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COMPLETEL EUROPE N.V.,
as Issuer
COMPLETEL ECC B.V.,
as Guarantor
and
U.S. BANK TRUST NATIONAL ASSOCIATION,
as Trustee
--------------------------------
Indenture
Dated as of February 16, 1999
--------------------------------
$147,500,000
14% Senior Discount Notes due 2009
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CROSS-REFERENCE TABLE
TIA Sections Indenture Sections
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Section 3.10(a)(1) 7.10
(a)(2) 7.10
(b) 7.03; 7.08
Section 3.11 7.03
Section 3.13(a) 7.06
(c) 7.05, 7.06; 10.02
Section 3.14(a) 4.17; 10.02
(a)(4) 4.16; 10.02
(c)(1) 10.03
(c)(2) 10.03
(e) 10.04
Section 3.15(a) 7.02
(b) 7.02; 7.05; 10.02
(c) 7.02
(d) 7.02
Section 3.16(a) 6.05; 6.06
(a)(1)(A) 6.05
(a)(1)(B) 6.04
(b) 6.07
Section 3.17(a)(1) 6.08
(a)(2) 6.09
Section 3.18(a) 10.01
(c) 10.01
Note: The Cross-Reference Table shall not for any purpose be deemed to be a
part of this Indenture.
TABLE OF CONTENTS
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ARTICLE ONE DEFINITIONS AND INCORPORATION BY REFERENCE.......................................................2
SECTION 1.01. Definitions...............................................................2
SECTION 1.02. Incorporation by Reference of Trust Indenture Act........................32
SECTION 1.03. Rules of Construction....................................................32
ARTICLE TWO THE NOTES.......................................................................................33
SECTION 2.01. Form and Dating..........................................................33
SECTION 2.02. Restrictive Legends......................................................35
SECTION 2.03. Execution, Authentication and Denominations..............................37
SECTION 2.04. Registrar and Paying Agent...............................................38
SECTION 2.05. Paying Agent to Hold Money in Trust......................................39
SECTION 2.06. Transfer and Exchange....................................................40
SECTION 2.07. Book-Entry Provisions for Global Notes...................................41
SECTION 2.08. Registration of Transfers and exchanges..................................42
SECTION 2.09. Replacement Notes........................................................47
SECTION 2.10. Outstanding Notes........................................................47
SECTION 2.11. Temporary Notes..........................................................48
SECTION 2.12. Cancellation.............................................................49
SECTION 2.13. CUSIP Numbers............................................................49
SECTION 2.14. Defaulted Interest.......................................................49
ARTICLE THREE REDEMPTION....................................................................................50
SECTION 3.01. Right of Redemption......................................................50
SECTION 3.02. Notices to Trustee.......................................................51
SECTION 3.03. Selection of Notes to Be Redeemed........................................51
SECTION 3.04. Notice of Redemption.....................................................52
SECTION 3.05. Effect of Notice of Redemption...........................................53
SECTION 3.06. Deposit of Redemption Price..............................................53
SECTION 3.07. Payment of Notes Called for Redemption...................................53
SECTION 3.08. Notes Redeemed in Part...................................................54
ARTICLE FOUR COVENANTS......................................................................................54
SECTION 4.01. Payment of Notes.........................................................54
SECTION 4.02. Maintenance of Office or Agency..........................................54
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SECTION 4.03. Limitation on Indebtedness...............................................55
SECTION 4.04. Limitation on Restricted Payments........................................57
SECTION 4.05. Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries....................................61
SECTION 4.06. Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries..............................................62
SECTION 4.07. Limitation on Issuances of Guaranties and Incurrence of
Certain Indebtedness by Restricted Subsidiaries......................62
SECTION 4.08. Limitation on Transactions with Shareholders and Affiliates..............63
SECTION 4.09. Limitation on Liens Securing Certain Indebtedness........................64
SECTION 4.10. Limitation on Asset Sales................................................65
SECTION 4.11. Limitation on Status as Investment Company...............................66
SECTION 4.12. Repurchase of Notes upon a Change of Control.............................66
SECTION 4.13. Existence................................................................66
SECTION 4.14. Payment of Taxes and Other Claims........................................67
SECTION 4.15. Maintenance of Properties and Insurance..................................67
SECTION 4.16. Notice of Defaults.......................................................68
SECTION 4.17. Compliance Certificates..................................................68
SECTION 4.18. Commission Reports and Reports to Holders................................69
SECTION 4.19. Waiver of Stay, Extension or Usury Laws..................................69
SECTION 4.20. Calculation of Original Issue Discount...................................70
SECTION 4.21. Payment of Additional Amounts............................................70
SECTION 4.22. Escrow Account; Mandatory Redemption.....................................72
ARTICLE FIVE SUCCESSOR CORPORATION..........................................................................74
SECTION 5.01. When Company May Merge, Etc..............................................74
SECTION 5.02. Successor Substituted....................................................76
ARTICLE SIX DEFAULT AND REMEDIES............................................................................76
SECTION 6.01. Events of Default........................................................76
SECTION 6.02. Acceleration.............................................................79
SECTION 6.03. Other Remedies...........................................................79
SECTION 6.04. Waiver of Past Defaults..................................................80
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SECTION 6.05. Control by Majority......................................................80
SECTION 6.06. Limitation on Suits......................................................80
SECTION 6.07. Rights of Holders to Receive Payment.....................................81
SECTION 6.08. Collection Suit by Trustee...............................................81
SECTION 6.09. Trustee May File Proofs of Claim.........................................82
SECTION 6.10. Priorities...............................................................82
SECTION 6.11. Undertaking for Costs....................................................83
SECTION 6.12. Restoration of Rights and Remedies.......................................83
SECTION 6.13. Rights and Remedies Cumulative...........................................83
SECTION 6.14. Delay or Omission Not Waiver.............................................84
ARTICLE SEVEN TRUSTEE.......................................................................................84
SECTION 7.01. General..................................................................84
SECTION 7.02. Certain Rights of Trustee................................................84
SECTION 7.03. Individual Rights of Trustee.............................................86
SECTION 7.04. Trustee's Disclaimer.....................................................86
SECTION 7.05. Notice of Default........................................................86
SECTION 7.06. Reports by Trustee to Holders............................................86
SECTION 7.07. Compensation and Indemnity...............................................87
SECTION 7.08. Replacement of Trustee...................................................87
SECTION 7.09. Successor Trustee by Merger, Etc.........................................89
SECTION 7.10. Eligibility..............................................................89
SECTION 7.11. Money Held in Trust......................................................89
SECTION 7.12. Withholding Taxes........................................................89
ARTICLE EIGHT DISCHARGE OF INDENTURE........................................................................90
SECTION 8.01. Termination of Company's Obligations.....................................90
SECTION 8.02. Defeasance and Discharge of Indenture....................................91
SECTION 8.03. Defeasance of Certain Obligations........................................94
SECTION 8.04. Application of Trust Money...............................................95
SECTION 8.05. Repayment to Company.....................................................96
SECTION 8.06. Reinstatement............................................................96
ARTICLE NINE AMENDMENTS, SUPPLEMENTS AND WAIVERS............................................................97
SECTION 9.01. Without Consent of Holders...............................................97
SECTION 9.02. With Consent of Holders..................................................97
SECTION 9.03. Revocation and Effect of Consent.........................................99
SECTION 9.04. Notation on or Exchange of Notes........................................100
SECTION 9.05. Trustee to Sign Amendments, Etc.........................................100
SECTION 9.06. Conformity with Trust Indenture Act.....................................100
ARTICLE TEN ESCROW GUARANTEE OF SECURITIES.................................................................101
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SECTION 10.01. Escrow Guaranty.........................................................101
SECTION 10.02. Execution and Delivery of the Escrow Guaranty...........................102
SECTION 10.03. Release of the Escrow Guarantor.........................................103
SECTION 10.04. Waiver of Subrogation...................................................103
SECTION 10.05. Immediate Payment.......................................................104
SECTION 10.06. No Set-Off..............................................................104
SECTION 10.07. Obligations Absolute....................................................104
SECTION 10.08. Obligations Continuing..................................................104
SECTION 10.09. Obligations Not Reduced.................................................105
SECTION 10.10. Obligations Reinstated..................................................105
SECTION 10.11. Obligations Not Affected................................................105
SECTION 10.12. Waiver..................................................................107
SECTION 10.13. No Obligation to Take Action Against Company............................107
SECTION 10.14. Dealing with the Company and Others.....................................107
SECTION 10.15. Default and Enforcement.................................................108
ARTICLE ELEVEN COLLATERAL AND SECURITY.....................................................................109
SECTION 11.01. Escrow Agreement........................................................109
SECTION 11.02. Recording and Opinions..................................................109
SECTION 11.03. Release of Collateral...................................................110
SECTION 11.04. Certificates of the Escrow Guarantor....................................111
SECTION 11.05. Authorization of Actions To Be Taken by the Trustee Under
the Escrow Agreement................................................111
SECTION 11.06. Authorization of Receipt of Funds by the Trustee Under the
Escrow Agreement....................................................112
SECTION 11.07. Termination of Security Interest........................................112
ARTICLE TWELVE MISCELLANEOUS...............................................................................112
SECTION 12.01. Trust Indenture Act of 1939.............................................112
SECTION 12.02. Notices.................................................................112
SECTION 12.03. Certificate and Opinion as to Conditions Precedent......................113
SECTION 12.04. Statements Required in Certificate......................................114
SECTION 12.05. Rules by Trustee, Paying Agent or Registrar.............................114
SECTION 12.06. Payment Date Other Than a Business Day..................................114
SECTION 12.07. Governing Law...........................................................115
SECTION 12.08. No Adverse Interpretation of Other Agreements...........................115
SECTION 12.09. No Recourse Against Others..............................................115
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SECTION 12.10. Successors..............................................................115
SECTION 12.11. Duplicate Originals.....................................................115
SECTION 12.12. Separability............................................................116
SECTION 12.13. Table of Contents, Headings, Etc........................................116
SECTION 12.14. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities..........................................................116
SECTION 12.15. Judgment Currency.......................................................117
EXHIBIT A - Form of Note
EXHIBIT B - Certificate to be Delivered Upon Exchange or Registration of Notes
EXHIBIT C - Form of Certificate to be Delivered in Connection with Transfers to Institutional
Accredited Investors
EXHIBIT D - Form of Certificate to be Delivered in Connection with Transfers Pursuant to
Regulation S
EXHIBIT E - Terms of Subsidiary Guaranty
EXHIBIT F - Form of Subsidiary Guaranty
EXHIBIT G - Form of Subordination for Deeply Subordinated Indebtedness
EXHIBIT H - Form of Escrow Guaranty
EXHIBIT I - Escrow Agreement
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INDENTURE, dated as of February 16, 1999, between COMPLETEL
EUROPE N.V., a Netherlands public company with limited liability (the
"Company"), CompleTel ECC B.V., a Netherlands private company with limited
liability (the "Escrow Guarantor") and U.S. BANK TRUST NATIONAL ASSOCIATION,
a national banking corporation (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery
of this Indenture to provide for the issuance of $147,500,000 aggregate
principal amount at maturity of the Company's 14% Senior Discount Notes due
2009 (the "Notes") issuable as provided in this Indenture. The Notes were
issued and sold in connection with the issue and sale of an aggregate of
147,500 Units (the "Units"), consisting of $147,500,000 principal amount at
maturity Notes and an aggregate of 1,475,000 Non-Voting Class B Membership
Interests of CompleTel Holdings LLC (each a "Class B Interest"). Each Unit
consists of a $1,000 principal amount at maturity Note and 10 Class B
Interests. The Notes and the Class B Interests constituting the Units will
not be separately transferable until the earliest of (i) six months after the
Issue Date (as defined herein), (ii) the effective date of the shelf
registration statement (as defined herein) or the consummation of an exchange
offer pursuant to the Notes Registration Rights Agreement(as defined herein),
(iii) the occurrence of an Event of Default (as defined herein), (iv) the
occurrence of a Change of Control (as defined herein) or (v) such earlier
date as determined by ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. in its sole discretion;
PROVIDED that in no event will the Notes and Class B Interests become
separately transferable prior to the release of funds from the Escrow Account
(as defined herein), as provided in the Escrow Agreement (as defined herein)
(the date of the occurrence of an event specified in clauses (i) through (v),
the "Separability Date"). All things necessary to make this Indenture a valid
agreement of the Company and the Escrow Guarantor, in accordance with its
terms, have been done, and the Company has done all things necessary to make
the Notes, when executed by the Company and the Escrow Guaranty, when
endorsed by the Escrow Guarantor and the Notes, when authenticated and
delivered by the Trustee hereunder and duly issued by the Company, the valid
obligations of the Company and the Escrow Guaranty, when endorsed by the
Escrow Guarantor as hereinafter provided. By separate agreement dated the
date hereof, CompleTel LLC entered into a guaranty agreement providing for an
unconditional and irrevocable guaranty of the Indenture Obligations and the
Notes (as defined herein).
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This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required
to be a part of and to govern indentures qualified under the Trust Indenture
Act of 1939, as amended.
AND THIS INDENTURE FURTHER WITNESSETH
For and in consideration of the premises and the purchase
of the Notes by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, as follows.
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Accreted Value" means, for any Specified Date, the amount
provided below for each $1,000 principal amount at maturity of Notes:
(i) if the Specified Date occurs on one of the following
dates (each a "Semi-Annual Accrual Date"), the Accreted Value will
equal the amount set forth below for such Semi-Annual Accrual Date:
SEMI-ANNUAL ACCRUAL DATE ACCRETED VALUE
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August 15, 1999 $543.93
February 15, 2000 582.01
August 15, 2000 622.75
February 15, 2001 666.34
August 15, 2001 712.99
February 15, 2002 762.90
August 15, 2002 816.30
February 15, 2003 873.44
August 15, 2003 934.58
February 15, 2004 $1,000.00
(ii) if the Specified Date occurs before the first
Semi-Annual Accrual Date, the Accreted Value of the Notes will equal
the sum of (a) $508.54 and (b) an amount equal to the product of (1)
the applicable Accreted Value for the first Semi-Annual Accrual Date
less $508.54, MULTIPLIED by (2) a fraction, the numerator of which is
the
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number of days from the Issue Date to the Specified Date, using a
360-day year of twelve 30-day months, and the denominator of which is
the number of days from the Issue Date to the first Semi-Annual Accrual
Date, using a 360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual
Accrual Dates, the Accreted Value will equal the sum of (a) the
applicable Accreted Value for the Semi-Annual Accrual Date immediately
preceding such Specified Date and (b) an amount equal to the product of
(1) the applicable Accreted Value for the immediately following
Semi-Annual Accrual Date less the Accreted Value for the immediately
preceding Semi-Annual Accrual Date MULTIPLIED by (2) a fraction, the
numerator of which is the number of days from the immediately preceding
Semi-Annual Accrual Date to the Specified Date, using a 360-day year of
twelve 30-day months, and the denominator of which is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual
Accrual Date, the Accreted Value will equal $1,000.
"Acquired Indebtedness" means Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or assumed
in connection with an Asset Acquisition by a Restricted Subsidiary and not
Incurred in connection with, or in anticipation of, such Person becoming a
Restricted Subsidiary or such Asset Acquisition.
"Additional Amounts" has the meaning provided in Section 4.21.
"Adjusted Consolidated Net Income" means, for any period,
the aggregate net income (or loss) of the Company and the Restricted
Subsidiaries for such period determined in conformity with GAAP; PROVIDED
that the following items shall be excluded in computing Adjusted Consolidated
Net Income (without duplication): (i) the net income (or loss) of any Person
that is not a Restricted Subsidiary, except (x) with respect to net income,
to the extent of the amount of dividends or other distributions actually paid
to the Company or any of the Restricted Subsidiaries by such Person during
such period and (y) with respect to net losses, to the extent of the amount
of Investments made by the Company or any Restricted Subsidiary in such
Person; (ii) the net income of any Restricted Subsidiary to the extent that
the declaration or payment of dividends or similar distributions by such
Restricted Subsidiary out of such
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net income is not at the time permitted by the operation of the terms of its
charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Restricted Subsidiary; PROVIDED
that solely for the purposes of calculating the Consolidated Leverage Ratio,
any determination as to the exclusion of net income of a Restricted
Subsidiary pursuant to this clause (ii) shall not give effect to any
restrictions on the declaration or payment of dividends or other
distributions which are permitted pursuant to clause (vi) of the second
paragraph under Section 4.05; (iii) any gains or losses (on an after-tax
basis) attributable to Asset Sales; (iv) except for purposes of calculating
the amount of Restricted Payments that may be made pursuant to clause (C) of
the first paragraph of Section 4.04, any amount paid or accrued as dividends
on Preferred Stock of the Company or any Restricted Subsidiary owned by
Persons other than the Company and any of the Restricted Subsidiaries; (v)
all extraordinary gains and extraordinary losses; (vi) any compensation
expense paid or payable solely with Capital Stock (other than Disqualified
Stock) of the Company; and (vii) net income (or loss) of any Person combined
with the Company or any Restricted Subsidiary on a "pooling of interests"
basis attributable to any period commencing prior to the date of combination.
"Affiliate" means, as applied to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, authenticating
agent or co-Registrar.
"Agent Members" has the meaning provided in Section 2.07(a).
"Approved Jurisdiction" means any state of the United
States or the District of Columbia, The Netherlands or any other Member State
(as defined in the Mastricht Treaty) of the European Community in respect of
which the Company delivers an Opinion of Counsel to the effect that the laws
of such jurisdiction will not adversely affect the Holders of the Notes.
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"Asset Acquisition" means (i) an investment by the Company
or any of the Restricted Subsidiaries in any other Person pursuant to which
such Person shall become a Restricted Subsidiary or shall be merged into or
consolidated with the Company or any of the Restricted Subsidiaries or (ii)
an acquisition by the Company or any of the Restricted Subsidiaries of the
property and assets of any Person other than the Company or any of the
Restricted Subsidiaries that constitute substantially all of a division or
line of business of such Person or which is otherwise outside of the ordinary
course of business.
