATION SUBSTITUTED.
Upon any consolidation or merger, or any sale, assignment, transfer,
lease, conveyance or other disposition of all or substantially all of the assets
of the Company in accordance with Section 5.01 hereof, the successor corporation
formed by such consolidation or into or with which the Company is merged or to
which such sale, assignment, transfer, lease, conveyance or other disposition is
made shall succeed to, and be substituted for (so that from and after the date
of such consolidation, merger, sale, lease, conveyance or other disposition, the
provisions of this Indenture referring to the "Company" shall refer instead to
the successor corporation and not to the Company), and may exercise every right
and power of the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein; provided, however, that
the predecessor Company shall not be relieved from the obligation to pay the
principal of and interest on the Notes except in the case of a sale of all of
the Company's assets that meets the requirements of Section 5.01 hereof.
ARTICLE 6.
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT.
An "Event of Default" occurs if:
(a) the Company fails to pay interest on, or Liquidated Damages with
respect to, the Notes when the same becomes due and payable and such default
continues for a period of 30 days;
(b) the Company defaults in the payment when due of principal, Accreted
Value or Liquidated Damages, if any, of the Notes when the same becomes due and
payable at maturity, upon acceleration, repurchase or otherwise;
(c) the Company or any Restricted Subsidiary of the Company, Restricted
Affiliate or Restricted Subsidiary of a Restricted Affiliate fails to comply for
30 days after notice with any of its obligations under any of the provisions of
Section 4.07, 4.09, 4.10 or 4.15 hereof;
(d) the Company or any Restricted Subsidiary of the Company, Restricted
Affiliate or Restricted Subsidiary of Restricted Affiliate fails to observe or
perform any other covenant, representation, warranty or other agreement in this
Indenture or the Notes for 60 days after notice to the Company by the Trustee or
the Holders of at least 25% in aggregate principal amount of the Notes then
outstanding voting as a single class;
(e) a default occurs under any mortgage, indenture or instrument under
which there may be issued or by which there may be secured or evidenced any
Indebtedness for money
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borrowed by the Company or any of its Restricted Subsidiaries or Restricted
Affiliates or Restricted Subsidiary of Restricted Affiliate or Omnitel or OPI,
whether such Indebtedness or Guarantee now exists, or is created after the date
of this Indenture, which default (a) is caused by a failure to pay principal of
or premium, if any, or interest on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness (a "Payment Default") or (b)
results in the acceleration of such Indebtedness prior to its express maturity
and, in each case, the principal amount of such Indebtedness, together with the
principal amount of any other such Indebtedness the maturity of which has been
so accelerated, aggregates $5 million or more (or, in the case of Omnitel or
OPI, $25 million or more);
(f) a final judgment or final judgments for the payment of money are
entered by a court or courts of competent jurisdiction against the Company or
any of its Restricted Subsidiaries or Restricted Affiliates or Restricted
Subsidiary of Restricted Affiliate or Omnitel or OPI and such judgment or
judgments remain undischarged for a period (during which execution shall not be
effectively stayed) of 60 days, provided that the aggregate of all such
undischarged judgments exceeds $5 million (or, in the case of Omnitel or OPI,
$25 million or more);
(g) there is a revocation of the License or a governmental action that has
the effect of preventing OPI from conducting material operations for a period in
excess of 180 continuous days;
(h) the Company or any of its Restricted Subsidiaries, Restricted
Affiliates or Restricted Subsidiaries of Restricted Affiliates or Omnitel or OPI
pursuant to or within the meaning of Bankruptcy Law or other similar laws:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due; or
(i) a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law or other similar laws that:
(i) is for relief against the Company or any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates or Omnitel or OPI in an involuntary case;
(ii) appoints a custodian of the Company or any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates or Omnitel or OPI or for all or substantially all of the property
of the Company or any of its Restricted Subsidiaries, Restricted Affiliates
or Restricted Subsidiaries of Restricted Affiliates or Omnitel or OPI; or
(iii) orders the liquidation of the Company or any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates or Omnitel or OPI;
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and the order or decree remains unstayed and in effect for 60 consecutive
days.
SECTION 6.02. ACCELERATION.
If any Event of Default (other than an Event of Default specified in
clause (h) or (i) of Section 6.01 hereof with respect to the Company, any
Restricted Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of
Restricted Affiliates or Omnitel or OPI) occurs and is continuing, the Trustee
or the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable immediately. Upon any such
declaration, the Notes shall become due and payable immediately. Notwithstanding
the foregoing, if an Event of Default specified in clause (h) or (i) of Section
6.01 hereof occurs with respect to the Company, any of its Restricted
Subsidiaries, Restricted Affiliates or Restricted Subsidiaries of Restricted
Affiliates or Omnitel or OPI, all outstanding Notes shall be due and payable
immediately without further action or notice. The Holders of a majority in
principal amount of the Notes then outstanding may, by notice to the Trustee, on
behalf of the Holders of all of the Notes outstanding, waive any existing
Default or Event of Default and its consequences under this Indenture except a
Default or Event of Default relating to the payment of principal or premium on
the Notes (which would be required to be unanimous).
If an Event of Default occurs on or after April 1, 2002 by reason of
any willful action (or inaction) taken (or not taken) by or on behalf of the
Company with the intention of avoiding payment of the premium that the Company
would have had to pay if the Company then had elected to redeem the Notes
pursuant to Section 3.07 hereof, then, upon acceleration of the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, anything in this Indenture or in the Notes to the
contrary notwithstanding. If an Event of Default occurs prior to April 1, 2002
by reason of any willful action (or inaction) taken (or not taken) by or on
behalf of the Company with the intention of avoiding the prohibition on
redemption of the Notes prior to such date, then, upon acceleration of the
Notes, an additional premium shall also become and be immediately due and
payable in an amount that would otherwise have been due and payable pursuant to
Section 3.07 hereof had the Notes been redeemed on the year after April 1, 2002.
SECTION 6.03. OTHER REMEDIES.
If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy to collect the payment of principal amount or
Accreted Value of premium, if any, and 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. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law.
SECTION 6.04. WAIVER OF PAST DEFAULTS.
Holders of not less than a majority in aggregate principal amount at
maturity of the then outstanding Notes by notice to the Trustee may on behalf of
the Holders of all of the Notes waive an existing Default or Event of Default
and its consequences hereunder, except a continuing Default or Event of Default
in the payment of the principal amount or Accreted Value of, premium and
Liquidated Damages,
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if any, or interest on, the Notes (including in connection with an offer to
purchase) (provided, however, that the Holders of a majority in aggregate
principal amount of the then outstanding Notes may rescind an acceleration and
its consequences, including any related payment default that resulted from such
acceleration). 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 impair any right consequent thereon.
SECTION 6.05. CONTROL BY MAJORITY.
Holders of a majority in principal amount of the then outstanding
Notes may direct the time, method and place of conducting any proceeding for
exercising any remedy available to the Trustee or exercising any trust or power
conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
SECTION 6.06. LIMITATION ON SUITS.