"Asset Disposition" means the sale or other disposition by
the Company or any of the Restricted Subsidiaries (other than to the Company
or another Restricted Subsidiary) of (i) Capital Stock of any Restricted
Subsidiary, (ii) all or substantially all of the assets that constitute a
division or line of business of the Company or any of the Restricted
Subsidiaries or (iii) its assets outside of the ordinary course of business.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transaction) in
one transaction or a series of related transactions by the Company or any of
the Restricted Subsidiaries to any Person other than the Company or any of
the Restricted Subsidiaries of (i) all or any of the Capital Stock of any
Restricted Subsidiary, (ii) all or substantially all of the property and
assets of an operating unit or business of the Company or any of the
Restricted Subsidiaries or (iii) any other property and assets (other than
the Capital Stock or other Investment in an Unrestricted Subsidiary) of the
Company or any of the Restricted Subsidiaries outside the ordinary course of
business of the Company or such Restricted Subsidiary and, in each case, that
is not governed by the provisions of this Indenture applicable to mergers,
consolidations and sales of all or substantially all of the assets of the
Company; PROVIDED that "Asset Sale" shall not include (a) sales or other
dispositions of inventory, receivables and other current assets, (b) sales,
transfers or other dispositions of assets constituting a Restricted Payment
permitted to be made under Section 4.04, or (c) sales, transfers or other
dispositions of assets with a fair market value (as certified in an Officers'
Certificate) not in excess of $2 million (or, to the extent non-U.S. dollar
denominated, the U.S. Dollar Equivalent thereof) in any transaction or series
of related transactions.
"Available Escrow Proceeds" has the meaning provided in the
Escrow Agreement.
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"Average Life" means, at any date of determination with
respect to any debt security, the quotient obtained by dividing (i) the sum
of the products of (a) the number of years from such date of determination to
the dates of each successive scheduled principal payment of such debt
security and (b) the amount of such principal payment by (ii) the sum of all
such principal payments.
"Board of Directors" means, prior to the occurrence of a
Public Market, the board of directors of Parent or any committee of such
board of directors duly authorized to act under this Indenture and following
the occurrence of a Public Market, the board of managing directors of the
Company or any committee of such board of directors duly authorized to act
under this Indenture.
"Business Day" means any day except Saturday, Sunday or
other day on which commercial banks in The City of New York, or the city of
the Corporate Trust Office are authorized by law to close.
"Capital Stock" means, with respect to any Person, any and
all shares, interests, participations, rights in or other equivalents
(however designated, whether voting or non-voting) of such Person's capital
stock, whether outstanding on the Issue Date or issued thereafter, and any
and all rights (other than any evidence of Indebtedness), warrants or options
exchangeable for or convertible into such capital stock.
"Capitalized Lease" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) of which the
discounted present value of the rental obligations of such Person as lessee,
in conformity with GAAP, is required to be capitalized on the balance sheet
of such Person.
"Capitalized Lease Obligations" means the discounted
present value of the rental obligations under a Capitalized Lease.
"Change of Control" means such time as (i) (a) prior to the
occurrence of a Public Market, a "person" or "group" (within the meaning of
Sections 13(d) and 14(d)(2) of the Exchange Act), other than a person or
group controlled exclusively by the Equity Investors, becomes the ultimate
"beneficial owner" (as defined in Rules l3d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such right
is exercisable immediately
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or only after the passage of time) of Voting Stock representing a greater
percentage of the total voting power of the Voting Stock of (x) CompleTel
LLC, on a fully diluted basis, than is beneficially owned by the Equity
Investors on such date or (y) the Company, on a fully diluted basis, than is
beneficially owned by the Existing Stockholders on such date and (b) after
the occurrence of a Public Market, a "person" or "group" (within the meaning
of Sections 13(d) and 14(d)(2) of the Exchange Act), other than a person or
group controlled exclusively by the Equity Investors, becomes the ultimate
"beneficial owner" (as defined in Rules l3d-3 and 13d-5 under the Exchange
Act, except that a person shall be deemed to have "beneficial ownership" of
all securities that such person has the right to acquire, whether such right
is exercisable immediately or only after the passage of time) of more than
35% of the total voting power of the Voting Stock of the Company on a fully
diluted basis and such ownership represents a greater percentage of the total
voting power of the Voting Stock of the Company, on a fully diluted basis,
than is held by the Existing Stockholders on such date; or (ii) the Company
consolidates with, or merges with or into, another person or sells, assigns,
conveys, transfers, leases or otherwise disposes of all or substantially all
of its assets to any person, or any person consolidates with, or merges with
or into, the Company, in any such event pursuant to a transaction in which
the outstanding Voting Stock of the Company is converted into or exchanged
for cash, securities or other property, other than any such transaction where
(a) the outstanding Voting Stock of the Company is converted into or
exchanged for (1) Voting Stock (other than Disqualified Stock) of the
surviving or transferee corporation or its parent corporation and/or (2)
cash, securities and other property in an amount which could be paid by the
Company as a Restricted Payment under this Indenture and (b) immediately
after such transaction no "person" or "group" (as such terms are used in
Section 13(d) and 14(d) of the Exchange Act), other than a person or group
controlled exclusively by the Equity Investors, is the "beneficial owner" (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a person
shall be deemed to have "beneficial ownership" of all securities that such
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly, of
more than 35% of the total Voting Stock of the surviving or transferee
corporation or its parent corporation, as applicable and is the beneficial
owner of a greater percentage of such Voting Stock than the Equity Investors;
or (iii) following the occurrence of a Public Market, individuals who on the
date of occurrence of a Public Market constitute the Board of Directors
(together with any thereafter
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elected directors whose election by the Board of Directors or whose
nomination by the Board of Directors for election by the Company's
stockholders was approved by a vote of at least two-thirds of the members of
the Board of Directors then in office who either were members of the Board of
Directors on the occurrence of a Public Market Date or whose election or
nomination for election was previously so approved) cease for any reason to
constitute a majority of the members of the Board of Directors then in office.
"Class B Interest" has the meaning provided in the recitals
to this Indenture.
"Collateral" has the meaning provided in the Escrow
Agreement.
"Commission" means the Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act or, if at
any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the TIA, then the
body performing such duties at such time.
"Common Stock" means, with respect to any person, any and
all shares, interests or other participations in, and other equivalents
(however designated and whether voting or nonvoting) of such person's common
equity whether or not outstanding at the Issue Date, and includes, without
limitation, all series and classes of such common equity.
"Company" means the party named as such in the first
paragraph of this Indenture until a successor replaces it pursuant to Article
Five of this Indenture and thereafter means the successor.
"Company Order" means a written request or order signed in
the name of the Company (i) by its Managing Director or (ii) by two
authorized signatories (by virtue of a power of attorney or other similar
instrument) and delivered to the Trustee.
"Consolidated EBITDA" means, for any period, Adjusted
Consolidated Net Income for such period plus, to the extent such amount was
deducted in calculating such Adjusted Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) income taxes (other than income taxes
(either positive or negative) attributable to extraordinary and nonrecurring
gains or losses or sales of assets), (iii) depreciation expense, (iv)
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amortization expense and (v) all other non-cash items reducing Adjusted
Consolidated Net Income (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made), less
all non-cash items increasing Adjusted Consolidated Net Income, all as
determined on a consolidated basis for the Company and the Restricted
Subsidiaries in conformity with GAAP; PROVIDED that, if any Restricted
Subsidiary is not a Wholly Owned Restricted Subsidiary, Consolidated EBITDA
shall be reduced (to the extent not otherwise reduced in accordance with
GAAP) by an amount equal to (A) the amount of the Adjusted Consolidated Net
Income attributable to such Restricted Subsidiary multiplied by (B) the
percentage ownership interest in the income of such Restricted Subsidiary not
owned on the last day of such period by the Company or any of the Restricted
Subsidiaries.
"Consolidated Interest Expense" means, for any period, the
aggregate amount of interest in respect of Indebtedness (including, without
limitation, amortization of original issue discount on any Indebtedness and
the interest portion of any deferred payment obligation, calculated in
accordance with the effective interest method of accounting; all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing; the net costs associated with Interest
Rate Agreements, and Indebtedness that is Guaranteed or secured by the
Company or any of the Restricted Subsidiaries) and all but the principal
component of rentals in respect of Capitalized Lease Obligations paid,
accrued or scheduled to be paid or to be accrued by the Company and the
Restricted Subsidiaries during such period; EXCLUDING, HOWEVER, (i) any
amount of such interest of any Restricted Subsidiary if the net income of
such Restricted Subsidiary is excluded in the calculation of Adjusted
Consolidated Net Income pursuant to clause (ii) of the definition thereof
(but only in the same proportion as the net income of such Restricted
Subsidiary is excluded from the calculation of Adjusted Consolidated Net
Income pursuant to clause (iii) of the definition thereof) and (ii) any
premiums, fees and expenses (and any amortization thereof) payable in
connection with the Offering of the Notes, all as determined on a
consolidated basis (without taking into account Unrestricted Subsidiaries) in
conformity with GAAP.
"Consolidated Leverage Ratio" means, on any Transaction
Date, the ratio of (i) the aggregate amount of Indebtedness of the Company
and the Restricted Subsidiaries on a consolidated basis outstanding on such
Transaction Date to (ii) the aggregate amount of Consolidated EBITDA for the
then most
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recent four fiscal quarters (or since inception of the Company, if less than
four fiscal quarters) for which financial statements of the Company have been
filed with the Commission or provided to the Trustee pursuant to Section 4.18
(such period being the "Four Quarter Period"); PROVIDED that, in making the
foregoing calculation, (A) PRO FORMA effect shall be given to any
Indebtedness to be Incurred or repaid on the Transaction Date; (B) PRO FORMA
effect shall be given to Asset Dispositions and Asset Acquisitions (including
giving PRO FORMA effect to the application of proceeds of any Asset
Disposition) that occur from the beginning of the Four Quarter Period through
the Transaction Date (the "Reference Period") as if they had occurred and
such proceeds had been applied on the first day of such Reference Period; (C)
PRO FORMA effect shall be given to asset dispositions and asset acquisitions
(including giving PRO FORMA effect to the application of proceeds of any
asset disposition) that have been made by any Person that has become a
Restricted Subsidiary or has been merged with or into the Company or any
Restricted Subsidiary during such Reference Period and that would have
constituted Asset Dispositions or Asset Acquisitions had such transactions
occurred when such Person was a Restricted Subsidiary as if such asset
dispositions or asset acquisitions were Asset Dispositions or Asset
Acquisitions that occurred on the first day of such Reference Period;
PROVIDED that to the extent that clause (B) or (C) of this sentence requires
that PRO FORMA effect be given to an Asset Acquisition or Asset Disposition,
such PRO FORMA calculation shall be based upon the four full fiscal quarters
immediately preceding the Transaction Date of the Person, or division or line
of business of the Person, that is acquired or disposed of for which
financial information is available; (D) the aggregate amount of Indebtedness
outstanding as of the end of the Reference Period will be deemed to include
the total amount of funds outstanding and/or available on the Transaction
Date under any revolving credit or similar facilities of the Company or the
Restricted Subsidiaries; and (E) (i) any Subsidiary of the Company that is a
Restricted Subsidiary on the Transaction Date shall be deemed to have been a
Restricted Subsidiary at all times during the Reference Period and (ii) any
Subsidiary of the Company that is not a Restricted Subsidiary on the
Transaction Date shall be deemed not to have been a Restricted Subsidiary at
any time during the Reference Period.
"Consolidated Net Worth" means, at any date of
determination, stockholders' equity as set forth on the most recently
available quarterly or annual consolidated balance sheet
-10-
of the Company and its Restricted Subsidiaries (which shall be as of a date
not more than 90 days prior to the date of such computation, and which shall
not take into account Unrestricted Subsidiaries), less any amounts
attributable to Disqualified Stock or any equity security convertible into or
exchangeable for Indebtedness, the cost of treasury stock and the principal
amount of any promissory notes receivable from the sale of the Capital Stock
of the Company or any of its Restricted Subsidiaries, each item to be
determined in conformity with GAAP (excluding the effects of foreign currency
exchange adjustments under Financial Accounting Standards Board Statement of
Financial Accounting Standards No. 52).
"Corporate Trust Office" means the office of the Trustee at
which the corporate trust business of the Trustee shall, at any particular
time, be principally administered, which office is, at the date of this
Indenture, located at ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Corporate Trust Department, except for purposes of Section 2.04
and Section 4.02. For purposes of such sections, such office is located at
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Trust Department.
"Cumulative Available Cash Flow" means, as of any date of
determination, the positive cumulative Consolidated EBITDA realized during
the period commencing on the first day of the fiscal quarter which includes
the Issue Date and ending on the last day of the last fiscal quarter
preceding the Transaction Date for which reports have been filed with the
Commission or provided to the Trustee pursuant to Section 4.18 or, if such
cumulative Consolidated EBITDA for such period is negative, the amount by
which cumulative Consolidated EBITDA is less than zero.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement or other similar agreement or arrangement.
"Debt Securities" means any bonds, notes, debentures or
other similar instruments (excluding, in any event, (i) any Capitalized Lease
Obligations and (ii) any notes, bankers' acceptances or other instruments
evidencing commercial loans or equipment financing made by, and bills of
exchange drawn on, banks, other financial lending institutions or equipment
vendors) issued by the Company or by any Restricted Subsidiary (including by
means of any Guaranty of the Company or of any Restricted Subsidiary of
securities of another Person), whether in a public offering or private
placement.
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"Deeply Subordinated Shareholder Indebtedness" means
indebtedness of the Company, not to exceed $100 million in aggregate
principal amount at maturity outstanding at any time, borrowed from and held
by an Existing Stockholder, which indebtedness by its terms, or by the terms
of any agreement or instrument pursuant to which such indebtedness is
incurred, (i) is expressly made subordinate in right of payment and postponed
as to all payments of principal, interest and Additional Amounts in respect
of the Notes and (ii) provides that no payment of principal, premium or
interest on, or any other payment with respect to, such indebtedness may be
made prior to the earlier of (x) the indefeasible payment in full in cash of
all of the Company's obligations under the Notes and (y) the 92nd day after
the final maturity of the Notes; PROVIDED that such indebtedness may provide
for and be repaid at any time from the proceeds of a capital contribution or
the sale of Capital Stock (other than Disqualified Stock) of the Company
after the incurrence of such indebtedness; PROVIDED FURTHER that the
subordination terms of such indebtedness are substantially in the form
attached hereto as Exhibit E and the Company receives an Opinion of Counsel
as to the validity and enforceability of such subordination terms; PROVIDED
FURTHER that any event which results in an Existing Stockholder ceasing to
hold such indebtedness shall be deemed to be an Incurrence of Indebtedness
and thereafter such Indebtedness to cease to be Deeply Subordinated
Shareholder Indebtedness.
"Default" means any event that is, or after notice or
passage of time or both would be, an Event of Default.
"Depositary" means The Depository Trust Company, its
nominees and their respective successors.
"Disqualified Stock" means any class or series of Capital
Stock of any Person that by its terms or otherwise is (i) required to be
redeemed prior to the Stated Maturity of the Notes, (ii) redeemable at the
option of the holder of such class or series of Capital Stock at any time
prior to the Stated Maturity of the Notes or (iii) convertible into or
exchangeable for Capital Stock referred to in clause (i) or (ii) above or
Indebtedness having a scheduled maturity prior to the Stated Maturity of the
Notes; PROVIDED that any Capital Stock that would not constitute Disqualified
Stock but for provisions thereof giving holders thereof the right to require
such Person to repurchase or redeem such Capital Stock upon the occurrence of
an "asset sale" or "change of control" occurring prior to the Stated Maturity
of the Notes shall not constitute Disqualified Stock if the "asset sale" or
"change of control" provi-
-12-
sions applicable to such Capital Stock are no more favorable to the holders
of such Capital Stock than the provisions contained in Section 4.10 and
Section 4.12 and such Capital Stock, or the agreements or instruments
governing the redemption rights thereof, specifically provides that such
Person will not repurchase or redeem any such stock pursuant to such
provision prior to the Company's repurchase of such Notes as are required to
be repurchased pursuant to Section 4.10 and Section 4.12.
"Equity Investors" means Madison Dearborn Partners, Inc.
and LPL Investment Group, Inc., and their respective Affiliates.
"Escrow Account" has the meaning provided in the Escrow
Agreement.
"Escrow Agent" has the meaning provided in the Escrow
Agreement.
"Escrow Agreement" means the agreement dated February 16,
1999 among the Company, the Escrow Guarantor, the Trustee, the Escrow Agent
and U.S. Bank Trust National Association, as Unit Agent, attached hereto as
Exhibit I.
"Escrow Guarantor" means CompleTel ECC B.V., a Netherlands
private company with limited liability.
"Escrow Guarantor's Guaranteed Obligations" means the
principal of, premium, if any, interest on, and Additional Amounts, if any,
and all other amounts owing by the Company with respect to (including its
obligations to the Trustee under Section 7.7 of this Indenture), the Notes
under this Indenture and all other indebtedness, liabilities and obligations
of the Company at any time and from time to time existing or arising under
this Indenture.
"Escrow Guaranty" has the meaning provided in 10.02.
"Event of Default" has the meaning provided in Section 6.01.
"Excess Proceeds" has the meaning provided in Section 4.10.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
-13-
"Exchange Notes" means the 14% Senior Discount Notes due
2009 that are issued and exchanged for the Initial Notes after Registration
pursuant to the Notes Registration Rights Agreement and this Indenture in
substantially the form annexed hereto as Exhibit A, containing the
Netherlands Legend and not containing a Private Placement Legend.
"Existing Stockholders" means (i) the Equity Investors and
(ii) CompleTel LLC and its successors, so long as the Equity Investors, in
the aggregate, beneficially own a majority of the Voting Stock of any such
Person.
"fair market value" means the price that would be paid in
an arm's length transaction between an informed and willing seller under no
compulsion to sell and an informed and willing buyer under no compulsion to
buy, as determined in good faith by the Board of Directors, whose
determination shall be conclusive if evidenced by a Board Resolution;
PROVIDED that for purposes of the definition of "Total Incremental Equity,"
(x) the fair market value of any security registered under the Exchange Act
shall be the average of the closing prices, regular way, of such security for
the 20 consecutive trading days immediately preceding the sale of Capital
Stock and (y) in the event the aggregate fair market value of any other
property (other than cash or cash equivalents) received by the Company
exceeds $10 million (or, to the extent non-U.S dollar denominated, the U.S.