A Holder of a Note may pursue a remedy with respect to this
Indenture or the Notes only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in principal amount of the then
outstanding Notes make a written request to the Trustee to pursue the remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request and the offer and, if requested, the provision of
indemnity; and
(e) during such 60-day period the Holders of a majority in principal
amount of the then outstanding Notes do not give the Trustee a direction
inconsistent with the request.
A Holder of a Note may not use this Indenture to prejudice the
rights of another Holder of a Note or to obtain a preference or priority over
another Holder of a Note.
SECTION 6.07. RIGHTS OF HOLDERS OF NOTES TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of
any Holder of a Note to receive payment of principal amount or Accreted Value of
premium and Liquidated Damages, if any, and interest on the Note, on or after
the respective due dates expressed in the Note (including in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on
or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
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SECTION 6.08. COLLECTION SUIT BY TRUSTEE.
If an Event of Default specified in Section 6.01(a) or (b) occurs
and is continuing, the Trustee is authorized to recover judgment in its own name
and as trustee of an express trust against the Company for the whole amount of
principal amount or Accreted Value of, premium and Liquidated Damages, if any,
and interest remaining unpaid on the Notes and interest on overdue principal
and, to the extent lawful, interest and such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM.
The Trustee is authorized 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 the
Holders of the Notes allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Notes), its creditors or its property and shall
be entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Holder to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise. Nothing herein contained shall be
deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Holder any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder, or to authorize the
Trustee to vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES.
If the Trustee collects any money pursuant to this Article, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts due
under Section 7.07 hereof, including payment of all compensation, expense and
liabilities incurred, and all advances made, by the Trustee and the costs and
expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the Notes
for principal, premium and Liquidated Damages, if any, and interest, ratably,
without preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium and Liquidated Damages, if any and
interest, respectively; and
Third: to the Company or to such party as a court of competent
jurisdiction shall direct.
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The Trustee may fix a record date and payment date for any payment
to Holders of Notes pursuant to this Section 6.10.
SECTION 6.11. 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 a 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 does not apply to a suit by the Trustee, a suit by a Holder of a
Note pursuant to Section 6.07 hereof, or a suit by Holders of more than 10% in
principal amount of the then outstanding Notes.
SECTION 6.12. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF NOTES.
All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust in favor of the Holders, and any recovery of
judgment shall, after provision for the payment of compensation to, and
expenses, fees, disbursements and advances of, the Trustee, its agents and
counsel, be for the ratable benefit of the Holders of the Notes in respect of
which such judgment has been recovered.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes in Section 2.07, 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.
ARTICLE 7.
TRUSTEE
SECTION 7.01. 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 its exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express
provisions of this Indenture and the Trustee need perform only those duties
that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against
the Trustee; and
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(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. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture.
(c) The Trustee may not be relieved from liabilities 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;
(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; and
(iii) the Trustee shall not be liable with respect to any action it takes
or omits to take in good faith in accordance with a direction received by it
pursuant to Section 6.05 hereof.
(d) Whether or not therein expressly so provided, every provision of this
Indenture that in any way relates to the Trustee is subject to paragraphs (a),
(b), and (c) of this Section.
(e) No provision of this Indenture shall require the Trustee to expend or
risk its own funds or incur any liability. The Trustee shall be under no
obligation to exercise any of its rights and powers under this Indenture at the
request of any Holders, unless such Holder shall have offered to the Trustee
security and indemnity satisfactory to it against any loss, liability or
expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE.
(a) The Trustee may conclusively rely upon any document believed by it to
be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers' Certificate or Opinion of Counsel. The Trustee may consult with
counsel and the written advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection from liability in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Indenture.
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(e) Unless otherwise specifically provided in this Indenture, any demand,
request, direction or notice from the Company shall be sufficient if signed by
an Officer of the Company.
(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 unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities that might be
incurred by it in compliance with such request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as trustee or resign. Any Agent may do the same with like
rights and duties. The Trustee is also subject to Sections 7.10 and 7.11 hereof.
SECTION 7.04. TRUSTEE'S DISCLAIMER.
The Trustee shall not be responsible for and makes no representation
as to the validity or adequacy of this Indenture or the Notes, it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company's direction under any provision of this
Indenture, it shall not be responsible for the use or application of any money
received by any Paying Agent other than the Trustee, and it shall not be
responsible for any statement or recital herein or any statement in the Notes or
any other document in connection with the sale of the Notes or pursuant to this
Indenture other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULTS.
If a Default or Event of Default occurs and is continuing and if it
is known to the Trustee, the Trustee shall mail to Holders of Notes a notice of
the Default or Event of Default within 90 days after it occurs. Except in the
case of a Default or Event of Default in payment of principal of, premium, if
any, or interest on any Note, the Trustee may withhold the notice if and so long
as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS OF THE NOTES.
Within 60 days after each May 15 beginning with the May 15 following
the date of this Indenture, and for so long as Notes remain outstanding, the
Trustee shall mail to the Holders of the Notes a brief report dated as of such
reporting date that complies with TIA ss. 313(a) (but if no event described in
TIA ss. 313(a) has occurred within the twelve months preceding the reporting
date, no report need be transmitted). The Trustee also shall comply with TIA ss.
313(b)(2). The Trustee shall also transmit by mail all reports as required by
TIA ss. 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA ss. 313(d). The
Company shall promptly notify the Trustee when the Notes are listed on any stock
exchange.
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SECTION 7.07. COMPENSATION AND INDEMNITY.
The Company shall pay to the Trustee from time to time reasonable
compensation for its acceptance of this Indenture and services hereunder. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee promptly
upon request for all reasonable disbursements, advances and expenses incurred or
made by it in addition to the compensation for its services. Such expenses shall
include the reasonable compensation, disbursements and expenses of the Trustee's
agents and counsel.
The Company shall indemnify the Trustee against any and all losses,
liabilities or expenses incurred by it arising out of or in connection with the
acceptance or administration of its duties under this Indenture, including the
costs and expenses of enforcing this Indenture against the Company (including
this Section 7.07) and defending itself against any claim (whether asserted by
the Company or any Holder or any other person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder, except to
the extent any such loss, liability or expense may be attributable to its
negligence or bad faith. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. Failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Indenture. Any lien in favor of a
predecessor Trustee shall be senior to any lien in favor of the current Trustee.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 6.01(h) or (i) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA ss. 313(b)(2) to
the extent applicable.
SECTION 7.08. 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.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Holders of Notes of a
majority in principal amount of the then outstanding Notes may remove the
Trustee by so notifying the Trustee and the Company in writing. The Company may
remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
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(c) a custodian or 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 Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Notes may appoint a
successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of Notes of at least 10% in principal amount of the then outstanding
Notes may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
If the Trustee, after written request by any Holder of a Note who
has been a Holder of a Note for at least six months, fails to comply with
Section 7.10, such Holder of a Note may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, 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. The successor Trustee shall mail a notice of its
succession to Holders of the Notes. The retiring Trustee shall promptly transfer
all property held by it as Trustee to the successor Trustee, provided all sums
owing to the Trustee hereunder have been paid and subject to the Lien provided
for in Section 7.07 hereof. Notwithstanding replacement of the Trustee pursuant
to this Section 7.08, the Company's obligations under Section 7.07 hereof shall
continue for the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC.
If the Trustee consolidates, merges or converts into, or transfers
all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.
There shall at all times be a Trustee hereunder that is a
corporation organized and doing business under the laws of the United States of
America or of any state thereof that is authorized under such laws to exercise
corporate trustee power, that is subject to supervision or examination by
federal or state authorities and that has a combined capital and surplus of at
least $50 million as set forth in its most recent published annual report of
condition.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA ss. 310(a)(1), (2) and (5). The Trustee is subject to TIA
ss. 310(b).
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SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY.
The Trustee is subject to TIA ss. 311(a), excluding any creditor
relationship listed in TIA ss. 311(b). A Trustee who has resigned or been
removed shall be subject to TIA ss. 311(a) to the extent indicated therein.
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
SECTION 8.01. OPTION TO EFFECT LEGAL DEFEASANCE OR COVENANT DEFEASANCE.
The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, elect to
have either Section 8.02 or 8.03 hereof be applied to all outstanding Notes upon
compliance with the conditions set forth below in this Article 8.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 shall survive.
SECTION 8.02. LEGAL DEFEASANCE AND DISCHARGE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes on the
date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company shall be
deemed to have paid and discharged the entire Indebtedness represented by the
outstanding Notes, which shall thereafter be deemed to be "outstanding" only for
the purposes of Section 8.05 hereof and the other Sections of this Indenture
referred to in (a) and (b) below, and to have satisfied all its other
obligations under such Notes and this Indenture (and the Trustee, on demand of
and at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following provisions which shall survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of
outstanding Notes to receive solely from the trust fund described in Section
8.04 hereof, and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (b) the Company's obligations with respect to such Notes under Article
2 and Section 4.02 hereof, (c) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and the Company's obligations in connection therewith
and (d) this Article 8. Subject to compliance with this Article 8, the Company
may exercise its option under this Section 8.02 notwithstanding the prior
exercise of its option under Section 8.03 hereof.
SECTION 8.03. COVENANT DEFEASANCE.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be released from its
obligations under the covenants contained in Sections 4.07, 4.08, 4.09, 4.10,
4.11, 4.12, 4.13, 4.15, 4.17 and 4.18 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, Covenant
Defeasance means that, with
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respect to the outstanding Notes, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in
any such covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such covenant or by reason of any reference in any such
covenant to any other provision herein or in any other document and such
omission to comply shall not constitute a Default or an Event of Default under
Section 6.01 hereof, but, except as specified above, the remainder of this
Indenture and such Notes shall be unaffected thereby. In addition, upon the
Company's exercise under Section 8.01 hereof of the option applicable to this
Section 8.03 hereof, subject to the satisfaction of the conditions set forth in
Section 8.04 hereof, Sections 6.01(d) through 6.01(f) hereof shall not
constitute Events of Default.
SECTION 8.04. CONDITIONS TO LEGAL OR COVENANT DEFEASANCE.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust, for
the benefit of the Holders, cash in United States dollars, British pounds,
Italian Lira or German marks, the ECU, the EURO, non-callable Government
Securities, or a combination thereof, in such amounts as will be sufficient, in
the opinion of a nationally recognized firm of independent public accountants,
to pay the principal of, premium and Liquidated Damages, if any, and interest on
the outstanding Notes on the stated date for payment thereof or on the
applicable redemption date, as the case may be;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that (A) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (B) since the date of this Indenture, there has been a change in the
applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Legal Defeasance and will be subject to 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;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for federal income tax
purposes as a result of such Covenant Defeasance and will be subject to federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such Covenant Defeasance had not occurred;
(d) no Default or Event of Default shall have occurred and be continuing
on the date of such deposit (other than a Default or Event of Default resulting
from the incurrence of Indebtedness all or a portion of the proceeds of which
will be used to defease the Notes pursuant to this Article 8 concurrently with
such incurrence) or insofar as Sections 6.01(h) or 6.01(i) hereof is concerned,
at any time in the period ending on the 91st day after the date of deposit;
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(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any material agreement or
instrument (other than this Indenture) to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Opinion of Counsel
(which may be subject to customary exceptions) to the effect that on the 91st
day following the deposit, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(h) the Company shall have delivered to the Trustee an Opinion of Counsel
to the effect that the resulting trust will not be an "investment company" (as
that term is defined in the Investment Company Act of 1940, as amended), unless
such trust is qualified under the Investment Company Act of 1940 or exempt from
regulation thereunder; and
(i) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for or relating to the Legal Defeasance or the Covenant
Defeasance have been complied with.
SECTION 8.05. DEPOSITED MONEY AND GOVERNMENT SECURITIES TO BE HELD IN TRUST;
OTHER MISCELLANEOUS PROVISIONS.
Subject to Section 8.06 hereof, all money and non-callable
Government Securities (including the proceeds thereof) deposited with the
Trustee (or other qualifying trustee, collectively for purposes of this Section
8.05, the "Trustee") pursuant to Section 8.04 hereof in respect of the
outstanding Notes shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
Paying Agent) as the Trustee may determine, to the Holders of such Notes of all
sums due and to become due thereon in respect of principal, premium, if any, and
interest, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the cash or non-callable
Government Securities deposited pursuant to Section 8.04 hereof 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 Article 8 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or non-callable Government Securities held by it as
provided in Section 8.04 hereof which, in the opinion of a nationally recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee (which may be the opinion delivered under
Section 8.04(a) hereof), are in excess of the amount thereof that would then be
required to be deposited to effect an equivalent Legal Defeasance or Covenant
Defeasance.
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SECTION 8.06. REPAYMENT TO COMPANY.
Any money deposited with the Trustee or any Paying Agent, or then
held by the Company, in trust for the payment of the principal of, premium, if
any, or interest on any Note and remaining unclaimed for two years after such
principal, and premium, if any, or interest has become due and payable shall be
paid to the Company on its request or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Note shall thereafter, as a
secured creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 8.07. REINSTATEMENT.
If the Trustee or Paying Agent is unable to apply any United States
dollars, British pounds, Italian lira or German marks, the ECU, the EURO or
non-callable Government Securities in accordance with Section 8.02 or 8.03
hereof, as the case may be, by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof, as the case may be; provided, however, that, if the Company makes any
payment of principal of, premium, if any, or interest on any Note following the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money held by the
Trustee or Paying Agent.
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
SECTION 9.01. WITHOUT CONSENT OF HOLDERS OF NOTES.