Dollar Equivalent thereof), the fair market value of such property shall be
determined by an internationally recognized investment banking firm and set
forth in its written opinion which shall be delivered to the Trustee.
"Financing Condition" has the meaning provided in the
Escrow Agreement.
"GAAP" means generally accepted accounting principles in
the United States of America as in effect as of the Issue Date, including,
without limitation, those set forth in the opinions and pronouncements of the
Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as approved
by a significant segment of the accounting profession. All ratios and
computations contained or referred to in this Indenture shall be computed in
conformity with GAAP applied on a consistent basis.
"Global Notes" means a security evidencing all or a portion
of the Notes issued to the Depositary or its nominee in
-14-
accordance with Section 2.01 and bearing the legend in the second paragraph
of Section 2.02.
"Guaranteed Indebtedness" has the meaning provided in
Section 4.07.
"Guaranteed Parties" means all the persons who are now or
who hereafter become Holders and the Trustee under this Indenture.
"Guaranty" means any obligation, contingent or otherwise,
of any Person directly or indirectly guaranteeing any Indebtedness of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i)
to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness of such other Person (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services (unless such purchase arrangements are on
arm's-length terms and are entered into in the ordinary course of business),
to take-or-pay, or to maintain financial statement conditions or otherwise)
or (ii) entered into for purposes of assuring in any other manner the obligee
of such Indebtedness of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); PROVIDED that the term
"Guaranty" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Holder" or "Noteholder" means the registered holder of any
Note.
"IAI Global Notes" has the meaning provided in Section 2.01.
"Incur" means, with respect to any Indebtedness, to
directly or indirectly incur, create, issue, assume, Guarantee or otherwise
become liable for or with respect to, or become responsible for, the payment
of, contingently or otherwise, such Indebtedness, including an "Incurrence"
of Acquired Indebtedness; PROVIDED that neither the accrual of interest nor
the accretion of original issue discount shall be considered an Incurrence of
Indebtedness.
"Indebtedness" means, with respect to any Person at any
date of determination (without duplication), (i) all indebtedness of such
Person for borrowed money, (ii) all obliga-
-15-
tions of such Person evidenced by bonds, debentures, notes or other similar
instruments, (iii) all obligations of such Person in respect of letters of
credit or other similar instruments (including reimbursement obligations with
respect thereto, but excluding obligations with respect to letters of credit
(including trade letters of credit) securing obligations (other than
obligations described in (i) or (ii) above or (v), (vi), (vii) or (viii)
below) entered into in the ordinary course of business of such Person to the
extent such letters of credit are not drawn upon or, if drawn upon, to the
extent such drawing is reimbursed no later than the third business day
following receipt by such Person of a demand for reimbursement), (iv) all
obligations of such Person to pay the deferred and unpaid purchase price of
property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (v) all
Capitalized Lease Obligations of such Person, (vi) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; PROVIDED that the amount of such
Indebtedness shall be the lesser of (A) the fair market value of such asset
at such date of determination and (B) the amount of such Indebtedness, (vii)
all Indebtedness of other Persons Guaranteed by such Person to the extent
such Indebtedness is Guaranteed by such Person, (viii) all Disqualified Stock
valued at the greater of its voluntary or involuntary maximum fixed
repurchase price plus accrued dividends, and (ix) to the extent not otherwise
included in this definition, obligations under Currency Agreements and
Interest Rate Agreements. The amount of Indebtedness of any Person at any
date shall be the outstanding balance at such date (or, in the case of a
revolving credit or other similar facility, the total amount of funds
outstanding and/or available on the date of determination) of all
unconditional obligations as described above and, with respect to contingent
obligations, the maximum liability upon the occurrence of the contingency
giving rise to the obligation, PROVIDED (A) that the amount outstanding at
any time of any Indebtedness issued with original issue discount is the face
amount of such Indebtedness less the remaining unamortized portion of the
original issue discount of such Indebtedness at the time of its issuance as
determined in conformity with GAAP, (B) that money borrowed and set aside at
the time of the Incurrence of any Indebtedness in order to prefund the
payment of the interest on such Indebtedness shall not be deemed to be
"Indebtedness" so long as such money is held to secure the payment of such
interest and (C) that Indebtedness shall not include any liability for
federal, state, local or any other applicable taxes. In no event shall
-16-
Deeply Subordinated Shareholder Indebtedness constitute "Indebtedness" under
this Indenture, unless the holder thereof or another party shall commence
proceedings or otherwise seek to invalidate the subordination terms thereof.
"Indenture" means this Indenture as originally executed or
as it may be amended or supplemented from time to time by one or more
indentures supplemental to this Indenture entered into pursuant to the
applicable provisions of this Indenture.
"Indenture Obligations" has the meaning provided in
Section 10.02.
"Initial Escrow Amount" has the meaning provided in the
Escrow Agreement.
"Initial Notes" means the 14% Senior Discount Notes due
2009, prior to Registration and substantially in the form of Exhibit A and
containing the Private Placement Legend.
"Institutional Accredited Investor" means an institution
that is an "accredited investor" as that term is defined in Rule 501(a)(1),
(2), (3) or(7) under the Securities Act.
"Interest Payment Date" means each semiannual interest
payment date on February 15 and August 15 of each year, commencing August 15,
2004.
"Interest Rate Agreement" means any interest rate
protection agreement, interest rate future agreement, interest rate option
agreement, interest rate swap agreement, interest rate cap agreement,
interest rate collar agreement, interest rate hedge agreement, option or
future contract or other similar agreement or arrangement.
"Investment" in any Person means any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guaranty or similar arrangement; but excluding advances to customers
in the ordinary course of business that are, in conformity with GAAP,
recorded as accounts receivable on the balance sheet of the Company or the
Restricted Subsidiaries) or capital contribution to (by means of any transfer
of cash or other property (other than Capital Stock which is not Disqualified
Stock) to others or any payment for property or services for the account or
use of others), or any purchase or acquisition of Capital Stock, bonds,
notes, debentures or other similar instruments issued by, such Person
-17-
and shall include (i) the designation of a Restricted Subsidiary as an
Unrestricted Subsidiary and (ii) the fair market value of the Capital Stock
(or any other Investment) held by the Company or any of the Restricted
Subsidiaries of (or in) any Person that has ceased to be a Restricted
Subsidiary, including, without limitation, by reason of any transaction
permitted by clause (iii) of Section 4.06. For purposes of the definition of
"Unrestricted Subsidiary" and Section 4.04, (i) "Investment" shall include
the fair market value of the assets (net of liabilities (other than
liabilities to the Company or any of the Restricted Subsidiaries)) of any
Restricted Subsidiary at the time that such Restricted Subsidiary is
designated an Unrestricted Subsidiary, (ii) the fair market value of the
assets (net of liabilities (other than liabilities to the Company or any of
the Restricted Subsidiaries)) of any Unrestricted Subsidiary at the time that
such Unrestricted Subsidiary is designated a Restricted Subsidiary shall be
considered a reduction in outstanding Investments and (iii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at its fair
market value at the time of such transfer. Notwithstanding the foregoing, in
no event shall any issuance of Capital Stock (other than Disqualified Stock)
of the Company in exchange for Capital Stock, property or assets of another
Person constitute an Investment by the Company in such other Person.
"Issue Date" means the date on which the Notes are
originally issued under this Indenture.
"Leveraged Subsidiary" means any Subsidiary Guarantor that
has Incurred Indebtedness (other than Acquired Indebtedness) pursuant to the
first paragraph of Section 4.03 and any Refinancings thereof Incurred under
clause (ii) of the second paragraph of Section 4.03 for so long as any such
Indebtedness, or any Refinancing thereof, is outstanding.
"License" means authorization (or renewal thereof) from the
applicable federal or national level governmental agency or authority to
construct and operate a local switched network providing wireline
telecommunications services.
"Liquidated Damages" has the meaning provided in the Notes
Registration Rights Agreement.
"Lien" means any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind (including, without limitation, any
conditional sale or other title retention
-18-
agreement or lease in the nature thereof or any agreement to give any
security interest).
"Management Services Agreements" means agreements pursuant
to which CableTel Management Inc. provides management services to the Company
or a Restricted Subsidiary; PROVIDED that the maximum fee payable by any
Person pursuant to any such agreement does not exceed 105% of the costs,
expenses, charges and disbursements allocated to such Person and incurred by
CableTel Management Inc. in connection with its performance of such agreement.
"Mandatory Redemption" shall have the meaning provided in
the Escrow Agreement.
"Mandatory Redemption Date" means May 13, 1999.
"Mandatory Redemption Notice" has the meaning set forth in
4.22(b).
"Mandatory Redemption Price" means the Accreted Value of
the Notes on the Mandatory Redemption Date.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc. and its
successors.
"Net Cash Proceeds" means (a) with respect to any Asset
Sale, the proceeds of such Asset Sale in the form of cash or cash
equivalents, including payments in respect of deferred payment obligations
(to the extent corresponding to the principal, but not interest, component
thereof) when received in the form of cash or cash equivalents (except to the
extent such obligations are financed or sold with recourse to the Company or
any Restricted Subsidiary) and proceeds from the conversion of other property
received when converted to cash or cash equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of
counsel and investment bankers) related to such Asset Sale, (ii) provisions
for all taxes (whether or not such taxes will actually be paid or are
payable) as a result of such Asset Sale without regard to the consolidated
results of operations of the Company and the Restricted Subsidiaries, taken
as a whole, (iii) payments made to repay Indebtedness or any other obligation
outstanding at the time of such Asset Sale that either (A) is secured by a
Lien on the property or assets sold or (B) is required to be paid as a result
of such sale and (iv) appropriate amounts to be provided by the Company or
any Restricted Subsidiary as a reserve against any liabilities associated
with such Asset Sale, in-
-19-
cluding, without limitation, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities
under any indemnification obligations associated with such Asset Sale, all as
determined in conformity with GAAP, and (b) with respect to any issuance or
sale of Capital Stock, the proceeds of such issuance or sale in the form of
cash or cash equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of cash or cash equivalents
(except to the extent such obligations are financed or sold with recourse to
the Company or any Restricted Subsidiary) and proceeds from the conversion of
other property received when converted to cash or cash equivalents, net of
attorneys' fees, accountants' fees, underwriters' or placement agents' fees,
discounts or commissions and brokerage, consultant and other fees incurred in
connection with such issuance or sale and net of taxes paid or payable as a
result thereof.
"Netherlands Legend" means the legend set forth in the
second and third paragraphs of Section 2.02 of this Indenture.
"Non-U.S. Person" means a person who is not a U.S. person,
as defined in Regulation S.
"Notes" means the Notes, as defined in the first paragraph
of the recitals hereof and any Exchange Notes to be issued and exchanged for
any Notes pursuant to the Notes Registration Rights Agreement and this
Indenture. For purposes of this Indenture, all Notes shall vote together as
one series of Notes under this Indenture.
"Notes Registration Rights Agreement" means the
Registration Rights Agreement, dated February 16, 1999, among the Company and
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, TD Securities (USA) Inc. and
Paribas Corporation and certain permitted assigns specified therein.
"Offer to Purchase" means an offer to purchase Notes by the
Company (or, in the event of a Change of Control, by a third party) from the
Holders commenced by mailing a notice to the Trustee and each Holder stating:
(i) the covenant pursuant to which the offer is being made and that all Notes
validly tendered will be accepted for payment on a pro rata basis; (ii) the
purchase price and the date of purchase (which shall be a business day no
earlier than 30 days nor later than 60 days
-20-
from the date such notice is mailed) (the "Payment Date"); (iii) that any
Note not tendered will continue to accrue interest (or original issue
discount, as the case may be) pursuant to its terms; (iv) that, unless there
is a default in the payment of the purchase price, any Note accepted for
payment pursuant to the Offer to Purchase shall cease to accrue interest (or
original issue discount, as the case may be) on and after the Payment Date;
(v) that Holders electing to have a Note purchased pursuant to the Offer to
Purchase will be required to surrender the Note, together with the form
entitled "Option of the Holder to Elect Purchase" on the reverse side of the
Note completed, to the Paying Agent at the address specified in the notice
prior to the close of business on the business day immediately preceding the
Payment Date; (vi) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the close of business on the
third business day immediately preceding the Payment Date, a telegram,
facsimile transmission or letter setting forth the name of such Holder, the
principal amount at maturity of Notes delivered for purchase and a statement
that such Holder is withdrawing his election to have such Notes purchased;
and (vii) that Holders whose Notes are being purchased only in part will be
issued new Notes equal in principal amount to the unpurchased portion of the
Notes surrendered; PROVIDED that each Note purchased shall be in a principal
amount at maturity of $1,000, or integral multiples thereof; PROVIDED FURTHER
that the principal amount at maturity of any Notes left outstanding will not
be less than $100,000. On the Payment Date, the Company shall (i) accept for
payment on a pro rata basis as among holders Notes or portions thereof
tendered pursuant to an Offer to Purchase; (ii) deposit with the Paying Agent
money sufficient to pay the purchase price of all Notes or portions thereof
so accepted; and (iii) deliver, or cause to be delivered, to the Trustee all
Notes or portions thereof so accepted together with an officers' certificate
specifying the Notes or portions thereof accepted for payment by the Company.
The Paying Agent shall promptly mail to the Holders of Notes so accepted
payment in an amount equal to the purchase price, and the Trustee shall
promptly authenticate and mail to such Holders a new Note equal in principal
amount at maturity to any unpurchased portion of the Note surrendered;
PROVIDED that each Note purchased and each new Note issued shall be an
integral multiple of $1,000, principal amount at maturity. The Company will
publicly announce the results of an Offer to Purchase as soon as practicable
after the Payment Date. The Trustee shall act as the Paying Agent for an
Offer to Purchase. The Company will comply with Rule l4e-1 under the Exchange
Act and any other securities laws and regulations thereunder to the extent
such laws and
-21-
regulations are applicable, in the event that the Company is required to
repurchase Notes pursuant to an Offer to Purchase.
"Officer" means, prior to the occurrence of a Public Market
with respect to Parent, (i) the Chairman of the Board, the President, any
Vice President, the Chief Financial Officer, and (ii) the Treasurer or any
Assistant Treasurer, or the Secretary or any Assistant Secretary following
the occurrence of a Public Market with respect to the Company, the Managing
Director or by two authorized signatories (by virtue of a power of attorney
or other similar instrument).
"Officer's Certificate" means a certificate signed by one
Officer listed in clause (i) of the definition thereof and one Officer listed
in clause (ii) of the definition thereof.
"Offshore Global Note" has the meaning provided in
Section 2.01.
"Opinion of Counsel" means a written opinion signed by
legal counsel who may be an employee of or counsel to the Company or the
Escrow Guarantor, as applicable. Each such Opinion of Counsel shall include
the statements provided for in TIA Section 314(e) to the extent required by
law.
"Parent" means CompleTel LLC, a Delaware limited liability
company.
"Pari Passu Debt" means Pari Passu Debt Securities of the
Company or of any Subsidiary Guarantor the terms of which require that Net
Cash Proceeds be used to permanently reduce (and thereby also reduce
commitments relating to) such Indebtedness.
"Pari Passu Debt Securities" means any Debt Securities of
the Company or any Subsidiary Guarantor which rank pari passu in right of
payment with the Notes and any Subsidiary Guaranties, as applicable.
"Pari Passu Pro Rata Share" means a fraction (i) the
numerator of which is the aggregate principal amount of Pari Passu Debt
outstanding on the date Net Cash Proceeds are received and (ii) the
denominator of which is the sum of (x) the aggregate principal amount of
Notes outstanding on such date and (y) the aggregate principal amount of any
Pari Passu Debt on such date.
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"Paying Agent" has the meaning provided in Section 2.04,
except that, for the purposes of Article Eight, the Paying Agent shall not be
the Company or a Subsidiary of the Company or an Affiliate of any of them.
The term "Paying Agent" includes any additional Paying Agent.
"Payment Date" has the meaning specified in the definition
of "Offer to Purchase."
"Permitted Investment" means (i) an Investment in the
Company or a Restricted Subsidiary or a Person which will, upon the making of
such Investment, become a Restricted Subsidiary or be merged or consolidated
with or into, or transfer or convey all or substantially all its assets to,
the Company or a Restricted Subsidiary; PROVIDED that such Person is
primarily engaged in a Telecommunications Business; (ii) Temporary Cash
Investments; (iii) payroll, travel and similar advances to cover matters that
are expected at the time of such advances ultimately to be treated as
expenses in accordance with GAAP; (iv) stock, obligations or securities
received in satisfaction of judgments; (v) Investments in prepaid expenses,
negotiable instruments held for collection and lease, utility and worker's
compensation, performance and other similar deposits; (vi) Interest Rate
Agreements and Currency Agreements designed solely to protect the Company or
any Restricted Subsidiary, as the case may be, against fluctuations in
interest rates or foreign currency exchange rates; and (vii) loans or
advances to officers or employees of the Company or any Restricted Subsidiary
that do not in the aggregate exceed $5 million (or, to the extent non-U.S.
dollar denominated, the U.S. Dollar Equivalent thereof) at any time
outstanding.
"Person" means an individual, a corporation, a partnership,
a limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Physical Notes" means Notes in the form of permanent
certificated notes in registered form, substantially in the form annexed
hereto as Exhibit A.
"Preferred Stock" means, with respect to any Person, any
and all shares, interests, participations or other equivalents (however
Designated, whether voting or nonvoting) of such Person's preferred or
preference stock, whether now outstanding or issued after the date of this
Indenture, including, without limitation, all series and classes of such
preferred or preference stock.
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"Principal" of a debt security, including the Notes, means
the principal amount due on the Stated Maturity as shown on such debt
security.
"Private Placement Legend" means the legend set forth on
the Initial Notes in the form set forth in the first paragraph of Section 2.02.
"Public Equity Offering" means (a) an underwritten primary
public offering of Common Stock of the Company pursuant to an effective
registration statement under the Securities Act or (b) pursuant to a
prospectus prepared in connection with the listing of shares of Common Stock
covered thereby on the London Stock Exchange.