Notwithstanding Section 9.02 of this Indenture, the Company and the
Trustee may amend or supplement this Indenture or the Notes without the consent
of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency provided such
provisions shall not adversely affect the interests of the Holders;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes or to alter the provisions of Article 2 hereof (including the
related definitions) in a manner that does not materially adversely affect any
Holder;
(c) to provide for the assumption of the Company's obligations to the
Holders of the Notes by a successor to the Company pursuant to Article 5 hereof;
(d) to make any change that would provide any additional rights or
benefits to the Holders of the Notes or that does not adversely affect the legal
rights hereunder of any Holder of the Note; or
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(e) to comply with requirements of the SEC in order to effect or maintain
the qualification of this Indenture under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon receipt by the Trustee of the documents described in Section
7.02 hereof, the Trustee shall join with the Company in the execution of any
amended or supplemental Indenture authorized or permitted by the terms of this
Indenture and to make any further appropriate agreements and stipulations that
may be therein contained, but the Trustee shall not be obligated to enter into
such amended or supplemental Indenture that affects its own rights, duties or
immunities under this Indenture or otherwise.
SECTION 9.02. WITH CONSENT OF HOLDERS OF NOTES.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Indenture (including Section 3.09, 4.10 and
4.15 hereof) and the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the Notes then
outstanding voting as a single class (including consents obtained in connection
with a tender offer or exchange offer for, or purchase of, the Notes), and,
subject to Sections 6.04 and 6.07 hereof, any existing Default or Event of
Default (other than a Default or Event of Default in the payment of the
principal of, premium, if any, or interest on the Notes, except a payment
default resulting from an acceleration that has been rescinded) or compliance
with any provision of this Indenture or the Notes may be waived with the consent
of the Holders of a majority in principal amount of the then outstanding Notes
voting as a single class (including consents obtained in connection with a
tender offer or exchange offer for, or purchase of, the Notes). Section 2.08
hereof shall determine which Notes are considered to be "outstanding" for
purposes of this Section 9.02.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
Indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 7.02 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental Indenture
unless such amended or supplemental Indenture directly affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise, in which case
the Trustee may in its discretion, but shall not be obligated to, enter into
such amended or supplemental Indenture.
It shall not be necessary for the consent of the Holders of Notes
under this Section 9.02 to approve the particular form of any proposed amendment
or waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
Indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Holders of a
majority in aggregate principal amount of the Notes then outstanding voting as a
single class may waive compliance in a particular instance by the Company with
any provision of this Indenture or the Notes. However, without the consent of
each Holder
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affected, an amendment or waiver under this Section 9.02 may not (with respect
to any Notes held by a non-consenting Holder):
(a) reduce the principal amount of Notes whose Holders must consent to an
amendment, supplement or waiver;
(b) reduce the principal of or change the fixed maturity of any Note or
alter or waive any of the provisions with respect to the redemption of the Notes
except as provided above with respect to Sections 3.09, 4.10 and 4.15 hereof;
(c) reduce the rate of accretion or change the time for payment of
interest, including default interest, on any Note;
(d) waive a Default or Event of Default in the payment of principal of or
premium, if any, or interest on the Notes (except a rescission of acceleration
of the Notes by the Holders of at least a majority in aggregate principal amount
of the then outstanding Notes and a waiver of the payment default that resulted
from such acceleration);
(e) make any Note payable in money other than that stated in the Notes;
(f) make any change in the provisions of this Indenture relating to
waivers of past Defaults or the rights of Holders of Notes to receive payments
of principal of, or premium or interest, on the Notes; or
(g) make any change in Section 6.04 or 6.07 hereof or in the foregoing
amendment and waiver provisions.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT.
Every amendment or supplement to this Indenture or the Notes shall
be set forth in a amended or supplemental Indenture that complies with the TIA
as then in effect.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS.
Until an amendment, supplement or waiver becomes effective, a
consent to it by a Holder of a Note is a continuing consent by the Holder of a
Note and every subsequent Holder of a Note or portion of a Note that evidences
the same debt as the consenting Holder's Note, even if notation of the consent
is not made on any Note. However, any such Holder of a Note or subsequent Holder
of a Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF NOTES.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company in
exchange for all Notes may issue and the Trustee shall, upon receipt of an
Authentication Order, authenticate new Notes that reflect the amendment,
supplement or waiver.
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Failure to make the appropriate notation or issue a new Note shall
not affect the validity and effect of such amendment, supplement or waiver.
SECTION 9.06. TRUSTEE TO SIGN AMENDMENTS, ETC.
The Trustee shall sign any amended or supplemental Indenture
authorized pursuant to this Article Nine if the amendment or supplement does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
The Company may not sign an amendment or supplemental Indenture until the Board
of Directors approves it. In executing any amended or supplemental Indenture,
the Trustee shall be entitled to receive and (subject to Section 7.01 hereof)
shall be fully protected in relying upon, in addition to the documents required
by Sections 10.04 and 10.05 hereof, an Officers' Certificate and an Opinion of
Counsel stating that (i) the execution of such amended or supplemental Indenture
is authorized or permitted by this Indenture, (ii) such amended or supplemental
Indenture complies with this Indenture and (iii) in the event such amended or
supplemental Indenture is being executed pursuant to Section 5.01 hereof, the
surviving Person assumes the obligations under this Indenture and the Notes.
ARTICLE 10.
MISCELLANEOUS
SECTION 10.01. TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or conflicts
with the duties imposed by a provision of the TIA, the imposed duties shall
control.
SECTION 10.02. NOTICES.
Any notice or communication by the Company or the Trustee to the
others is duly given if in writing and delivered in Person or mailed by first
class mail (registered or certified, return receipt requested), telex,
telecopier or overnight air courier guaranteeing next day delivery, to the
others' address
If to the Company:
Cellular Communications International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
If to the Trustee:
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The Chase Manhattan
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee, by notice to the others may designate
additional or different addresses for subsequent notices or communications.
All notices and communications (other than those sent to Holders)
shall be deemed to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first
class mail, certified or registered, return receipt requested, or by overnight
air courier guaranteeing next day delivery to its address shown on the register
kept by the Registrar. Any notice or communication shall also be so mailed to
any Person described in TIA ss. 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
SECTION 10.03. COMMUNICATION BY HOLDERS OF NOTES WITH OTHER HOLDERS OF NOTES.
Holders may communicate pursuant to TIA ss. 312(b) with other
Holders with respect to their rights under this Indenture or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA ss. 312(c).
SECTION 10.04. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT.
Upon any request or application by the Company to the Trustee to
take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of the signers, all
conditions precedent and covenants, if any, provided for in this Indenture
relating to the proposed action have been satisfied; and
(b) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 10.05 hereof) stating that, in the opinion of such counsel, all such
conditions precedent and covenants have been satisfied.
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SECTION 10.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA ss. 314(a)(4)) shall comply with the provisions of TIA
ss. 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
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 or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she 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
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
SECTION 10.06. RULES BY TRUSTEE AND AGENTS.
The Trustee may make reasonable rules for action by or at a meeting
of Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
SECTION 10.07. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND
STOCKHOLDERS.
No past, present or future director, officer, employee, incorporator
or stockholder of the Company shall have any liability for any obligations of
the Company under the Notes, this Indenture or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each Holder by
accepting a Note waives and releases all such liability. The waiver and release
are part of the consideration for issuance of the Notes.
SECTION 10.08. GOVERNING LAW.
THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED
TO CONSTRUE THIS INDENTURE AND THE NOTES 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.
SECTION 10.09. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS.
This Indenture may not be used to interpret any other indenture,
loan or debt agreement of the Company or its Subsidiaries or of any other
Person. Any such indenture, loan or debt agreement may not be used to interpret
this Indenture.
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SECTION 10.10. SUCCESSORS.
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee in this Indenture shall bind
its successors.
SECTION 10.11. SEVERABILITY.
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 10.12. COUNTERPART 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 10.13. TABLE OF CONTENTS, HEADINGS, ETC.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part of this Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.
[Signatures on following page]
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SIGNATURES
Dated as of March 18, 1998
CELLULAR COMMUNICATIONS
INTERNATIONAL, INC.
BY:
-----------------------
Name:
Title:
THE CHASE MANHATTAN BANK
BY:
-----------------------
Name:
Title:
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SIGNATURES
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SENIOR VICE PRESIDENT
THE CHASE MANHATTAN BANK
BY: /s/ ▇▇▇▇▇▇ ▇. Deck
-----------------------
▇▇▇▇▇▇ ▇. DECK
VICE PRESIDENT
83
EXHIBIT A
(Face of Note)
================================================================================
FOR THE PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL
ISSUE DISCOUNT; FOR EACH EURO 1,000 PRINCIPAL AMOUNT OF THIS SECURITY, THE
ISSUE PRICE IS EURO 624.55, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS EURO
375.45, THE ISSUE DATE IS MARCH 18, 1998 AND THE YIELD TO MATURITY IS
9 1/2% PER ANNUM.
(a) CUSIP/CINS/ISIN
9-1/2% [Series A] [Series B] Senior Discount Notes due 2005
No._____ EURO______
CELLULAR COMMUNICATIONS INTERNATIONAL, INC.
promises to pay to____________________________________________
or registered assigns,
the principal sum of_________________________________________
EURO on April 1, 2005
Interest Payment Dates: April 1 and October 1
Record Dates: March 15 and September 15
DATED: ______, 1998
CELLULAR COMMUNICATIONS INTERNATIONAL,
INC.
BY:
------------------------
Name:
Title:
This is one of the Global
Notes referred to in the
within-mentioned Indenture:
THE CHASE MANHATTAN BANK
as Trustee
By:
----------------------
A-1
84
================================================================================
(Back of Note)
9-1/2% [Series A] [Series B] Senior Discount Notes due 2005
[Insert the Global Note Legend, if applicable pursuant to the
provisions of the Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the
provisions of the Indenture]
Capitalized terms used herein shall have the meanings assigned to
them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Cellular Communications International, Inc., a Delaware
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 9-1/2% per annum and shall pay the Liquidated Damages payable
pursuant to Section 5 of the Registration Rights Agreement referred to below.
Interest will not accrue prior to April 1, 2003. Thereafter, the Company will
pay interest and Liquidated Damages semi-annually on April 1 and October 1 (each
an "Interest Payment Date"), commencing on October 1, 2003, or if any such day
is not a Business Day, on the next succeeding Business Day . Interest on the
Notes will accrue from the most recent date to which interest has been paid or,
if no interest has been paid, from the date of issuance; provided that if there
is no existing Default in the payment of interest, and if this Note is
authenticated between a record date referred to on the face hereof and the next
succeeding Interest Payment Date, interest shall accrue from such next
succeeding Interest Payment Date; provided, further, that the first Interest
Payment Date shall be October 1, 2003. The Company shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
principal and premium, if any, from time to time on demand at a rate that is 1%
per annum in excess of the rate then in effect; it shall pay interest (including
post-petition interest in any proceeding under any Bankruptcy Law) on overdue
installments of interest and Liquidated Damages (without regard to any
applicable grace periods) from time to time on demand at the same rate to the
extent lawful. Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
2. METHOD OF PAYMENT. The Company will pay interest on the Notes
(except defaulted interest) and Liquidated Damages to the Persons who are
registered Holders of Notes at the close of business on the March 15 or
September 15 next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium and Liquidated
Damages, if any, and interest in EUROs only by credit or transfer to a EURO
account (or, prior to the introduction of the EURO at the third stage of
European economic and monetary union, will be payable in ECU only by credit or
transfer to an ECU account at the rate of one ECU for one EURO) located in the
place of payment (outside the United States) specified by the relevant Holder.
Payments in a component currency of the EURO or ECU (if so determined as
provided below) will be made in the chosen currency (as defined below) either by
check drawn on, or by transfer to an account specified by the payee with, a bank
in the principal financial center of the country of the chosen currency. The
Notes will be issued in denominations of EURO 1,000 principal amount at maturity
and integral multiples thereof.
References herein and in the Indenture to any business day, day-count
fraction or other convention (whether for the calculation of interest,
determination of payment dates or otherwise) will, if different, with effect
A-2
85
from the introduction of the EURO at the start of the third stage of European
economic and monetary union, be deemed to be amended to comply with any
conventions applicable to EURO-denominated obligations pursuant to applicable
requirements of relevant monetary, stock exchange or other authorities,
applicable EC and national laws and regulations and such market practices
consistent therewith as the Company, in its discretion, will determine to be
applicable for such EURO-denominated obligations held in international clearing
systems and the terms and conditions of the Notes and the Indenture will be
amended accordingly. Notice of any such amendments will be notified to the
Holders.
The Notes will be payable both as to principal and interest (on
presentation of such Notes if in certificated form) at the offices or agencies
of the Company maintained for such purpose within the City and State of New York
and London, England and, so long as the Notes are listed on the Luxembourg Stock
Exchange, at the office of the paying agent maintained in Luxembourg or, at the
option of the Company, payment of interest may be made by check mailed to the
holders of the Notes at their respective addresses set forth in the register of
holders of Notes or, if a holder so requests, by wire transfer of immediately
available funds to an account previously specified in writing by such holder to
the Company and the Trustee. Holders who receive payment in any currency other
than the EURO must make arrangements at their own expense.
With respect to each due date for the payment of interest, premium, if
any, or Liquidated Damages, if any, or the repayment of principal on which the
ECU is neither used as the unit of account of the European Community nor used as
the currency of the European Union (and is not at such time replaced by the
EURO), the Company will, without liability on its part and without having regard
to the interests of individual Holders (i) choose the Chosen Currency of the ECU
or (ii) U.S. dollars in which all payments due on that date with respect to
Notes will be made. The amount of each payment in the Chosen Currency will be
computed on the basis of the equivalent of the ECU in that currency, determined
as set forth herein, as of the fourth business day in Luxembourg prior to the
date on which such payment is due. Notice of the Chosen Currency selected by the
Company will, where practicable, be given to Holders of Notes.