A "Public Market" shall be deemed to exist if (i) a Public
Equity Offering has been consummated and (ii) at least 15% of the total
issued and outstanding Common Stock of the Company has been distributed by
means of (a) an effective registration statement under the Securities Act or
sales pursuant to Rule 144 under the Securities Act or (b) pursuant to a
prospectus prepared in connection with the listing of shares of Common Stock
covered thereby on the London Stock Exchange.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Redemption Date," when used with respect to any note to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Note to
be redeemed, means the price at which such Note is to be redeemed pursuant to
this Indenture.
"Refinancing" means any refinancing (whether by amendment,
renewal, extension, refunding or defeasance) of outstanding Indebtedness of
the Company and/or of any Restricted Subsidiary.
"Refinancing Indebtedness" means (i) Indebtedness of the
Company to the extent the proceeds thereof are used to refinance (whether by
amendment, renewal, extension, refunding or defeasance) Indebtedness of the
Company or any of the Restricted Subsidiaries, in each such event, Incurred
under the first paragraph of the covenant described under Section 4.03 or
clause (iv)(A) or (vi) of the second paragraph of Section 4.03 or otherwise
outstanding on the Issue Date and (ii) Indebted-
-24-
ness of any Restricted Subsidiary to the extent the proceeds thereof are used
to refinance (whether by amendment, renewal, extension, refunding or
defeasance) Indebtedness of a Restricted Subsidiary, in each such event,
incurred under the first paragraph of Section 4.03 or clause (iv)(B) of the
second paragraph of such covenant or otherwise outstanding on the Issue Date;
PROVIDED that for all purposes of this definition (a) the principal amount of
Refinancing Indebtedness incurred pursuant to this definition (or, if such
Refinancing Indebtedness provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of
the maturity thereof, the accreted value of such Indebtedness) shall not
exceed the principal amount or accreted value, as the case may be, of the
Indebtedness refinanced, plus the amount of any premium required to be paid
in connection with such refinancing pursuant to the terms of such
Indebtedness or the amount of any premium reasonably determined by the Board
of Directors as necessary to accomplish such refinancing by means of a tender
offer or privately negotiated purchase, plus the amount of reasonable
expenses in connection therewith, (b) such Refinancing Indebtedness (x) shall
have no scheduled principal payment prior to the final maturity of the
Indebtedness being refinanced and (y) shall have an Average Life equal to or
greater than the shorter of (1) the Average Life of the Indebtedness
refinanced or (2) the remaining Average Life of the Notes and (c) if the
Indebtedness to be refinanced is Subordinated Indebtedness, the Indebtedness
to be incurred pursuant to this definition shall also be Subordinated
Indebtedness of the person whose Indebtedness is to be refinanced on terms no
less favorable in any material respect to the Holders of the Notes than the
Indebtedness being refinanced.
"Registrar" has the meaning provided in Section 2.04.
"Registration Statement" means the Registration Statement
as defined and described in the Notes Registration Rights Agreement.
"Registration" has the meaning provided in Section 4.18.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the February 1 or August 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
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"Release Date" has the meaning provided in the Escrow
Agreement.
"Replacement Assets" means property or assets (other than
current assets) of a nature or type or that are used or useful in a business
(or in a company having property and assets of a nature or type, or engaged
in a business) similar or related to the nature or type of the property and
assets of, or the business of, the Company and the Restricted Subsidiaries
existing on the date such Replacement Assets are acquired (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and evidenced by a Board Resolution).
"Required Date" has the meaning provided in the Escrow
Agreement.
"Responsible Officer," when used with respect to the
Trustee, means the chairman or any vice chairman of the board of directors,
the chairman or any vice chairman of the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of
his or her knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning provided in
Section 4.04.
"Restricted Subsidiary" means any Subsidiary of the Company
other than an Unrestricted Subsidiary.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities" means the Units, including the Notes and the
Class B Interests.
"Securities Act" means the Securities Act of 1933, as amended.
"Security Register" has the meaning provided in Section 2.04.
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"Semi-Annual Accrual Date" has the meaning specified in the
definition of "Accreted Value."
"Senior Credit Facility" means any senior commercial term
loan and/or revolving credit facility (including any letter of credit
subfacility) and/or vendor financing facility entered into principally with
commercial banks and/or other financial institutions typically party to
commercial loan or vendor financing agreements.
"Separability Date" has the meaning provided in the
recitals to this Indenture.
"Shelf Registration Statement" means the Shelf Registration
Statement as defined in the Notes Registration Rights Agreement.
"Significant Subsidiary" means, at any date of
determination, any Restricted Subsidiary that, together with its
Subsidiaries, (i) for the most recent fiscal year of the Company, accounted
for more than 10% of the consolidated revenues of the Company and the
Restricted Subsidiaries or (ii) as of the end of such fiscal year, was the
owner of more than 10% of the consolidated assets of the Company and the
Restricted Subsidiaries, all as set forth on the most recently available
consolidated financial statements of the Company for such fiscal year.
"Specified Date" means any Redemption Date, any Payment
Date for an Offer to Purchase or any date on which the Notes first become due
and payable after an Event of Default.
"S&P" means Standard & Poor's Ratings Services and its
successors.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable
and (ii) with respect to any scheduled installment of principal of or
interest on any debt security, the date specified in such debt security as
the fixed date on which such installment is due and payable.
"Subordinated Indebtedness" means any Indebtedness of the
Company or any Restricted Subsidiary which is expressly subordinated in right
of payment in any manner to any other Indebtedness of the Company or such
Restricted Subsidiary, as the case may be.
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"Subsidiary" means, with respect to any Person, any
corporation, association or other business entity of which more than 50% of
the voting power of the outstanding Voting Stock is owned, directly or
indirectly, by such Person and one or more other Subsidiaries of such Person.
"Subsidiary Guarantor" means any issuer of a Subsidiary
Guaranty for so long as such Subsidiary Guaranty remains outstanding.
"Subsidiary Guaranty" means a guaranty of the Notes issued
pursuant to Section 4.07 and the Escrow Agreement.
"Target Market" means any of the Paris, Lyon, Marseilles,
Lille, London, or Berlin metropolitan markets.
"Taxes" has the meaning provided in Section 4.21.
"Tax Liabilities" has the meaning provided in Section 4.04.
"Telecommunications Business" means the development,
ownership or operation of one or more telephone, telecommunications or
information systems or the provision of telephony, telecommunication or
information services and any related, ancillary or complementary business.
"Temporary Cash Investment" means any of the following: (i)
direct obligations of the United States of America or any agency thereof or
the Netherlands, the United Kingdom, France, Germany or any other member of
the European Economic Community rated at least "A" by S&P or "A" by Moody's
("Government Securities") or obligations guaranteed by the United States of
America or any agency thereof or the Netherlands, the United Kingdom, France,
Germany or any other member of the European Economic Community rated at least
"A" by S&P or "A" by Moody's with a term of not more than one year; PROVIDED
that money borrowed and set aside at the time of Incurrence of Indebtedness
in order to prefund the payment of interest on such Indebtedness may be
invested in Government Securities with a term in excess of one year but in no
event with a term in excess of the period for which interest has been
prefunded with respect to such Indebtedness, (ii) time deposit accounts,
certificates of deposit and money market deposits maturing within one year of
the date of acquisition thereof issued by a bank or trust company which is
organized under the laws of the United States of America or any state
thereof, the Netherlands, the United Kingdom, France, Germany or any other
member of the
-28-
European Economic Community and which bank or trust company has capital,
surplus and undivided profits aggregating in excess of $250 million (or the
foreign currency equivalent thereof) and has outstanding debt which is rated
"A" by S&P or "A" by Moody's (iii) repurchase obligations with a term of not
more than 30 days for underlying securities of the types described in clause
(i) above entered into with a bank meeting the qualifications described in
clause (ii) above, (iv) commercial paper, maturing not more than one year
after the date of acquisition, issued by a corporation (other than an
Affiliate of the Company) organized and in existence under the laws of the
United States of America or any state thereof, the Netherlands, the United
Kingdom, France, Germany or any other member of the European Economic
Community, with a rating at the time as of which any investment therein is
made of "P-1" (or higher) according to Moody's or "A-l" (or higher) according
to S&P, and (v) securities with maturities of six months or less from the
date of acquisition issued or fully and unconditionally guaranteed by any
state, commonwealth or territory of the United States of America, the
Netherlands, the United Kingdom, France, Germany or any other member of the
European Economic Community, or by any political subdivision or taxing
authority thereof, and rated at least "A" by S&P or "A" by Moody's.
"TIA" or "Trust Indenture Act" means the Trust Indenture
Act of 1939, as amended (15 U.S. Code Sections 77aaa- 77bbb), as in effect on
the date this Indenture was executed, except as provided in Section 9.06.
"Total Incremental Equity" means, at any time of
determination, the sum of, without duplication, (i) the aggregate Net Cash
Proceeds and fair market value of property (determined as of the date of
receipt of such property) received by the Company from capital contributions
in respect of existing Capital Stock (other than Disqualified Stock) or the
issuance or sale of Capital Stock (other than Disqualified Stock but
including Capital Stock issued upon the conversion of convertible
Indebtedness or from the exercise of options, warrants or rights to purchase
Capital Stock (other than Disqualified Stock)) subsequent to the Issue Date,
other than to a Subsidiary of the Company, PLUS (ii) the aggregate cash
proceeds received by the Company or any Restricted Subsidiary from the sale,
disposition or repayment (in whole or in part) of any Investment that is or
was made after the Issue Date and that constitutes a Restricted Payment that
has been deducted from Total Incremental Equity pursuant to clause (iii)
below in an amount equal to the lesser of (a) the return of capital with
respect to the applicable portion of such Investment and (b) the cost
-29-
of the applicable portion of such Investment, in either case, less the cost
of the disposition of such Investment, MINUS (iii) the aggregate amount of
all Restricted Payments declared or made on and after the Issue Date (other
than a Restricted Payment made pursuant to clause (ii) of the second
paragraph of Section 4.04).
"Trade Payables" means, with respect to any Person, any
accounts payable or any other indebtedness or monetary obligation to trade
creditors created, assumed or Guaranteed by such Person or any of its
Subsidiaries arising in the ordinary course of business in connection with
the acquisition of goods or services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Company or any of the Restricted Subsidiaries, the
date such Indebtedness is to be Incurred and, with respect to any Restricted
Payment, the date such Restricted Payment is to be made.
"Trustee" means the party named as such in the first
paragraph of this Indenture until a successor replaces it in accordance with
the provisions of Article Seven of this Indenture and thereafter means such
successor.
"Unit Agent" has the meaning provided in the Escrow
Agreement.
"Units" has the meaning provided in the recitals to this
Indenture.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company that at the time of determination shall be designated an Unrestricted
Subsidiary by the Board of Directors in the manner provided below; and (ii)
any Subsidiary of an Unrestricted Subsidiary. The Board of Directors may
designate any Restricted Subsidiary (including any newly acquired or newly
formed Subsidiary of the Company) to be an Unrestricted Subsidiary unless
such Subsidiary owns any Capital Stock of, or owns or holds any Lien on any
property of, the Company or any Restricted Subsidiary; PROVIDED that (A) any
Guaranty by the Company or any Restricted Subsidiary of any Indebtedness of
the Subsidiary being so designated shall be deemed an "Incurrence" of such
Indebtedness and an "Investment" by the Company or such Restricted Subsidiary
(or both, if applicable) at the time of such designation; (B) either (I) the
Subsidiary to be so designated has total assets of $1,000 (or, to the extent
non-U.S. dollar denominated, the U.S. Dollar Equivalent thereof) or less
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or (II) if such Subsidiary has assets greater than $1,000 (or, to the extent
non-U.S. dollar denominated, the U.S. Dollar Equivalent thereof), such
designation would be permitted under Section 4.04; (C) if applicable, the
Incurrence of Indebtedness and the Investment referred to in clause (A) of
this proviso would be permitted under Section 4.03 and Section 4.04; and (D)
except in the case of an Investment made pursuant to clause (vi) of the
second paragraph of Section 4.04 immediately after giving effect to such
designation, the Company would be able to Incur $1.00 of Indebtedness under
Section 4.03. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary; PROVIDED FURTHER that (i) no
Default shall have occurred and be continuing at the time of or after giving
effect to such designation and (ii) all Liens and Indebtedness of such
Unrestricted Subsidiary outstanding immediately after such designation would,
if Incurred at such time, have been permitted to be Incurred (and shall be
deemed to have been Incurred) for all purposes of this Indenture. Any such
designation by the Board of Directors shall be evidenced to the Trustee by
promptly filing with the Trustee a copy of the Board Resolution giving effect
to such designation and an Officers' Certificate certifying that such
designation complied with the foregoing provisions.
"U.S. Dollar Equivalent" means, with respect to any
monetary amount in a currency other than U.S. dollars, at any time for the
determination thereof, the amount of U.S. dollars obtained by converting such
foreign currency involved in such computation into U.S. dollars at the spot
rate for the purchase of U.S. dollars with the applicable foreign currency as
quoted by Reuters at approximately 11:00 a.m. (New York time) on the date two
Business Days prior to such determination.
"U.S. Global Note" has the meaning provided in Section 2.01.
"U.S. Government Obligations" means securities that are (i)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (ii) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer
thereof at any time prior to the Stated Maturity of the Notes, and shall also
include a depository receipt issued by a bank or trust company as custodian
with respect to any such U.S. Government Obligation or a spe-
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cific payment of interest on or principal of any such U.S. Government
Obligation held by such custodian for the account of the holder of a
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 U.S. Government Obligation or the specific payment of interest
on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other voting members of the governing body
of such Person.
"Wholly Owned" means, with respect to any Subsidiary of any
Person, the ownership of all of the outstanding Capital Stock of such
Subsidiary (other than any director's qualifying shares or Investments by
foreign nationals mandated by applicable law) by such Person or one or more
Wholly Owned Subsidiaries of such Person.
SECTION 1.02. INCORPORATION BY REFERENCE OF TRUST INDENTURE
ACT. 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 notes" means the Notes;
"indenture note holder" means a Holder or a Noteholder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee" means the
Trustee; and
"obligor" on the indenture securities means the Company or
any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined
by the TIA, defined by TIA reference to another statute or defined by a rule
of the Commission and not otherwise defined herein have the meanings assigned
to them therein.
SECTION 1.03. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
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(i) a term has the meaning assigned to it;
(ii) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(iii) "or" is not exclusive;
(iv) words in the singular include the plural, and words in
the plural include the singular;
(v) provisions apply to successive events and
transactions;
(vi) "herein," "hereof" and other words of similar import
refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision;
(vii) all ratios and computations based on GAAP contained in
this Indenture shall be computed in accordance with the definition of
GAAP set forth in Section 1.01; and
(viii) all references to Sections or Articles refer to Sections
or Articles of this Indenture unless otherwise indicated.
ARTICLE TWO
THE NOTES
SECTION 2.01. FORM AND DATING. The Notes and the Trustee's
certificate of authentication thereof shall be substantially in the form
annexed hereto as Exhibit A with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture. The Notes may have notations, legends or endorsements required by
law, stock exchange agreements to which the Company is subject or usage. The
Company shall approve the form of the Notes and any notation, legend or
endorsement on the Notes. Each Note shall be dated the date of its
authentication.
The terms and provisions contained in the forms of the
Notes annexed hereto as Exhibit A shall constitute, and are hereby expressly
made, a part of this Indenture. The terms and provisions contained in the
form of Escrow Guaranty shall constitute and are expressly made a part of
this Indenture. To the extent applicable, the Company, the Escrow Guarantor
and
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the Trustee, by their execution and delivery of this Indenture, expressly
agree to such terms and provisions and to be bound thereby.
Initial Notes offered and sold in reliance on Rule 144A
shall be issued initially in the form of one or more permanent global Notes
in registered form, substantially in the form set forth in Exhibit A
(collectively, the "U.S. Global Notes"), deposited with the Trustee, as
custodian for the Depositary, duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate principal amount of the
U.S. Global Notes may from time to time be increased or decreased by
adjustments made on the records of the Trustee, as custodian for the
Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in offshore transactions in
reliance on Regulation S shall be issued initially in the form of one or more
permanent Global Notes in registered form substantially in the form set forth
in Exhibit A (collectively, the "Offshore Global Notes") deposited with the
Trustee, as custodian for the Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of the Offshore Global Notes may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary or its nominee, as hereinafter provided.
Initial Notes offered and sold in reliance on Regulation D
to Institutional Accredited Investors under the Securities Act shall be
issued in the form of one or more Global Notes in registered form in
substantially the form set forth in Exhibit A (the "IAI Global Notes"),
deposited with the Trustee, as custodian for the Depositary, duly executed by
the Company and authenticated by the Trustee, as hereinafter provided. The
aggregate principal amount of the IAI Global Notes may from time to time be
increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary or its nominee, as hereinafter provided.
Upon consummation of the Registration, the Exchange Notes
shall be issued in the form of Global Notes, substantially in the form
annexed hereto as Exhibit A.
The definitive Notes shall be typed, printed, lithographed
or engraved or produced by any combination of these methods or may be
produced in any other manner permitted by the rules of any securities
exchange on which the Notes may be
-34-
listed, all as determined by the Officers executing such Notes, as evidenced
by their execution of such Notes.
SECTION 2.02. RESTRICTIVE LEGENDS. Unless and until an
Initial Note is exchanged for an Exchange Note or sold in connection with an
effective Registration pursuant to the Notes Registration Rights Agreement,
the Initial Notes shall bear the following legend on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED,
PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH
REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF
THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS THAT (A) IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) OR (B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS
DEFINED IN RULE 501(a)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S. PERSON
AND IS ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO
REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH
IS TWO YEARS (OR SUCH SHORTER PERIOD AS MAY BE PRESCRIBED BY RULE
144(K) (OR ANY SUCCESSOR PROVISION THEREOF) UNDER THE SECURITIES ACT)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY OR ANY
PREDECESSOR OF THIS SECURITY AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO
RULE ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, TO A PERSON IT REASONABLY BELIEVES
IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM
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NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, PURSUANT TO RULE 904 OF REGULATION S, (E) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT IS ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED
INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF THE SECURITIES
OF $250,000, FOR INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR
OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE
SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, (3) AGREES THAT IT
WILL DELIVER TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.