On the first business day in Luxembourg on which the ECU is neither used
as the unit of account of the EC nor used as the currency of the European Union
(and is not at such time replaced by the EURO), the Company will, without
liability on its part and without having regard to the interests of individual
Holders of Notes, choose the Chosen Currency in which all payments with respect
to Notes having a due date prior thereto but not yet presented for payment are
to be made. The amount of each payment in the Chosen Currency will be computed
on the basis of the equivalent of the ECU in that currency, determined as set
out in this paragraph, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as of the Day of
Valuation will be determined on the following basis by the Luxembourg Exchange.
The Components will be the currency amounts which were components of the ECU
when the ECU was most recently used as the unit of account of the EC. The
equivalent of the ECU in the Chosen Currency will be calculated by, first,
aggregating the U.S. dollar equivalents of the Components, and then, using the
rate used for determining the U.S. dollar equivalent of the Component in the
Chosen Currency as set out below, calculating the equivalent in the Chosen
Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components will be determined by
the Luxembourg Exchange on the basis of the middle spot delivery quotations
prevailing at 2:30 p.m. Luxembourg time on the Day of Valuation, as obtained by
the Company and notified by it to the Luxembourg Exchange from one or more
leading banks selected by the Company, in the country of issue of the Component
Currency in question.
If no direct quotations are available for a component currency as of a Day
of Valuation from any of the banks selected by the Company for this purpose
because foreign exchange markets are closed in the country of issue of that
currency or for any other reason, the most recent direct quotations for that
currency obtained by the Company and notified by it to the Luxembourg Exchange
will be used in computing the equivalents of the ECU on such Day of Valuation,
provided, however, that such most recent quotations may be used only if they
were prevailing in the country of issue not more than two business days before
such Day of Valuation. Beyond such
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period of two business days, the Luxembourg Exchange will determine the U.S.
dollar equivalent of such Component on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 p.m. Luxembourg time on such Day of Valuation, as
obtained by the Company from one or more leading banks, as selected by the
Company (following consultation, if practicable, with the Company) and notified
to the Luxembourg Exchange, in a country other than the country of issue of such
component currency. Within such period of two business days, the Luxembourg
Exchange will determine the U.S. dollar equivalent of such Component on the
basis of such cross rates if the Company judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent calculated on
the basis of such most recent direct quotations. Unless otherwise specified by
the Company, if there is more than one market for dealing in any component
currency by reason of foreign exchange regulations or for any other reason, the
market to be referred to in respect of such currency will be that upon which a
non-resident issuer of securities denominated in such currency would purchase
such currency in order to make payments in respect of such securities.
All determinations made by the Company or the Exchange will be
at its sole discretion and will, in the absence of manifest error, be conclusive
for all purposes and binding on the Company and all Holders.
3. PAYING AGENT AND REGISTRAR. Initially, The Chase Manhattan Bank,
the Trustee under the Indenture, will act as Paying Agent and Registrar at its
offices in the City and State of New York and, so long as the Notes are listed
on the Luxembourg Stock Exchange, the Company initially appoints Banque
Internationale a Luxembourg to act as paying agent in Luxembourg. The Company
may change any Paying Agent or Registrar without notice to any Holder. The
Company or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Company issued the Notes under an Indenture dated
as of March 18, 1998 ("Indenture") between the Company and the Trustee. The
terms of the Notes include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as amended (15
U.S. Code ▇▇.▇▇. 77aaa-77bbbb). The Notes are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of such
terms. To the extent any provision of this Note conflicts with the express
provisions of the Indenture, the provisions of the indenture shall govern and be
controlling. The Notes are unsecured obligations of the Company limited to EURO
235 million in aggregate principal amount at maturity.
5. OPTIONAL REDEMPTION.
(a) The Company shall not have the option to redeem the Notes prior
to April 1, 2002. Thereafter, the Company shall have the option to redeem the
Notes, in whole or in part, upon not less than 30 nor more than 60 days' notice,
at the redemption prices (expressed as percentages of Accreted Value) set forth
below plus, in the case of any redemption subsequent to Full Accretion Date,
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
applicable redemption date, if redeemed during the twelve-month period beginning
on April 1 of the years indicated below:
Year Percentage
---- ----------
2002..................................... 104.750%
2003..................................... 103.167%
2004..................................... 101.583%
2005..................................... 100.000%
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(b) The Company will have the right to purchase Notes in the open
market or otherwise. Any Notes so purchased may be resold at the Company's
discretion if not surrendered for cancellation pursuant to the Indenture.
6. MANDATORY REDEMPTION.
Except as set forth in paragraph 7 below, the Company shall not be
required to make mandatory redemption payments with respect to the Notes.
7. REPURCHASE AT OPTION OF HOLDER.
(a) If there is a Change of Control, the Company shall be required
to make an offer (a "Change of Control Offer") to repurchase all or any part
(equal to EURO 1,000 in principal amount at maturity or an integral multiple
thereof) of each Holder's Notes at an offer price equal to 101% of the Accreted
Value thereof on the date of purchase (if prior to April 1, 2003) or 101% of the
aggregate principal amount thereof plus accrued and unpaid interest and
Liquidated Damages thereon, if any, to the date of purchase (if on or after
April 1, 2003) (in either case, the "Change of Control Payment"). Within 10 days
following any Change of Control, the Company shall mail a notice to each Holder
setting forth the procedures governing the Change of Control Offer as required
by the Indenture.
(b) If the Company or a Subsidiary consummates any Asset Sales,
within five days of each date on which the aggregate amount of Excess Proceeds
exceeds $5 million, the Company shall commence an offer to all Holders of Notes
(as "Asset Sale Offer") pursuant to Section 3.09 of the Indenture to purchase
the maximum principal amount of Notes that may be purchased out of the Excess
Proceeds at an offer price in cash in an amount equal to 100% of the Accreted
Value thereof on the date fixed for the closing of such offer (if prior to April
1, 2003) or 100% of the principal amount thereof plus accrued and unpaid
interest and Liquidated Damages thereon, if any, to the date fixed for the
closing of such offer (if on or after April 1, 2003), in accordance with the
procedures set forth in the Indenture. To the extent that the aggregate amount
of Notes tendered pursuant to an Asset Sale Offer is less than the Excess
Proceeds, the Company (or such Subsidiary) may use such deficiency for general
corporate purposes. If the aggregate principal amount of Notes surrendered by
Holders thereof exceeds the amount of Excess Proceeds, the Trustee shall select
the Notes to be purchased on a pro rata basis. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
8. 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 whose Notes are to be redeemed at its registered address. Notes in
denominations larger than EURO 1,000 may be redeemed in part but only in whole
multiples of EURO 1,000, unless all of the Notes held by a Holder are to be
redeemed. On and after the redemption date interest ceases to accrue on Notes or
portions thereof called for redemption.
9. DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered
form without coupons in denominations of EURO 1,000 and integral multiples of
EURO 1,000. The transfer of Notes may be registered and Notes may be exchanged
as provided in the Indenture. The Registrar and the
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Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the corresponding Interest
Payment Date.