The Notes (including the Initial Notes and the Exchange
Notes) shall bear the following legend on the face thereof:
THIS SECURITY MAY BE OFFERED IN CERTAIN COUNTRIES EXCLUDING THE
NETHERLANDS.
THIS SECURITY MAY ONLY BE ISSUED IN MINIMUM DENOMINATIONS OF $100,000
PRINCIPAL AMOUNT AT MATURITY AND IN EXCESS OF $100,000 PRINCIPAL AMOUNT
AT MATURITY IN INCREMENTS OF $1,000 PRINCIPAL AMOUNT AT MATURITY.
Each Global Note, whether or not an Exchange Note, shall also
bear the following legend on the face thereof:
THIS SECURITY IS A GLOBAL CERTIFICATE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF
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THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE
ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF OR
SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.08 OF THE INDENTURE.
SECTION 2.03. EXECUTION, AUTHENTICATION AND DENOMINATIONS.
The Notes shall be executed by the managing director or two authorized
signatories (pursuant to a power of attorney or other similar instrument) of
the Company. The signature of any of such officers (or authorized
signatories) on the Notes shall be by manual signature in the name and on
behalf of the Company.
If an officer whose signature is on a Note no longer holds
that office at the time the Trustee or authenticating agent authenticates the
Note, the Note shall be valid nevertheless.
A Note shall not be valid until the Trustee or
authenticating agent manually signs the certificate of authentication on the
Note. The signature shall be conclusive evidence that the Note has been
authenticated under this Indenture.
The Trustee or an authenticating agent shall, upon receipt
of a Company Order, authenticate (i) Initial Notes for original issue in the
aggregate principal amount at maturity not to exceed $147,500,000 and (ii)
Exchange Notes from time to
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time only in exchange for a like principal amount at maturity of Initial
Notes in accordance with the Notes Registration Rights Agreement; PROVIDED
that the Trustee shall be entitled to receive an officers' certificate (or
other authorized signatories) and an Opinion of Counsel of the Company in
connection with such authentication of Notes. Such Company Order shall
specify the amount of Notes to be authenticated and the date on which the
original issue of Notes is to be authenticated. The aggregate principal
amount at maturity of Notes outstanding at any time may not exceed
$147,500,000, except as set forth in Section 2.09.
The Trustee may appoint an authenticating agent 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 authenticating agent. An
authenticating agent has the same rights as an Agent to deal with the Company
or an Affiliate of the Company.
The Notes shall be issuable only in registered form without
coupons and only in minimum denominations of $100,000 in principal amount at
maturity and any integral multiple of $1,000 in excess thereof.
SECTION 2.04. REGISTRAR AND PAYING AGENT. The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the "Registrar"), an office or agency where Notes
may be presented for payment (the "Paying Agent") and an office or agency
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served, which shall be in the Borough of Manhattan, The
City of New York. The Company shall cause the Registrar to keep a register of
the Notes and of their transfer and exchange (the "Security Register"). The
Company may have one or more co-Registrars and one or more additional Paying
Agents.
The Company shall enter into an appropriate agency
agreement with any Agent not a party to this Indenture. The agreement shall
implement the provisions of this Indenture that relate to such Agent. The
Company shall give prompt written notice to the Trustee of the name and
address of any such Agent and any change in the address of such Agent. If the
Company fails to maintain a Registrar, Paying Agent and/or agent for service
of notices and demands, the Trustee shall act as such Registrar, Paying Agent
and/or agent for service of notices and demands. The Company may remove any
Agent upon written notice
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to such Agent and the Trustee; provided that no such removal shall become
effective until (i) the acceptance of an appointment by a successor Agent to
such Agent as evidenced by an appropriate agency agreement entered into by
the Company and such successor Agent and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as such Agent until
the appointment of a successor Agent in accordance with clause (i) of this
proviso. The Company, any Subsidiary of the Company, or any Affiliate of any
of them may act as Paying Agent, Registrar or co-Registrar, and/or agent for
service of notice and demands.
The Company initially appoints the Trustee as Registrar,
Paying Agent, authenticating Agent and agent for service of notice and
demands. If, at any time, the Trustee is not the Registrar, the Registrar
shall make available to the Trustee on or before each Interest Payment Date
and at such other times as the Trustee may reasonably request, the names and
addresses of the Holders as they appear in the Security Register.
SECTION 2.05. PAYING AGENT TO HOLD MONEY IN TRUST. Not
later than each due date of the principal, premium, if any, and interest on
any Notes, the Company shall deposit with the Paying Agent money in
immediately available funds sufficient to pay such principal, premium, if
any, and interest so becoming due. The Company shall require each Paying
Agent other than the Trustee to agree in writing that such Paying Agent shall
hold in trust for the benefit of the Holders or the Trustee all money held by
the Paying Agent for the payment of principal of, premium, if any, and
interest on the Notes (whether such money has been paid to it by the Company
or any other obligor on the Notes), and such Paying Agent shall promptly
notify the Trustee of any default by the Company (or any other obligor on the
Notes) in making any such payment. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and account for any
funds disbursed, and the Trustee may at any time during the continuance of
any payment default, upon written request to a Paying Agent, require such
Paying Agent to pay all money held by it to the Trustee and to account for
any funds disbursed. Upon doing so, the Paying Agent shall have no further
liability for the money so paid over to the Trustee. If the Company or any
Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if
any, or interest on the Notes, segregate and hold in a separate trust fund
for the benefit of the Holders a sum of money sufficient to pay such
principal, premium, if any, or interest so becoming due until such sum of
money shall be paid to such Holders or other-
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wise disposed of as provided in this Indenture, and will promptly notify the
Trustee of its action or failure to act.
SECTION 2.06. TRANSFER AND EXCHANGE. The Notes are issuable
only in registered form. The Notes shall initially be issued as part of an
issue of the Units, each Unit consisting of one $1,000 principal amount at
maturity Note and 10 Class B Interests. Prior to the Separability Date, the
Notes may not be transferred or exchanged separately from, but may be
transferred or exchanged only together with, the Class B Interests issued in
connection with the Notes. A Holder may transfer a Note only by written
application to the Registrar stating the name of the proposed transferee and
otherwise complying with the terms of this Indenture. No such transfer shall
be effected until, and such transferee shall succeed to the rights of a
Holder only upon, final acceptance and registration of the transfer by the
Registrar in the Security Register. Prior to the registration of any transfer
by a Holder as provided herein, the Company, the Trustee, and any agent of
the Company shall treat the person in whose name the Note is registered as
the owner thereof for all purposes whether or not the Note shall be overdue,
and neither the Company, the Trustee, nor any such agent shall be affected by
notice to the contrary. Furthermore, any Holder of a Global Note shall, by
acceptance of such Global Note, agree that transfers of beneficial interests
in such Global Note may be effected only by the Holder of such Global Note
(or its agent) and that ownership of a beneficial interest in the Note shall
be required to be reflected in a book entry.
Subject to the provisions of 2.07 and 2.08, when Notes are
presented to the Registrar or a co-Registrar with a request to register the
transfer or to exchange them for an equal principal amount of Notes of other
authorized denominations (including an exchange of Notes for Exchange Notes),
the Registrar shall register the transfer or make the exchange as requested
if its requirements for such transactions are met; provided that no exchanges
of Initial Notes for Exchange Notes shall occur until a Registration
Statement shall have been declared effective by the Commission and that any
Initial Notes that are exchanged for Exchange Notes shall be canceled by the
Trustee. To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Notes at the Registrar's
request. No service charge shall be made for any registration of transfer or
exchange or redemption of the Notes, 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
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transfer taxes or other similar governmental charge payable upon exchanges
pursuant to Section 2.11, 3.08 or 9.04).
The Registrar shall not be required (i) to issue, register
the transfer of or exchange any Note during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption
of Notes selected for redemption under Section 3.03 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of
or exchange any Note so selected for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
SECTION 2.07. BOOK-ENTRY PROVISIONS FOR GLOBAL NOTES. (a)
The Global Notes shall (i) be registered in the name of the Depositary for
such Global Notes or the nominee of such Depositary, (ii) be delivered to the
Trustee as custodian for such Depositary and (iii) prior to the Registration
bear legends as set forth in the second paragraph of Section 2.02.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to any
Global Note held on their behalf by the Depositary, or the Trustee as its
custodian, or under the Global Note, and the Depositary may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of such Global Note or all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company, the
Trustee or any agent of the Company or the Trustee, from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or impair, as between the Depositary and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
holder of any Note.
(b) Transfers of a Global Note shall be limited to
transfers of such Global Note in whole, but not in part, to the Depositary,
its successors or their respective nominees. Interests of beneficial owners
in a Global Note may be transferred in accordance with the rules and
procedures of the Depositary and the provisions of Section 2.08. In addition,
Physical Notes shall be transferred to all beneficial owners in exchange for
their beneficial interests in Global Notes only if (i) the Depositary
notifies the Company that it is unwilling or unable to continue as Depositary
for the Global Notes and a successor depositary is not appointed by the
Company within 90 days of such notice or (ii) an Event of Default has
occurred
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and is continuing and the Registrar has received a request from the
Depositary to issue Physical Notes.
(c) Any beneficial interest in one of the Global Notes that
is transferred to a person who takes delivery in the form of an interest in
another Global Note will, upon transfer, cease to be an interest in such
Global Note and become an interest in the other Global Note and, accordingly,
will thereafter be subject to all transfer restrictions, if any, and other
procedures applicable to beneficial interests in such other Global Note for
as long as it remains such an interest.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b) of this Section, the
Global Notes shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall
authenticate and make available for delivery, to each beneficial owner
identified by the Depositary in exchange for its beneficial interest in the
Global Notes an equal aggregate principal amount of Physical Notes of
authorized denominations.
(e) Any Physical Note delivered in exchange for an interest
in a Global Note pursuant to paragraph (b) of this Section shall, except as
otherwise provided by paragraph (f) of Section 2.08, bear the Private
Placement Legend and the Netherlands Legend.
(f) The registered holder of a Global Note may grant
proxies and otherwise authorize any person, including Agent Members and
persons that may hold interests through Agent Members, to take any action
which a Holder is entitled to take under this Indenture or the Notes.
SECTION 2.08. REGISTRATION OF TRANSFERS AND EXCHANGES.
(a) TRANSFER AND EXCHANGE OF PHYSICAL NOTES. When
Physical Notes are presented to the Registrar with a request:
(i) to register the transfer of the Notes; or
(ii) to exchange such Physical Notes for an equal principal
amount of Physical Notes of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
the requirements under this Indenture as set
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forth in this Section 2.08 for such transactions are met; PROVIDED, HOWEVER,
that the Physical Notes presented or surrendered for registration of transfer
or exchange:
(I) shall be duly endorsed or accompanied by a written
instrument of transfer in form satisfactory to the Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(II) in the case of Initial Notes, such Physical Notes shall
be accompanied, in the sole discretion of the Company, by the following
additional information and documents, as applicable:
(A) if such Physical Note is being delivered to the
Registrar by a Holder for registration in the name of
such Holder, without transfer, a certification from
such Holder to that effect (substantially in the form
of Exhibit B hereto); or
(B) if such Physical Note is being transferred to a QIB
in accordance with Rule 144A, a certification to that
effect (substantially in the form of Exhibit B
hereto); or
(C) if such Physical Note is being transferred to an
Institutional Accredited Investor, delivery of a
certification to that effect (substantially in the
form of Exhibit B hereto) and a transferee
certificate for Institutional Accredited Investors
substantially in the form of Exhibit C hereto and an
Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in
compliance with the Securities Act; or
(D) if such Physical Note is being transferred in
reliance on Regulation S, delivery of a certification
to that effect (substantially in the form of Exhibit
B hereto) and a transferor certificate for Regulation
S transfers substantially in the form of Exhibit D
hereto and an Opinion of Counsel reasonably
satisfactory to the Company to the effect that such
transfer is in compliance with the Securities Act; or
(E) if such Physical Note is being transferred in
reliance on Rule 144 under the Securities Act,
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delivery of a certification to that effect
(substantially in the form of Exhibit B hereto) and
an Opinion of Counsel reasonably satisfactory to the
Company to the effect that such transfer is in
compliance with the Securities Act; or
(F) if such Physical Note is being transferred in
reliance on another exemption from the registration
requirements of the Securities Act, a certification
to that effect (substantially in the form of Exhibit
B hereto) and an Opinion of Counsel reasonably
acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act.
(b) RESTRICTIONS ON TRANSFER OF A PHYSICAL NOTES FOR A
BENEFICIAL INTEREST IN A GLOBAL NOTE. A Physical Note may not be exchanged
for a beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar of a Physical
Note, duly endorsed or accompanied by appropriate instruments of transfer, in
form satisfactory to the Registrar, together with:
(A) in the case of Initial Notes, certification,
substantially in the form of Exhibit B hereto, that
such Physical Note is being transferred (I) to a QIB,
(II) to an Institutional Accredited Investor or (III)
in an offshore transaction in reliance on Regulation
S and, with respect to (II) or (III), an Opinion of
Counsel reasonably acceptable to the Company to the
effect that such transfer is in compliance with the
Securities Act; and
(B) written instructions directing the Registrar to make,
or to direct the Depository to make, an endorsement
on the applicable Global Note to reflect an increase
in the aggregate amount of the Notes represented by
the Global Note,
then the Registrar shall cancel such Physical Note and cause, or direct the
Depositary to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the principal
amount at maturity of Notes represented by the applicable Global Note to be
increased accordingly. If no Global Note representing Notes held by QIBs,
Institutional Accredited Investors or Persons acquiring Notes in offshore
transactions in reliance on Regulation S, as
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the case may be, is then outstanding, the Company shall issue and the Trustee
shall, upon written instructions from the Company in accordance with Section
2.03, authenticate such a Global Note in the appropriate principal amount at
maturity.
(c) TRANSFER AND EXCHANGE OF GLOBAL NOTES. The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the
Depositary therefor. Upon receipt by the Registrar of written instructions,
or such other instruction as is customary for the Depositary, from the
Depositary or its nominee, requesting the registration of transfer of an
interest in a U.S. Global Note, an IAI Global Note or Offshore Global Note,
as the case may be, to another type of Global Note, (or, if the applicable
type of Global Note required to represent the interest as requested to be
transferred is not then outstanding, only the Global Note representing the
interest being transferred), the Registrar shall cancel such Global Notes (or
Global Note) and the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.03, authenticate
new Global Notes of the types so cancelled (or the type so cancelled and
applicable type required to represent the interest as requested to be
transferred) reflecting the applicable increase and decrease of the principal
amount at maturity of Notes represented by such types of Global Notes, giving
effect to such transfer. If the applicable type of Global Note required to
represent the interest as requested to be transferred is not outstanding at
the time of such request, the Company shall issue and the Trustee shall, upon
written instructions from the Company in accordance with Section 2.03,
authenticate a new Global Note of such type in principal amount at maturity
equal to the principal amount at maturity of the interest requested to be
transferred.
(d) RESTRICTIONS ON TRANSFER OF A BENEFICIAL INTEREST IN A
GLOBAL NOTE TO ANOTHER GLOBAL NOTE. A beneficial interest in one Global Note
may not be exchanged for a beneficial interest in another Global Note except
upon satisfaction of the requirements set forth below. Upon receipt by the
Registrar of written instructions, or such other instructions as are
customary for the Depositary in accordance with the customary procedures at
the Depositary, from or on behalf of any Person having a beneficial interest
in a Global Note and upon receipt by the Trustee of a written order or such
other form of instructions as is customary for the Depositary or the Person
designated by the Depositary as having such a beneficial interest containing
registration instructions and, in the case of any such transfer
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or exchange of a beneficial interest in Initial Notes, the following
additional information and documents: a certification, substantially in the
form of Exhibit B hereto, that such transfer is (I) to a QIB, (II) in
reliance on Regulation S or (III) to an Institutional Accredited Investor
and, with respect to (II) and (III), at the option of the Company, an Opinion
of Counsel reasonably acceptable to the Company to the effect that such
transfer is in compliance with the Securities Act; then the Registrar shall
reflect the applicable increase and decrease of the principal amount of Notes
represented by such types of Global Notes, giving effect to such transfer in
accordance with its customary procedures and the procedures of the
Depositary. If the applicable type of Global Note required to represent the
interest as requested to be transferred is not outstanding at the time of
such request, the Company shall issue and the Trustee shall, upon written
instructions from the Company in accordance with Section 2.03, authenticate a
new Global Note of such type in principal amount equal to the principal
amount at maturity of the interest requested to be transferred.
(e) RESTRICTIONS ON TRANSFER AND EXCHANGE OF GLOBAL NOTES.
Notwithstanding any other provisions of this Indenture, a Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(f) PRIVATE PLACEMENT LEGEND. Upon the transfer, exchange
or replacement of Notes not bearing the Private Placement Legend, the
Registrar shall deliver Notes that do not bear the Private Placement Legend.
Upon the transfer, exchange or replacement of Notes bearing the Private
Placement Legend, the Registrar, shall deliver only Notes that bear the
Private Placement Legend unless either (i) there is delivered to the
Registrar an Opinion of Counsel reasonably satisfactory to the Company and
the Trustee to the effect that neither such legend nor the related
restrictions on transfer are required in order to maintain compliance with
the provisions of the Securities Act or (ii) such Note has been sold pursuant
to an effective registration statement under the Securities Act (including
pursuant to a Registration).
(g) GENERAL. By its acceptance of any Note bearing the
Private Placement Legend, each Holder of such a Note acknowledges the
restrictions on transfer of such Note set forth in this Indenture, the
Private Placement Legend and the Nether-
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lands Legend and agrees that it will transfer such Note only as provided in
this Indenture. The Registrar shall not register a transfer of any Note
unless such transfer complies with the restrictions on transfer of such Note
set forth in this Indenture. In connection with any transfer of Notes, each
Holder agrees by its acceptance of the Notes to furnish the Registrar or the
Company such certifications, legal opinions or other information as either of
them may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or a transaction not subject to, the
registration requirements of the Securities Act; provided that the Registrar
shall not be required to determine (but may rely on a determination made by
the Company with respect to) the sufficiency of any such certifications,
legal opinions or other information.