10. PERSONS DEEMED OWNERS. The registered Holder of a Note may be
treated as its owner for all purposes.
11. AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions,
the Indenture or the Notes may be amended or supplemented with the consent of
the Holders of at least a majority in principal amount of the then outstanding
Notes voting as a single class, and any existing default or compliance with any
provision of the Indenture or the Notes may be waived with the consent of the
Holders of a majority in principal amount of the then outstanding Notes voting
as a single class. Without the consent of any Holder of a Note, the Indenture or
the Notes may be amended or supplemented to cure any ambiguity, defect or
inconsistency, to provide for uncertificated Notes in addition to or in place of
certificated Notes, to provide for the assumption of the Company's obligations
to Holders of the Notes in case of a merger, consolidation or sale of all or
substantially all of the Company's assets, to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under the Indenture of any such Holder or to
comply with the requirements of the Commission in order to effect or maintain
the qualification of the Indenture under the Trust Indenture Act.
12. DEFAULTS AND REMEDIES. Events of Default include: (i) failure to
pay for 30 days in the payment when due of interest or Liquidated Damages on the
Notes when the same becomes due and payable and the default continues for a
period of 30 days; (ii) default in payment when due of principal, Accreted Value
or Liquidated Damages, if any, of the Notes at maturity, upon acceleration,
repurchase or otherwise, (iii) failure by the Company or any Restricted
Subsidiary of the Company, Restricted Affiliate or Restricted Subsidiary of a
Restricted Affiliate to comply for 30 days after notice with any of its
obligations under any of the provisions of Section 4.07, 4.09, 4.10 or 4.15 of
the Indenture; (iv) failure by the Company or any Restricted Subsidiary of the
Company, Restricted Affiliate or Restricted Subsidiary of a Restricted Affiliate
for 60 days after notice to the Company by the Trustee or the Holders of at
least 25% in principal amount of the Notes then outstanding voting as a single
class to comply with certain other agreements in the Indenture or the Notes; (v)
default under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any Indebtedness for money
borrowed by the Company or any Restricted Subsidiary of the Company, Restricted
Affiliate or Restricted Subsidiary of a Restricted Affiliate or Omnitel or OPI
whether such Indebtedness or Guarantee now exists or is created after the date
of the Indenture, which default (a) is Payment Default or (b) results in the
acceleration of such Indebtedness prior to its express maturity and, in each
case, the principal amount of any such Indebtedness, together with the principal
amount of any other such Indebtedness under which there has been a Payment
Default or the maturity of which has been so accelerated, aggregates $5 million
or more (or, in the case of Omnitel or OPI, $25 million or more); (vi) failure
by the Company or any Restricted Subsidiary of the Company, Restricted Affiliate
or Restricted Subsidiary of a Restricted Affiliate or Omnitel or OPI to pay
final judgments of a court of competent jurisdiction aggregating in excess of $5
million (or, in the case of Omnitel or OPI, $25 million), which judgments are
not paid, discharged or stayed for a period of 60 days;
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and (vii) certain events of bankruptcy or insolvency with respect to the Company
or any of its Significant Subsidiaries or Omnitel or OPI; (viii) revocation of
the License or a governmental action that has the effect of preventing OPI from
conducting material operations for a period in excess of 180 continuous days. If
any Event of Default occurs and is continuing, the Trustee or the Holders of at
least 25% in principal amount of the then outstanding Notes may declare all the
Notes to be due and payable immediately. Notwithstanding the foregoing, in the
case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default or Event of Default (except a Default or
Event of Default relating to the payment of principal or interest) if it
determines that withholding notice is in their interest. The Holders of a
majority in aggregate principal amount of the Notes then outstanding by notice
to the Trustee may on behalf of the Holders of all of the Notes waive any
existing Default or Event of Default and its consequences under the Indenture
except a continuing Default or Event of Default in the payment of the principal
of the Notes (which would be required to be unanimous). The Company is required
to deliver to the Trustee annually a statement regarding compliance with the
Indenture, and the Company is required upon becoming aware of any Default or
Event of Default, to deliver to the Trustee a statement specifying such Default
or Event of Default.
13. TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates, and may otherwise deal with the
Company or its Affiliates, as if it were not the Trustee.
14. NO RECOURSE AGAINST OTHERS. A director, officer, employee,
incorporator or stockholder, of the Company, as such, shall not have any
liability for any obligations of the Company under the Notes or the Indenture or
for any claim based on, in respect of, or by reason of, such obligations or
their creation. Each Holder by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Notes.
15. AUTHENTICATION. This Note shall not be valid until authenticated
by the manual signature of the Trustee or an authenticating agent.
16. ABBREVIATIONS. Customary abbreviations may be used in the name
of a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
17. ADDITIONAL RIGHTS OF HOLDERS OF RESTRICTED GLOBAL NOTES AND
RESTRICTED DEFINITIVE NOTES. In addition to the rights provided to Holders of
Notes under the Indenture, Holders of Restricted Global Notes and Restricted
Definitive Notes shall have all the rights set forth in the A/B Exchange
Registration Rights Agreement dated as of March 18, 1998, between the Company
and the parties named on the signature pages thereof (the "Registration Rights
Agreement").
18. CUSIP AND ISIN NUMBERS. The Company has caused CUSIP or ISIP, as
applicable, numbers to be printed on the Notes and the Trustee may use CUSIP or
ISIP, as applicable, numbers in notices of redemption as a convenience to
Holders. No representation is made as to the
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accuracy of such numbers either as printed on the Notes or as contained in any
notice of redemption and reliance may be placed only on the other identification
numbers placed thereon.
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The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Cellular Communications International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
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ASSIGNMENT FORM
To assign this Note, fill in the form below: (I) or (we) assign and transfer
this Note to
------------------------------------------------------------------------------
(Insert assignee's soc. sec. or tax I.D. no.)
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint_______________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
------------------------------------------------------------------------------
Date:
Your Signature:
--------------------
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee.
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company
pursuant to Section 4.10 or 4.15 of the Indenture, check the box below:
|_| Section 4.10 |_| Section 4.15
If you want to elect to have only part of the Note purchased by the
Company pursuant to Section 4.10 or Section 4.15 of the Indenture, state the
amount you elect to have purchased: EURO ________
Date: Your Signature:
------- -------------------------
(Sign exactly as your name appears
on the Note)
Tax Identification No:
------------------
Signature Guarantee.
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
Principal Amount
Amount of decrease at maturity of
in Amount of increase this Global Note Signature of
Principal Amount in Principal Amount following such authorized officer
at maturity of at maturity of decrease of Trustee or
Date of Exchange this Global Note this Global Note (or increase) Note Custodian
---------------- ---------------- ---------------- ------------- --------------
▇-▇▇
▇▇
▇▇▇▇▇▇▇ ▇
FORM OF CERTIFICATE OF TRANSFER
Cellular Communications International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 9-1/2% Senior Discount Notes due 2005
Reference is hereby made to the Indenture, dated as of March 18,
1998 (the "Indenture"), between Cellular Communications International, Inc., as
issuer (the "Company"), and The Chase Manhattan Bank, 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 ___________ in such Note[s] or interests (the
"Transfer"), to __________ (the "Transferee"), as further specified in Annex A
hereto. In connection with the Transfer, the Transferor hereby certifies that:
[CHECK ALL THAT APPLY]
1. |_| Check if Transferee will take delivery of a beneficial interest in the
144A/Regulation S Global Note or a Definitive Note Pursuant to Rule 144A. The
Transfer is being effected pursuant to and in accordance with Rule 144A under
the United States Securities Act of 1933, as amended (the "Securities Act"),
and, accordingly, the Transferor hereby further certifies that the beneficial
interest or Definitive Note is being transferred to a Person that the Transferor
reasonably believed and believes is purchasing the beneficial interest or
Definitive 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 any applicable blue sky securities laws of any state of the
United States. Upon consummation of the proposed Transfer in accordance with the
terms of the Indenture, the transferred beneficial interest or Definitive Note
will be subject to the restrictions on transfer enumerated in the Private
Placement Legend printed on the 144A/Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
2. |_| Check if Transferee will take delivery of a beneficial interest in the
144A/Regulation S Global Note or a Definitive Note pursuant to Regulation S. The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and, accordingly, the Transferor hereby further
certifies that (i) the Transfer 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
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96
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
the facilities of a designated offshore securities market and neither such
Transferor nor any Person acting on its behalf knows that the transaction was
prearranged with a buyer in the United States, (ii) no directed selling efforts
have been made in contravention of the requirements of Rule 903(b) or Rule
904(b) 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. Upon consummation of the proposed transfer in accordance with
the terms of the Indenture, the transferred beneficial interest or Definitive
Note will be subject to the restrictions on Transfer enumerated in the Private
Placement Legend printed on the 144A/Regulation S Global Note and/or the
Definitive Note and in the Indenture and the Securities Act.
3. |_| Check and complete if Transferee will take delivery of a beneficial
interest in the 144A/Regulation S Global Note or a Definitive Note pursuant to
any provision of the Securities Act other than Rule 144A or Regulation S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) |_| such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) |_| such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) |_| such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act.
4. |_| Check if Transferee will take delivery of a beneficial interest in an
Unrestricted Global Note or of an Unrestricted Definitive Note.
(a) |_| Check if Transfer is pursuant to Rule 144. (i) The Transfer
is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) |_| Check if Transfer is Pursuant to Regulation S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the
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97
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(c) |_| Check if Transfer is Pursuant to Other Exemption. (i) The
Transfer is being effected pursuant to and in compliance with an exemption from
the registration requirements of the Securities Act other than Rule 144, Rule
903 or Rule 904 and in compliance with the transfer restrictions contained in
the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
---------------------------
[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 beneficial interest in the 144A/Regulation S Global Note
(CUSIP/ISIN _______ ), or
(b) |_| a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) |_| a beneficial interest in the:
(i) |_| 144A/Regulation S Global Note (CUSIP/ISIN _____ ), or
(ii) |_| Unrestricted Global Note (CUSIP/ISIN _____ ); or
(b) |_| a Restricted Definitive Note; or
(c) |_| an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
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99
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Cellular Communications International, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: 9-1/2% Senior Discount Notes due 2005
(CUSIP/ISIN______________)
Reference is hereby made to the Indenture, dated as of March 18,
1998 (the "Indenture"), between Cellular Communications International, Inc., as
issuer (the "Company"), and The Chase Manhattan Bank, as trustee. Capitalized
terms used but not defined herein shall have the meanings given to them in the
Indenture.
____________, (the "Owner") owns and proposes to exchange the
Note[s] or interest in such Note[s] specified herein, in the principal amount of
EURO ____________ in such Note[s] or interests (the "Exchange"). In connection
with the Exchange, the Owner hereby certifies that:
1. Exchange of Restricted Definitive Notes or Beneficial Interests
in a Restricted Global Note for Unrestricted Definitive Notes or Beneficial
Interests in an Unrestricted Global Note
(a) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to beneficial interest in an Unrestricted Global Note. In
connection with the Exchange of the Owner's beneficial interest in a Restricted
Global Note for a beneficial interest in an Unrestricted Global Note in an equal
principal amount, the Owner hereby certifies (i) the beneficial interest is
being acquired for the Owner's own account without transfer, (ii) such Exchange
has been effected in compliance with the transfer restrictions applicable to the
Global Notes and pursuant to and in accordance with the United States Securities
Act of 1933, as amended (the "Securities Act"), (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
beneficial interest in an Unrestricted Global Note is being acquired in
compliance with any applicable blue sky securities laws of any state of the
United States.
(b) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to Unrestricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive Note
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the
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Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in an Unrestricted Global Note. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in an
Unrestricted Global Note, the Owner hereby certifies (i) the beneficial interest
is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance with
the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act and (iv) the beneficial interest is being
acquired in compliance with any applicable blue sky securities laws of any state
of the United States.
(d) |_| Check if Exchange is from Restricted Definitive Note to
Unrestricted Definitive Note. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner hereby
certifies (i) the Unrestricted Definitive Note is being acquired for the Owner's
own account without transfer, (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to Restricted Definitive Notes and
pursuant to and in accordance with the Securities Act, (iii) the restrictions on
transfer contained in the Indenture and the Private Placement Legend are not
required in order to maintain compliance with the Securities Act and (iv) the
Unrestricted Definitive Note is being acquired in compliance with any applicable
blue sky securities laws of any state of the United States.
2. Exchange of Restricted Definitive Notes or Beneficial Interests
in Restricted Global Notes for Restricted Definitive Notes or Beneficial
Interests in Restricted Global Notes
(a) |_| Check if Exchange is from beneficial interest in a
Restricted Global Note to Restricted Definitive Note. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated in
the Private Placement Legend printed on the Restricted Definitive Note and in
the Indenture and the Securities Act.
(b) |_| Check if Exchange is from Restricted Definitive Note to
beneficial interest in a Restricted Global Note. In connection with the Exchange
of the Owner's Restricted Definitive Note for a beneficial interest in the
144A/Regulation S Global Note with an equal principal amount, the Owner hereby
certifies (i) the beneficial interest is being acquired for the Owner's own
account without transfer and (ii) such Exchange has been effected in compliance
with the transfer restrictions applicable to the Restricted Global Notes and
pursuant to and in accordance with the Securities Act, and in compliance with
any applicable blue sky securities laws of any state of the United States. Upon
consummation of the proposed Exchange in accordance with the terms of the
Indenture, the beneficial interest issued will be
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subject to the restrictions on transfer enumerated in the Private Placement
Legend printed on the relevant Restricted Global Note and in the Indenture and
the Securities Act.
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This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
-----------------------------------
[Insert Name of Owner]
By:
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Name:
Title:
Dated:
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