The Registrar shall retain copies of all letters, notices
and other written communications received pursuant to Section 2.07 or this
Section 2.08. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable
time upon the giving of reasonable written notice to the Registrar.
SECTION 2.09. REPLACEMENT NOTES. If a mutilated Note is
surrendered to the Trustee or if the Holder claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note of like tenor and amount and bearing a
number not contemporaneously outstanding; provided that the requirements of
this Section 2.09 are met. If required by the Trustee or the Company, an
indemnity bond must be furnished that is sufficient in the judgment of both
the Trustee and the Company to protect the Company, the Trustee or any Agent
from any loss that any of them may suffer if a Note is replaced. The Company
may charge such Holder for its expenses and the expenses of the Trustee in
replacing a Note. In case any such mutilated, lost, destroyed or wrongfully
taken Note has become or is about to become due and payable, the Company in
its discretion may pay such Note instead of issuing a new Note in replacement
thereof.
Every replacement Note is an additional obligation of the
Company and shall be entitled to the benefits of this Indenture.
SECTION 2.10. OUTSTANDING NOTES. Notes outstanding at any
time are all Notes that have been authenticated by the Trustee except for
those cancelled by it, those delivered to it for cancellation and those
described in this Section 2.10 as not outstanding.
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If a Note is replaced pursuant to Section 2.09, it ceases
to be outstanding unless and until the Trustee and the Company receive proof
satisfactory to them that the replaced Note is held by a bona fide purchaser.
If the Paying Agent (other than the Company or an Affiliate
of the Company) holds on the maturity date money sufficient to pay Notes
payable on that date, then on and after that date such Notes cease to be
outstanding and interest on them shall cease to accrue.
A Note does not cease to be outstanding because the Company
or one of its Affiliates holds such Note, provided, however, that, in
determining whether the Holders of the requisite principal amount of the
outstanding Notes have given any request, demand, authorization, direction,
notice, consent or waiver hereunder, Notes owned by the Company or any other
obligor upon the Notes or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver,
only Notes which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Notes so owned which have been pledged in good
faith may be regarded as outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Notes and that the pledgee is not the Company or any other obligor upon
the Notes or any Affiliate of the Company or of such other obligor.
SECTION 2.11. TEMPORARY NOTES. Until definitive Notes are
ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the
form of definitive Notes but may have insertions, substitutions, omissions
and other variations determined to be appropriate by the officers executing
the temporary Notes, as evidenced by their execution of such temporary Notes.
If temporary Notes are issued, the Company will cause definitive Notes to be
prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 4.02, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes
the Company shall execute and the Trustee shall authenticate and make
available for delivery in exchange therefor a like principal amount of
definitive Notes of authorized denominations. Until so exchanged, the
temporary
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Notes shall be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.12. CANCELLATION. The Company at any time may
deliver to the Trustee for cancellation any Notes previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee for cancellation any Notes
previously authenticated hereunder which the Company has not issued and sold.
The Registrar and the Paying Agent shall forward to the Trustee any Notes
surrendered to them for transfer, exchange or payment. The Trustee shall
cancel all Notes surrendered for transfer, exchange, payment or cancellation
in accordance with its normal procedure.
SECTION 2.13. CUSIP NUMBERS. The Company in issuing the
Notes may use "CUSIP," "CINS" or "ISIN" numbers (if then generally in use),
and the Trustee shall use CUSIP, CINS or ISIN numbers, as the case may be, in
notices of redemption or exchange as a convenience to Holders; provided that
any such notice shall 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 or exchange 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 or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP,"
"CINS" or "ISIN" numbers.
SECTION 2.14. DEFAULTED INTEREST. If the Company defaults
on a payment of interest on the Notes, it shall pay, or shall deposit with
the Paying Agent money in immediately available funds sufficient to pay the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect
to the payment of any defaulted interest, shall mean the 15th day next
preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
the subsequent special record date, the Company shall mail to each Holder and
to a Responsible Officer of the Trustee a notice that states the subsequent
special record date, the payment date and the amount of defaulted interest to
be paid.
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ARTICLE THREE
REDEMPTION
SECTION 3.01. RIGHT OF REDEMPTION. (a) The Notes may be
redeemed, at the Company's option, in whole or in part, at any time or from
time to time, on or after February 15, 2004 and prior to maturity, upon not
less than 30 nor more than 60 days prior notice mailed by first class mail to
each Holder's last address as it appears in the Security Register, at the
Redemption Prices (expressed in percentages of principal amount at maturity)
set forth below, plus accrued an unpaid interest, if any, to the Redemption
Date (subject to the right of Holders of record on the relevant Regular
Record Date that is on or prior to the Redemption Date to receive interest
due on an Interest Payment Date), if redeemed during the 12-month period
commencing February 15 of the years set forth below:
Year Redemption Price
---- ----------------
2004 107.000%
2005 104.667%
2006 102.333%
2007 and thereafter 100.0000%
(b) In addition, upon not less than 30 nor more than 60
days' prior notice mailed by first class mail to each Holder's last address
as it appears in the Security Register, at any time prior to February 15,
2002, the Company may redeem up to 33 1/3% of the principal amount at
maturity of the Notes originally issued with the proceeds of one or more
Public Equity offerings following which there is a Public Market, at the
Company's option, at any time or from time to time in part, at a Redemption
Price (expressed as a percentage of Accreted Value on the Redemption Date) of
114%; PROVIDED that (i) at least $98,334,000 aggregate principal amount at
maturity of Notes remains outstanding after each such redemption and (ii) the
Company mails the notice of redemption required by this paragraph (b) of this
Section 3.01 within 60 days of the receipt of the Public Equity Offering
proceeds to be applied.
(c) If as a result of any change in or amendment to any
laws or regulations or official interpretations or applications thereof which
is announced and becomes effective after the Issue Date, in making any
payment due or to become due under the Notes or this Indenture, the Company
is or would be required on the next succeeding Interest Payment Date to pay
any Additional Amounts and the payment of such Additional Amounts
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cannot be avoided by the use of any reasonable measures available to the
Company (which shall not include any adverse modification of the terms of
this Indenture or the Notes), the Notes may be redeemed at the option of the
Company, in whole but not in part, upon not less than 30 nor more than 60
days' prior notice mailed by first class mail to each Holder's last address
as it appears in the Security Register, at any time prior to the second
succeeding Interest Payment Date following such change or amendment at a
Redemption Price equal to 100% of the Accreted Value thereof, plus accrued
and unpaid interest, if any, thereon to the Redemption Date; PROVIDED the
Company will also pay to Holders of the Notes on the Redemption Date any
Additional Amounts which are then payable.
SECTION 3.02. NOTICES TO TRUSTEE. If the Company elects to
redeem Notes pursuant to Section 3.01(a), Section 3.01(b) or Section 3.01(c),
it shall notify the Trustee in writing of the Redemption Date and the
principal amount of Notes to be redeemed.
The Company shall give each notice provided for in this
Section 3.02 in an Officers' Certificate at least 45 days before the
Redemption Date (unless a shorter period shall be satisfactory to the
Trustee).
SECTION 3.03. SELECTION OF NOTES TO BE REDEEMED. In the
case of any partial redemption pursuant to Section 3.01(a) or Section
3.01(b), selection of the Notes for redemption will be made by the Trustee 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
listed on a national securities exchange, PRO RATA, by lot or by such other
method as the Trustee in its sole discretion shall deem to be fair and
appropriate; PROVIDED that any partial redemption pursuant to Section 3.01(b)
shall only be selected PRO RATA as among the Holders; PROVIDED FURTHER that
no Note of $1,000, in principal amount at maturity or less shall be redeemed
in part; PROVIDED FURTHER that the principal amount at maturity of any Notes
left outstanding will not be less than $100,000. The Trustee shall make the
selection from the Notes outstanding and not previously called for
redemption. Provisions of this Indenture that apply to Notes called for
redemption also apply to portions of Notes called for redemption. The Trustee
shall notify the Company and the Registrar promptly in writing of the Notes
or portions of Notes to be called for redemption.
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SECTION 3.04. NOTICE OF REDEMPTION. With respect to any
redemption of Notes pursuant to Section 3.01(a), Section 3.01(b) or Section
3.01(c), at least 30 days but not more than 60 days before a Redemption Date,
the Company shall mail a notice of redemption by first class mail to each
Holder whose Notes are to be redeemed.
The notice shall identify the Notes to be redeemed and
shall state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the name and address of the Paying Agent;
(iv) that Notes called for redemption must be surrendered to
the Paying Agent in order to collect the Redemption Price;
(v) that, unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date and the only remaining right of
the Holders is to receive payment of the Redemption Price plus accrued
interest to the Redemption Date upon surrender of the Notes to the
Paying Agent;
(vi) that, in the case of a redemption pursuant to section
3.01(a) or Section 3.01(b), if any Note is being redeemed in part, the
portion of the principal amount (equal to $1,000 in principal amount at
maturity or any integral multiple thereof) of such Note to be redeemed
and that, on and after the Redemption Date, upon surrender of such
Note, a new Note or Notes in principal amount at maturity equal to the
unredeemed portion thereof will be reissued; and
(vii) that, if any Note contains a CUSIP, CINS or ISIN number
as provided in Section 2.13, no representation is being made as to the
correctness of the CUSIP, CINS or ISIN number either as printed on the
Notes or as contained in the notice of redemption and that reliance may
be placed only on the other identification numbers printed on the
Notes.
At the Company's request (which request may be revoked by
the Company at any time prior to the time at which the
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Trustee shall have given such notice to the Holders), made in writing to the
Trustee at least 30 days (or such shorter period as shall be satisfactory to
the Trustee) before a Redemption Date, the Trustee shall give the notice of
redemption in the name and at the expense of the Company. If, however, the
Company gives such notice to the Holders, the Company shall concurrently
deliver to the Trustee an Officers' Certificate stating that such notice has
been given.
SECTION 3.05. EFFECT OF NOTICE OF REDEMPTION. Once notice
of redemption is mailed, Notes called for redemption become due and payable
on the Redemption Date and at the Redemption Price. Upon surrender of any
Notes to the Paying Agent, such Notes shall be paid at the Redemption Price,
plus accrued interest, if any, to the Redemption Date.
Notice of redemption shall be deemed to be given when
mailed, whether or not the Holder receives the notice. In any event, failure
to give such notice, or any defect therein, shall not affect the validity of
the proceedings for the redemption of Notes held by Holders to whom such
notice was properly given.
SECTION 3.06. DEPOSIT OF REDEMPTION PRICE. On or prior to
any Redemption Date, the Company shall deposit with the Paying Agent (or, if
the Company is acting as its own Paying Agent, shall segregate and hold in
trust as provided in Section 2.05) money sufficient to pay the Redemption
Price of and accrued interest on all Notes to be redeemed on that date other
than Notes or portions thereof called for redemption on that date that have
been delivered by the Company to the Trustee for cancellation.
SECTION 3.07. PAYMENT OF NOTES CALLED FOR REDEMPTION. If
notice of redemption has been given in the manner provided above, the Notes
or portion of Notes specified in such notice to be redeemed shall become due
and payable on the Redemption Date at the Redemption Price stated therein,
together with accrued interest to such Redemption Date, and on and after such
date (unless the Company shall default in the payment of such Notes at the
Redemption Price and accrued interest to the Redemption Date, in which case
the principal, until paid, shall bear interest from the Redemption Date at
the rate prescribed in the Notes), such Notes shall cease to accrue interest.
Upon surrender of any Note for redemption in accordance with a notice of
redemption, such Note shall be paid and redeemed by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided that installments
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of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders registered as such at the close of business on the
relevant Regular Record Date.
SECTION 3.08. NOTES REDEEMED IN PART. Upon surrender of any
Note that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Note equal in principal
amount to the unredeemed portion of such surrendered Note, which shall not,
in any event be less than $100,000 principal amount at maturity.
ARTICLE FOUR
COVENANTS
SECTION 4.01. PAYMENT OF NOTES. The Company shall pay the
principal of, premium, if any, and interest on the Notes on the dates and in
the manner provided in the Notes and this Indenture. An installment of
principal, premium, if any, or interest shall be considered paid on the date
due if the Trustee or Paying Agent (other than the Company, a Subsidiary of
the Company, or any Affiliate of any of them) holds on that date money
designated for and sufficient to pay the installment. If the Company or any
Subsidiary of the Company or any Affiliate of any of them, acts as Paying
Agent, an installment of principal, premium, if any, or interest shall be
considered paid on the due date if the entity acting as Paying Agent complies
with the last sentence of Section 2.05. As provided in Section 6.09, upon an
bankruptcy or reorganization procedure relative to the Company, the Trustee
shall serve as the Paying Agent and conversion agent, if any, for the Notes.
The Company shall pay interest on overdue principal,
premium, if any, and interest on overdue installments of interest, to the
extent lawful, at the rate per annum then borne upon the Notes.
SECTION 4.02. MAINTENANCE OF OFFICE OR AGENCY. The Company
will maintain in the Borough of Manhattan, The City of New York, an office or
agency where Notes may be surrendered for registration of transfer or
exchange or for presentation for payment and where notices and demands to or
upon the Company in respect of the Notes and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any
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such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be
made or served at the address of the Trustee set forth in Section 10.02.
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 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 for such purposes.
The Company will 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 initially designates the Corporate Trust
Office of the Trustee, located in the Borough of Manhattan, The City of New
York, as such office of the Company in accordance with Section 2.04.
SECTION 4.03. LIMITATION ON INDEBTEDNESS. The Company will
not, and will not permit any of the Restricted Subsidiaries to, Incur any
Indebtedness (other than the Notes and Indebtedness existing on the Issue
Date); PROVIDED that the Company and any Subsidiary Guarantor may Incur
Indebtedness (including Acquired Indebtedness), and any Restricted Subsidiary
may incur Acquired Indebtedness, if, in either case, after giving effect to
the Incurrence of such Indebtedness and the receipt and application of the
proceeds therefrom, the Consolidated Leverage Ratio would be greater than
zero and less than 6.0 to 1.0.
Notwithstanding the foregoing, the Company and any
Restricted Subsidiary (except as specified below) may Incur each and all of
the following:
(i) Indebtedness (A) of any Restricted Subsidiary owed to
the Company evidenced by a promissory note or (B) of the Company or any
Restricted Subsidiary to any Restricted Subsidiary; PROVIDED that, in
the case of clause (B) above, any event which results in any such
Restricted Subsidiary ceasing to be a Restricted Subsidiary or, in the
case of clause (A) and (B) above, any subsequent transfer of such
Indebtedness (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute an Incurrence
of such Indebtedness not permitted by this clause (i);
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(ii) Refinancing Indebtedness;
(iii) Indebtedness of the Company or any Restricted Subsidiary
(A) in respect of performance, surety or appeal bonds provided in the
ordinary course of business, (B) under Currency Agreements and Interest
Rate Agreements; PROVIDED that such agreements (a) are designed solely
to protect the Company or any Restricted Subsidiary against
fluctuations in foreign currency exchange rates or interest rates and
(b) do not increase the Indebtedness of the obligor outstanding at any
time other than as a result of fluctuations in foreign currency
exchange rates or interest rates or by reason of fees, indemnities and
compensation payable thereunder, and (C) arising from agreements
providing for indemnification, adjustment of purchase price or similar
obligations, or from Guaranties or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any
Restricted Subsidiary pursuant to such agreements, in any case Incurred
in connection with the disposition of any business, assets or
Restricted Subsidiary (other than Guaranties of Indebtedness Incurred
by any Person acquiring all or any portion of such business, assets or
Restricted Subsidiary for the purpose of financing such acquisition),
in an amount not to exceed the gross proceeds actually received by the
Company or any Restricted Subsidiary in connection with such
disposition;
(iv) Indebtedness represented by (A) the Notes, (B)
Guaranties of the Notes, and (C) Guaranties by any Restricted
Subsidiary of Indebtedness of the Company otherwise permitted under
this covenant, PROVIDED any Guaranty permitted by this clause (C) is
permitted by and made in accordance Section 4.07;
(v) Indebtedness of the Company (PROVIDED that any such
Indebtedness constituting Debt Securities does not mature as to
principal or become mandatorily redeemable prior to the Stated Maturity
of the Notes) or Indebtedness (other than Debt Securities) of any
Restricted Subsidiary Incurred to finance the cost (including the cost
of design, development, acquisition, construction, installation,
improvement, transportation or integration) to acquire equipment,
inventory or network assets (including acquisitions by way of
Capitalized Lease and acquisitions of the Capital Stock of a Person
that becomes a Restricted Subsidiary to the extent of the fair market
value of the equipment, inventory or network assets of such Person so
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acquired) by the Company or a Restricted Subsidiary after the Issue
Date for application or use in a Telecommunications Business in an
aggregate principal amount not to exceed $225 million (or, to the
extent non-U.S. dollar denominated, the U.S. Dollar Equivalent thereof)
at any one time outstanding;
(vi) Indebtedness of the Company such that, after giving
effect to the Incurrence thereof, the total aggregate principal amount
of Indebtedness Incurred under this clause (vi) and any Refinancings
thereof otherwise Incurred in compliance with this Indenture would not
exceed 200% of Total Incremental Equity;
(vii) Indebtedness the Company and its Subsidiaries incurred
under one or more Senior Credit Facilities in an aggregate principal
amount not to exceed $170 million (or, to the extent non-U.S. dollar
denominated, the U.S. Dollar Equivalent thereof) at any time
outstanding; and
(viii) Indebtedness (in addition to Indebtedness permitted
under clauses (i) through (vii) above) outstanding at any time in an
aggregate principal amount not to exceed $25 million (or, to the extent
non-U.S. dollar denominated, the U.S. Dollar Equivalent thereof).
Notwithstanding any other provision of this Section 4.03,
the maximum amount of Indebtedness that the Company or a Restricted
Subsidiary may Incur pursuant to this Section 4.03 shall not be deemed to be
exceeded, with respect to any outstanding Indebtedness due solely to the
result of fluctuations in the exchange rates of currencies.
For purposes of determining compliance with this Section
4.03, in the event that an item of Indebtedness meets the criteria of more
than one of the types of Indebtedness described in the above clauses, the
Company, in its sole discretion, shall classify, and from time to time may
reclassify, such item of Indebtedness and only be required to include the
amount and type of such Indebtedness in one of such clauses.
SECTION 4.04. LIMITATION ON RESTRICTED PAYMENTS. The
Company will not, and will not permit any Restricted Subsidiary to, directly
or indirectly,
(i) declare or pay any dividend or make any distribution on
or with respect to its Capital Stock (other than (x) dividends or
distributions payable solely in its Capi-
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tal Stock (other than Disqualified Stock) and (y) pro rata dividends
or distributions on Common Stock of Restricted Subsidiaries) held by
Persons other than the Company or any of the Restricted Subsidiaries,
(ii) purchase, redeem, retire or otherwise acquire for value
any Capital Stock of (A) the Company or an Unrestricted Subsidiary held
by any Person or (B) a Restricted Subsidiary held by any Affiliate of
the Company (other than a Restricted Subsidiary) or any holder (or any
Affiliate of such holder) of 5% or more of any class of Capital Stock
of the Company,
(iii) make any voluntary or optional principal payment, or
voluntary or optional redemption, repurchase, defeasance, or other
acquisition or retirement for value prior to any scheduled mandatory
payment date, of Subordinated Indebtedness, or
(iv) make any Investment, other than a Permitted Investment,
in any Person
(such payments or any other actions described in clauses (i) through (iv) above
being collectively "Restricted Payments") if, at the time of, and after giving
effect to, the proposed Restricted Payment:
(A) a Default shall have occurred and be continuing,
(B) the Company could not Incur at least $1.00 of
Indebtedness under the first paragraph of the Section
4.03, or
(C) the aggregate amount of all Restricted Payments (the
amount, if other than in cash, to be determined in good
faith by the Board of Directors, whose determination
shall be conclusive and evidenced by a Board Resolution)
made after the Issue Date shall exceed the sum of (1) the
amount of (x) Cumulative Available Cash Flow determined
at the time of such Restricted Payment less (y) 150% of
the Cumulative Consolidated Interest Expense determined
for the period commencing on the first day of the fiscal
quarter which includes the Issue Date and ending on the
last day of the last fiscal quarter preceding the
Transaction Date for which reports have been filed with
the Commission or provided to the Trustee
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pursuant to Section 4.18 PLUS (2) the aggregate Net Cash
Proceeds received by the Company after the Issue Date as
a capital contribution or from the issuance and sale of
its Capital Stock (other than Disqualified Stock) to a
Person who is not a Subsidiary of the Company, including
an issuance or sale permitted by this Indenture of
Indebtedness of the Company for cash subsequent to the
Issue Date upon the conversion of such Indebtedness into
Capital Stock (other than Disqualified Stock) of the
Company, PLUS (3) an amount equal to the net reduction
in Investments constituting Restricted Payments resulting
from payments of interest on Indebtedness, dividends,
repayments of loans or advances, or other transfers of
assets, in each case to the Company or any Restricted
Subsidiary, or from the Net Cash Proceeds from the sale
of any such Investment less the cost of the disposition
of such Investment (except, in each case, to the extent
any such payment or proceeds are included in the
calculation of Adjusted Consolidated Net Income), or
from redesignations of Unrestricted Subsidiaries as
Restricted Subsidiaries (valued in each case as provided
in the definition of "Investments"), not to exceed, in
each case, the amount of such Investment, MINUS (4) 50%
of the then outstanding principal amount of any
Indebtedness Incurred pursuant to clause (vi) of the
second paragraph of the Section 4.03 and any Refinancings
thereof (regardless of any subsequent reclassification
of any such Indebtedness).
The foregoing provision shall not be violated by reason of:
(i) the payment of any dividend within 60 days after the date of declaration
thereof if, at said date of declaration, such payment would comply with the
foregoing paragraph; (ii) so long as no Default shall have occurred and be
continuing, the redemption, repurchase, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness including premium, if any,
and accrued and unpaid interest, with the proceeds of, or in exchange for,
Indebtedness Incurred under clause (ii) of the second paragraph of the
Section 4.03; (iii) the repurchase, redemption or other acquisition of
Capital Stock of the Company or a Subsidiary of the Company in exchange for,
or out of the proceeds of a capital contribution or a substantially
concurrent offering of, Capital Stock (other than Disqualified Stock) of the
Company; (iv) so long as no De-
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fault shall have occurred and be continuing, the making of any principal
payment or the repurchase, redemption, retirement, defeasance or other
acquisition for value of Subordinated Indebtedness in exchange for, or out of
the proceeds of a capital contribution or a substantially concurrent offering
of, the Capital Stock (other than Disqualified Stock) of the Company; (v)
payments or distributions to dissenting stockholders pursuant to applicable
law, pursuant to or in connection with a consolidation, merger or transfer of
assets that complies with the provisions of this Indenture applicable to
mergers, consolidations and transfers of all or substantially all of the
property and assets of the Company; (vi) so long as no Default shall have
occurred and be continuing, any Investment in any Person primarily engaged in
a Telecommunications Business on the date of such Investment; PROVIDED that
after giving effect to the proposed Investment, the aggregate amount of
Investments made pursuant to this clause (vi) does not then exceed the sum of
(a) $25 million (or, to the extent non-U.S. dollar denominated, the U.S.
Dollar Equivalent thereof) PLUS (b) the amount then available for the making
of Restricted Payments pursuant to clause (C) of the preceding paragraph
without giving effect to subclause (1) thereof; or (vii) prior to the
occurrence of a Public Market, dividends or distributions to Parent in
respect of the purchase, redemption, retirement or other acquisition for
value of Capital Stock of Parent held by managers, directors, employees or
officers, or former managers, directors, employees or officers, of Parent,
CableTel Management, Inc. the Company or a Restricted Subsidiary (or their
estates or beneficiaries under their estates), upon the death, disability,
retirement, termination of employment or pursuant to the terms of any
agreement under which such Capital Stock was issued; PROVIDED that the
aggregate consideration paid for such purchase, redemption, retirement or
other acquisition for value of such Capital Stock after the Issue Date does
not exceed $5 million (or, to the extent non-U.S. dollar denominated, the
U.S. Dollar Equivalent thereof) in the aggregate (unless such repurchases are
made with the proceeds of insurance policies and the Capital Stock is
purchased from the executors, administrators, testamentary trustees, heirs,
legatees or beneficiaries).
Each Restricted Payment permitted pursuant to the preceding
paragraph (other than the Restricted Payment referred to in clause (ii)
thereof) and the proceeds from any capital contribution or any issuance of
Capital Stock referred to in clauses (iii) and (iv) thereof shall be included
in calculating whether the conditions of clause (C) of the first paragraph of
this Section 4.04 have been met with respect to any subsequent Restricted
Payments.
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SECTION 4.05. LIMITATION ON DIVIDEND AND OTHER PAYMENT
RESTRICTIONS AFFECTING RESTRICTED SUBSIDIARIES. The Company will not, and
will not permit any Restricted Subsidiary to, create or otherwise cause or
suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any Restricted Subsidiary to (i) pay dividends
or make any other distributions permitted by applicable law on any Capital
Stock of such Restricted Subsidiary owned by the Company or any other
Restricted Subsidiary, (ii) pay any Indebtedness owed to the Company or any
other Restricted Subsidiary, (iii) make loans or advances to the Company or
any other Restricted Subsidiary or (iv) transfer any of its property or
assets to the Company or any other Restricted Subsidiary.
The foregoing provisions shall not restrict any
encumbrances or restrictions: (i) existing on the Issue Date on this
Indenture or any other agreements in effect on the Issue Date, and any
extensions, refinancings, renewals or replacements of such agreements;
PROVIDED that the encumbrances and restrictions in any such extensions,
refinancings, renewals or replacements are no less favorable in any material
respect to the Holders than those encumbrances or restrictions that are then
in effect and that are being extended, refinanced, renewed or replaced; (ii)
existing under or by reason of applicable law; (iii) existing with respect to
any Person or the property or assets of such Person acquired by the Company
or any Restricted Subsidiary, existing at the time of such acquisition and
not incurred in contemplation thereof, which encumbrances or restrictions are
not applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired; (iv)
in the case of clause (iv) of the first paragraph of this Section 4.05, (A)
that restrict in a customary manner the subletting, assignment or transfer of
any property or asset that is a lease, license, conveyance or contract or
similar property or asset, (B) existing by virtue of any transfer of,
agreement to transfer, option or right with respect to, or Lien on, any
property or assets of the Company or any Restricted Subsidiary not otherwise
prohibited by this Indenture or (C) arising or agreed to in the ordinary
course of business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, detract from the value of property or
assets of the Company or any Restricted Subsidiary in any manner material to
the Company or any Restricted Subsidiary; (v) with respect to a Restricted
Subsidiary and imposed pursuant to an agreement that has been entered into
for the sale or disposition of all or substantially all of the Capital Stock
of, or property and assets of,
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such Restricted Subsidiary; or (vi) contained in the terms of any
Indebtedness or any agreement pursuant to which such Indebtedness was issued
if (A) either (i) the encumbrance or restriction applies only in the event of
and during the continuance of a payment default or a default with respect to
a financial covenant contained in such Indebtedness or agreement, or (ii) the
Company determines at the time any such Indebtedness is Incurred (and at the
time of any modification of the terms of any such encumbrance or restriction)
that any such encumbrance or restriction will not materially affect the
Company's ability to make principal or interest payments on the Notes and (B)
the encumbrance or restriction is not materially more disadvantageous to the
Holders of the Notes than is customary in comparable financings or agreements
(as determined by the Company in good faith). Nothing contained in this
Section 4.05 shall prevent the Company or any Restricted Subsidiary from
restricting the sale or other disposition of property or assets of the
Company or any Restricted Subsidiary that secure Indebtedness of the Company
or any such Restricted Subsidiary.
SECTION 4.06. LIMITATION ON THE ISSUANCE AND SALE OF
CAPITAL STOCK OF RESTRICTED SUBSIDIARIES. The Company will not sell, and will
not permit any Restricted Subsidiary, directly or indirectly, to issue or
sell, any Capital Stock of a Restricted Subsidiary except (i) to the Company
or a Restricted Subsidiary; (ii) issuances of director's qualifying shares or
issuances of Capital Stock to nationals of the jurisdiction of organization
of a Restricted Subsidiary, to the extent required by applicable law; (iii)
if, immediately after giving effect to such issuance or sale, such Restricted
Subsidiary would no longer constitute a Restricted Subsidiary and any
Investment in such Person remaining after giving effect to such issuance or
sale would have been permitted to be made under Section 4.04 if made on the
date of such issuance or sale; or (iv) issuances or sales of Common Stock of
a Restricted Subsidiary, PROVIDED that the Company or such Restricted
Subsidiary applies the Net Cash Proceeds, if any, of any such sale in
accordance with clause (A), (B) or (C) of Section 4.10.
SECTION 4.07. LIMITATION ON ISSUANCES OF GUARANTIES AND
INCURRENCE OF CERTAIN INDEBTEDNESS BY RESTRICTED SUBSIDIARIES. The Company
will not permit any Restricted Subsidiary, directly or indirectly, to (i)
Guaranty any Subordinated Indebtedness or Debt Securities of the Company or
(ii) Incur any Indebtedness under or in respect of Debt Securities or
Subordinated Indebtedness under clause (ii), (v) or (ix) of the second
paragraph of Section 4.03 ("Guaranteed Indebtedness"), unless such Restricted
Subsidiary simultaneously executes and delivers
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a supplemental indenture to this Indenture providing for a Guaranty of
payment of the Notes by such Restricted Subsidiary on the terms set forth in
Exhibit E attached hereto; PROVIDED that this paragraph shall not be
applicable to any Guaranty of any Restricted Subsidiary that existed at the
time such Person became a Restricted Subsidiary and was not Incurred in
connection with, or in contemplation of, such Person becoming a Restricted
Subsidiary. Any such supplemental indenture shall supplement this Indenture
by, among other things, creating an additional Article Eleven applicable to
such Subsidiary Guarantor and any other Subsidiary Guarantors in the form set
forth in Exhibit E hereto and, in connection with the execution and delivery
of the supplemental indenture, such Subsidiary Guarantor shall execute and
deliver a Subsidiary Guaranty substantially in the form of Exhibit F hereto
and, at the time of entering into such supplemental indenture, such
Subsidiary Guarantor shall have furnished to the Trustee an Opinion of
Counsel, in form reasonably satisfactory to the Trustee, to the effect that
such supplemental indenture has been duly authorized, executed and delivered
by, and constitutes a legal, valid and binding obligation of, such Subsidiary
Guarantor and the Company, subject to exceptions and qualifications as are
customary for transactions of such nature. Such Article Eleven shall not
become effective until the provisions of Section 11.3 of such Article Eleven
have been complied with and will be subject to release under the conditions
described in Section 11.5 of such Article Eleven.
If the Guaranteed Indebtedness is (A) not Subordinated
Indebtedness, then the Guaranty of such Guaranteed Indebtedness shall be PARI
PASSU with, or subordinated to, the Subsidiary Guaranty or (B) Subordinated
Indebtedness, then the Guaranty of such Guaranteed Indebtedness shall be
subordinated to the Subsidiary Guaranty at least to the extent that the
Guaranteed Indebtedness is subordinated to the Notes.
SECTION 4.08. LIMITATION ON TRANSACTIONS WITH SHAREHOLDERS
AND AFFILIATES. The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction (including, without limitation, the purchase, sale, lease or
exchange of property or assets, or the rendering of any service) with any
holder (or any Affiliate of such holder) of 5% or more of any class of
Capital Stock of the Company or with any Affiliate of the Company or any
Restricted Subsidiary, except upon fair and reasonable terms no less
favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant
to a written agree-
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ment, at the time of the execution of the agreement providing therefor, in a
comparable arm's-length transaction with a Person that is not such a holder
or an Affiliate.
The foregoing limitation does not limit and shall not apply
to (i) transactions (A) approved by a majority of the disinterested members
of the Board of Directors as being on fair and reasonable terms no less
favorable to the Company or such Restricted Subsidiary than could be
obtained, at the time of such transaction or, if such transaction is pursuant
to a written agreement, at the time of the execution of the agreement
providing therefor, in a comparable arm's-length transaction with a Person
that is not such a holder or an Affiliate or (B) for which the Company or a
Restricted Subsidiary delivers to the Trustee a written opinion of an
internationally recognized investment banking firm stating that the
transaction is fair to the Company or such Restricted Subsidiary from a
financial point of view; (ii) any transaction solely between the Company and
any of its Wholly Owned Restricted Subsidiaries or solely between Wholly
Owned Restricted Subsidiaries; (iii) the payment of reasonable and customary
regular fees to directors of the Company who are not employees of the Company
and the entering into indemnification or similar arrangements with respect to
officers and directors of the Company in their capacities as such; (iv) any
payments or other transactions pursuant to any tax-sharing agreement between
the Company and any other Person with which the Company files a consolidated
tax return or with which the Company is part of a consolidated group for tax
purposes; (v) any Restricted Payments not prohibited by Section 4.04; (vi)
issuances of Capital Stock (other than Disqualified Stock) of the Company;
and (vii) the payment of fees and expenses pursuant to the Management
Services Agreement. Notwithstanding the foregoing, any transaction or series
of related transactions covered by the first paragraph of this Section 4.08
and not covered by clauses (ii) through (v) of this paragraph, the aggregate
amount of which exceeds $10 million (or, to the extent non-U.S. denominated,
the U.S. Dollar Equivalent thereof) in value, must be approved or determined
to be fair in the manner provided for in clause (i)(A) or (B) above.
SECTION 4.09. LIMITATION ON LIENS SECURING CERTAIN
INDEBTEDNESS. The Company will not, and will not permit any Restricted
Subsidiary to, create, incur, assume or suffer to exist any Liens of any kind
against or upon any of its property or assets, or any proceeds therefrom,
which secure either (x) Subordinated Indebtedness of the Company or any
Restricted Subsidiary, unless the Notes are secured by a Liens on such
prop-
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erty, assets or proceeds that is senior in priority to the Liens securing
such Subordinated Indebtedness, or (y) Pari Passu Debt Securities, unless the
Notes are equally and ratably secured with the Liens securing such Pari Passu
Debt Securities; PROVIDED that any Lien which is granted to secure the Notes
under this covenant shall be discharged at the same time as the discharge of
the Lien that gave rise to the obligation to so secure the Notes.
Notwithstanding the foregoing, the Company may incur and allow to exist Liens
securing Debt Securities which exclusively consist of Liens on (x) Government
Securities purchased at the time such Debt Securities are sold with the
proceeds therefrom or (y) cash provided by the sale of such Debt Securities,
in either case to the extent that the proceeds used to purchase any such
Government Securities or providing any such cash constitute a prefunding of
the payment of interest on the Debt Securities Secured thereby and are set
aside in an escrow account or similar arrangement to be applied for such
purpose.
SECTION 4.10. LIMITATION ON ASSET SALES. The Company will
not, and will not permit any Restricted Subsidiary to, consummate any Asset
Sale, unless (i) the consideration received by the Company or such Restricted
Subsidiary is at least equal to the fair market value of the assets sold or
disposed of and (ii) at least 75% of the consideration received consists of
(a) cash or Temporary Cash Investments or (b) Replacement Assets. In the
event and to the extent that the Company and/or the Restricted Subsidiaries
receive Net Cash Proceeds from one or more Asset Sales occurring on or after
the Issue Date, then the Company shall or shall cause the relevant Restricted
Subsidiary to (i) within 12 months after the date Net Cash Proceeds are so
received (A) apply such excess Net Cash Proceeds to repay Indebtedness (other
than Pari Passu Debt and Subordinated Indebtedness of the Company or
Subordinated Indebtedness of any Subsidiary Guarantor which is subordinated
in right of payment to a Subsidiary Guaranty of such Subsidiary Guarantor) of
the Company or a Restricted Subsidiary and elect to permanently reduce the
commitments thereunder by the amount of such Indebtedness so repaid and/or
(B) apply no more than the Pari Passu Pro Rata Share of such Net Cash
Proceeds to repay, and permanently reduce any commitments relating to, Pari
Passu Debt Securities and/or (C) invest the amount not so applied pursuant to
clauses (A) or (B) (or enter into a definitive agreement committing to so
invest within 12 months after the date of such agreement), in Replacement
Assets and (ii) apply (no later than the end of the 12-month period referred
to in clause (i)) such Net Cash Proceeds (to the extent not applied pursuant
to clause (i)) as provided in the following paragraph of this Section
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4.10. The amount of such Net Cash Proceeds required to be applied (or to be
committed to be applied) during such 12-month period as set forth in clause
(i) of the preceding sentence and not applied as so required by the end of
such period shall constitute "Excess Proceeds."
If, as of the first day of any calendar month, the
aggregate amount of Excess Proceeds not theretofore subject to an Offer to
Purchase pursuant to this Section 4.10 totals at least $15 million (or, to
the extent non-U.S. denominated, the U.S. Dollar Equivalent thereof), the
Company must commence, not later than the fifteenth Business Day of such
month, and consummate an Offer to Purchase from the Holders on a pro rata
basis an aggregate Accreted Value of Notes equal to the Excess Proceeds on
such date, at a purchase price equal to 100% of the Accreted Value of the
Notes on the relevant Payment Date, plus, in each case, accrued interest (if
any) to the Payment Date.
SECTION 4.11. LIMITATION ON STATUS AS INVESTMENT COMPANY.
The Company will not, and will not permit any of its Subsidiaries or
controlled Affiliates to, conduct its business in a fashion that would cause
the Company to be required to register as an "investment company" (as that
term is defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act")), or otherwise to become subject to regulation
under the Investment Company Act. For purposes of establishing the Company's
compliance with this provision, any exemption which is or would become
available under Section 3(c)(1) or Section 3(c)(7) of the Investment Company
Act will be disregarded.
SECTION 4.12. REPURCHASE OF NOTES UPON A CHANGE OF CONTROL.
The Company or a third party must commence, within 30 days of the occurrence
of a Change of Control, and consummate an Offer to Purchase for all Notes
then outstanding, at a purchase price equal to 101% of the Accreted Value
thereof on the relevant Payment Date, PLUS accrued interest (if any) to the
Payment Date.
SECTION 4.13. EXISTENCE. Subject to Articles Four and Five
of this Indenture, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence and the
existence of each Restricted Subsidiary in accordance with the respective
organizational documents of the Company and each Restricted Subsidiary and
the rights (whether pursuant to charter, partnership certificate, agreement,
statute or otherwise), material licenses and franchises of the Company and
each Restricted Subsidiary;
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provided that the Company shall not be required to preserve any such right,
license or franchise, or the existence of any Restricted Subsidiary (other
than the Escrow Guarantor, so long as the Escrow Agreement is in effect), if
the maintenance or preservation thereof is no longer desirable in the conduct
of the business of the Company and its Restricted Subsidiaries taken as a
whole.
SECTION 4.14. PAYMENT OF TAXES AND OTHER CLAIMS. The
Company will pay or discharge and shall cause each of its Restricted
Subsidiaries to pay or discharge, or cause to be paid or discharged, before
the same shall become delinquent (i) all material taxes, assessments and
governmental charges levied or imposed upon (a) the Company or any such
Restricted Subsidiary, (b) the income or profits of any such Restricted
Subsidiary which is a corporation or (c) the property of the Company or any
such Restricted Subsidiaries and (ii) all material lawful claims for labor,
materials and supplies that, if unpaid, might by law become a lien upon the
property of the Company or any such Restricted Subsidiary; provided that the
Company shall not be required to pay or discharge, or cause to be paid or
discharged, any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate reserves have been established.
SECTION 4.15. MAINTENANCE OF PROPERTIES AND INSURANCE. The
Company will cause all properties used or useful in the conduct of its
business or the business of any of its Restricted Subsidiaries, to be
maintained and kept in good condition, repair and working order and supplied
with all necessary equipment and will cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in the
judgment of the Company may be necessary so that the business carried on in
connection therewith may be properly conducted at all times; provided that
nothing in this Section 4.15 shall prevent the Company or any such Restricted
Subsidiary from discontinuing the use, operation or maintenance of any of
such properties or disposing of any of them, if such discontinuance or
disposal is, in the judgment of the Company, desirable in the conduct of the
business of the Company or such Restricted Subsidiary.
The Company will provide or cause to be provided, for
itself and its Restricted Subsidiaries, insurance (including appropriate
self-insurance) against loss or damage of the kinds customarily insured
against by corporations similarly situated and owning like properties, with
reputable insurers, in such
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amounts, with such deductibles and by such methods as shall be customary for
businesses similarly situated in the industry in which the Company or such
Restricted Subsidiary, as the case may be, is then conducting business.
SECTION 4.16. NOTICE OF DEFAULTS. In the event that the
Company becomes aware of any Default or Event of Default the Company,
promptly after it becomes aware thereof, will give written notice thereof to
the Trustee.
SECTION 4.17. COMPLIANCE CERTIFICATES. (a) The Company
shall deliver to the Trustee, within 90 days after the end of the last fiscal
quarter of each year, an Officers' Certificate stating whether or not the
signers know of any Default or Event of Default that occurred during such
fiscal quarter. Such certificate shall contain a certification from the
principal executive officer, principal financial officer or principal
accounting officer that a review has been conducted of the activities of the
Company and its Restricted Subsidiaries and the Company's and its Restricted
Subsidiaries' performance under this Indenture and that, to the knowledge of
such Officers, the Company has complied with all conditions and covenants
under this Indenture. For purposes of this Section 4.17, such compliance
shall be determined without regard to any period of grace or requirement of
notice provided under this Indenture. If they do know of such a Default or
Event of Default, the certificate shall describe any such Default or Event of
Default and its status. The first certificate to be delivered pursuant to
this Section 4.17(a) shall be for the first fiscal year beginning after the
execution of this Indenture.
(b) So long as (and to the extent) not prohibited by the
then current recommendations of the American Institute of Certified Public
Accountants, the Company shall deliver to the Trustee, within 90 days after
the end of the Company's fiscal year, a certificate signed by the Company's
independent certified public accountants stating (i) that their audit
examination has included a review of the terms of this Indenture and the
Notes as they relate to accounting matters, (ii) that they have read the most
recent Officers' Certificate delivered to the Trustee pursuant to paragraph
(a) of this Section 4.17 and (iii) whether, in connection with their audit
examination, anything came to their attention that caused them to believe
that the Company was not in compliance with any of the terms, covenants,
provisions or conditions of Article Four and Section 5.01 of this Indenture
as they pertain to accounting matters and, if any Default or Event of Default
has come to their attention, specifying the nature and period of existence
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thereof; provided that such independent certified public accountants shall
not be liable in respect of such statement by reason of any failure to obtain
knowledge of any such Default or Event of Default that would not come to the
attention of such accountants in the course of an audit examination conducted
in accordance with generally accepted auditing standards in effect at the
date of such examination.
(c) Within 90 days of the end of each of the Company's
fiscal years, the Company shall deliver to the Trustee a list of all
Significant Subsidiaries. The Trustee shall have no duty with respect to any
such list except to keep it on file and available for inspection by the
Holders.
SECTION 4.18. COMMISSION REPORTS AND REPORTS TO HOLDERS. At
all times from and after the date of the commencement of a registered
exchange offer for the Notes by the Company or the effectiveness of a Shelf
Registration Statement pursuant to and in accordance with the terms of the
Notes Registration Rights Agreement (the "Registration"), whether or not the
Company is then required to file reports with the Commission, the Company
shall file with the Commission all such reports and other information as it
would be required to file with the Commission by Sections 13(a) or 15(d)
under the Securities Exchange Act of 1934 if it were subject thereto. The
Company shall supply the Trustee and each Holder or shall supply to the
Trustee for forwarding to each Holder, without cost to any Holder, copies of
such reports and other information. In addition, at all times prior to the
date of the Registration, the Company shall, at its cost, deliver to each
Holder of the Notes quarterly and annual reports substantially equivalent to
those which would be required by the Exchange Act. In addition, at all times
prior to the Registration, upon the request of any Holder or any prospective
purchaser of the Notes designated by a Holder, the Company shall supply to
such Holder or such prospective purchaser the information required under Rule
144A under the Securities Act.
SECTION 4.19. WAIVER OF STAY, EXTENSION OR USURY LAWS. The
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, premium, if any, or interest on the Notes as
contemplated herein, wherever enacted, now or at any time hereafter in force,
or that may affect the covenants or the performance of this Indenture; and
(to the ex-
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tent that it may lawfully do so) the Company hereby expressly waives all
benefit or advantage of any such law and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such
law had been enacted.
SECTION 4.20. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on outstanding Notes as
of the end of such year and (ii) such other specific information relating to
such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time and requested by the
Trustee.
SECTION 4.21. PAYMENT OF ADDITIONAL AMOUNTS. (a) All
payments made by the Company, the Escrow Guarantor and any Subsidiary
Guarantor with respect to the Notes (including payments in respect of
Liquidated Damages, if any) will be made free and clear of, and without
withholding or deduction for or on account of, any present or future tax,
duty, levy, impost, assessment or other government charge (including
penalties, interest or other liabilities related thereto) imposed or levied
by or on behalf of the government of the Netherlands or any political
subdivision or taxing authority or agency thereof or therein or any other
jurisdiction in which the Company is organized or engaged in business for tax
purposes ("Taxes"), unless the Company, the Escrow Guarantor or any
Subsidiary Guarantor is required to withhold or deduct Taxes by law or by the
interpretation or administration thereof. If the Company, the Escrow
Guarantor or any such Subsidiary Guarantor is required to withhold or deduct
any amount for or on account of Taxes, from any payment made under or with
respect to the Notes, the Company will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder of Notes (including Additional Amounts) after such withholding or
deduction will not be less than the amount the Holder would have received if
such Taxes had not been withheld or deducted; PROVIDED that the foregoing
obligation to pay Additional Amounts does not apply to (a) any Taxes that
would not have been so imposed but for the existence of any present or former
connection between the relevant Holder (or between a fiduciary, settlor,
beneficiary, member or shareholder of, or possessor of power over, the
relevant holder, if the relevant holder is an estate, nominee, trust or
corporation) and the Netherlands or any political subdivision or taxing
authority or
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agency thereof or therein or any other jurisdiction in which the Company is
organized or engaged in business for tax purposes (other than the mere
receipt of such payment or the ownership or holding outside of the
Netherlands or such other jurisdiction of such Note); (b) any estate,
inheritance, gift, sales, transfer, personal property tax or similar tax,
assessment or governmental charge; or (c) any Taxes payable otherwise than by
deduction or withholding from payments of principal of (or premium, if any,
on) or interest on such Note; nor will Additional Amounts be paid (i) if the
payment could have been made without such deduction or withholding if the
beneficiary of the payment had presented the Note for payment within 30 days
after the date on which such payment or such Note became due and payable or
the date on which payment thereof is duly provided for, whichever is later
(except to the extent that the Holder would have been entitled to Additional
Amounts had the Note been presented on the last day of such 30 day period),
or (ii) with respect to any payment of principal of (or premium, if any, on)
or interest on such Note to any Holder who is a fiduciary or partnership or
any person other than the sole beneficial owner of such payment, to the
extent that a beneficiary or settlor with respect to such fiduciary, a member
of such a partnership or the beneficial owner of such payment would not have
been entitled to the Additional Amounts had such beneficiary, settlor, member
or beneficial owner been the actual Holder of such Note. If the Company
conducts business in any jurisdiction (the "Taxing Jurisdiction") other than
the Netherlands in a manner which causes Holders to be liable for taxes on
payments under the Notes for which they would not have been so liable but for
such conduct of business in the Taxing Jurisdiction, "Taxes" shall include
taxes imposed by way of deduction or withholding by such Taxing Jurisdiction
and the Company's, the Escrow Guarantor's and any Subsidiary Guarantor's
obligations to pay Additional Amounts shall apply without regard to whether
Holders or beneficial owners have a present or former connection with such
Taxing Jurisdiction or any prefecture or territory thereof.
(b) The foregoing provisions of this Section 4.21 shall
survive any termination or discharge of this Indenture and shall apply
MUTATIS MUTANDIS to any jurisdiction in which any successor Person to the
Company is organized or any political subdivision or taxing authority or
agency thereof or therein.
(c) The Company will also (i) make such withholding or
deduction and (ii) remit the full amount deducted or withheld to the relevant
authority in accordance with applicable
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law. The Company, the Escrow Guarantor or any Subsidiary Guarantor will
furnish to the Holders of the Notes, within 30 days after the date the
payment of any Taxes so deducted or withheld is due pursuant to applicable
law, certified copies of tax receipts evidencing such payment by the Company,
the Escrow Guarantor or any Subsidiary Guarantor.
(d) At least 30 days prior to each date on which any
payment under or with respect to the Notes is due and payable unless such
obligation to pay Additional Amounts arises after the 30th day prior to such
date, in which case it shall be promptly paid thereafter, if the Company, the
Escrow Guarantor or any Subsidiary Guarantor will be obligated to pay
Additional Amounts with respect to such payment, the Company, the Escrow
Guarantor or any Subsidiary Guarantor will deliver to the Trustee and the
Paying Agent an Officers' Certificate stating the fact that such Additional
Amounts will be payable and the amounts so payable and will set forth such
other information necessary to enable the Trustee and the Paying Agent to pay
such Additional Amounts to Holders of Notes on the payment date. Each
Officers' Certificate shall be relied upon until receipt of a further
Officers' Certificate addressing such matters.
(e) Whenever in this Indenture there is mentioned, in any
context, the payment of principal, premium, if any, interest or of any other
amount payable under or with respect to any Note, such mention shall be
deemed to include mention of the payment of Additional Amounts to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof. The foregoing obligations relating to Additional Amounts
shall survive any termination, defeasance or discharge of this Indenture.
(f) The Company will not take any voluntary action that
results in its obligation to pay Additional Amounts.
SECTION 4.22. ESCROW ACCOUNT; MANDATORY REDEMPTION. (a) The
Escrow Guarantor shall apply the Initial Escrow Amount to the Escrow Account
in accordance with the terms of the Escrow Agreement for the benefit of the
Holders and the Trustee and the holders of the Class B Interests and the Unit
Agent.
(b) In the event that on or before the Required Date, the
Available Escrow Proceeds have not been released in accordance with the
requirements of Section 3(a) of the Escrow Agreement, the Company shall
notify the Escrow Agent, the Trustee and the Unit Agent in writing on the
next succeeding Busi-
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ness Day after the Required Date that the Company will consummate a Mandatory
Redemption. The Company shall provide the Escrow Agent, the Unit Agent, and
Trustee with a notice of Mandatory Redemption, which shall govern the terms
of the Mandatory Redemption. Such notice shall include such disclosures as
are required by law and shall state:
(1) that the Mandatory Redemption is being made pursuant to
this Section 4.22, with respect to the Notes, and pursuant to the Unit,
with respect to the Units and that the Units must be surrendered to the
Trustee as paying agent in order to collect the Mandatory Redemption
Price;
(2) the purchase price (which shall be the Mandatory
Redemption Price) for each Note and the Mandatory Redemption Date;
(3) that, unless the Company shall default in the payment of
the Mandatory Redemption Price, any Unit accepted for payment pursuant
to the Mandatory Redemption shall cease to accrete value (with respect
to the Note portion of the Unit) after the Mandatory Redemption Date;
(4) that Holders will be required to surrender their Units to
the paying agent at the address specified in the notice prior to 5:00
p.m., New York City time, on the Mandatory Redemption Date and must
complete any form letter of transmittal proposed by the Company and
acceptable to the Escrow Agent, Trustee, the Paying Agent and the Unit
Agent;
(5) the instructions that Holders of the Units must follow
in order to surrender their Units.
(c) On or before April 26, 1999 the Trustee and Unit Agent
shall together mail a notice (the "Mandatory Redemption Notice") to the
holders of the Units (with a copy to the Escrow Agent) stating that the Units
shall be mandatorily redeemed or repurchased on or before May 13, 1999, at
the redemption price (the "Mandatory Redemption Price") equal to the Accreted
Value of the Notes on the Mandatory Redemption Date, and shall state the
information provided in Section 4.22(b); it being acknowledged and agreed
that the failure of the Company to deliver the notice pursuant to Section
3(a)(i) of the Escrow Agreement on or prior to April 19, 1999 (the next
succeeding Business Day after the Required Date) shall be a request for the
Trustee and Unit Agent to give the Mandatory Redemption Notice (in compliance
with this Section 4.22 and Section 3(a)(ii) of the Escrow
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Agreement) to the holders of the Units and to consummate the Mandatory
Redemption.
(d) No later than two Business Days prior to the Mandatory
Redemption Date, the Escrow Agent shall disburse all Available Escrow
Proceeds to the Trustee as paying agent in connection with the Mandatory
Redemption of the Units.
(e) No later than two Business Days prior to the Mandatory
Redemption Date, the Company shall deposit with the Trustee as Paying Agent
an amount of funds such that on the Mandatory Redemption Date the Trustee
shall have immediately available funds (including the Available Escrow
Proceeds disbursed pursuant to clause (d) above) to pay the Mandatory
Redemption Price for all outstanding Units.
The Company will comply, to the extent applicable, with the
requirements of Section 14(e) of the Exchange Act, and any other securities
laws or regulations and any applicable requirements of any securities
exchange in which the laws are listed, in connection with the repurchase of
the Units pursuant to the Mandatory Redemption. To the extent that the
provisions of any securities laws or regulations conflict with the provisions
of this Section 4.22 or Section 3(b) of the Escrow Agreement, the Company
will comply with the applicable securities laws and regulations and
requirements and shall not be deemed to have breached its obligations under
this Section 4.22 or Section 3(b) under the Escrow Agreement by virtue
thereof.
ARTICLE FIVE
SUCCESSOR CORPORATION
SECTION 5.01. WHEN COMPANY MAY MERGE, ETC. The Company
shall not (i) consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its
property and assets (as an entirety or substantially an entirety in one
transaction or a series of related transactions) or (ii) permit any of the
Restricted Subsidiaries to enter into any such transaction or series of
transactions if it would result in the disposition of all or substantially
all of the properties or assets of the Company and the Restricted
Subsidiaries on a consolidated basis, unless:
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(i) the Company shall be the continuing Person, or the
Person (if other than the Company) formed by such consolidation or into
which the Company is merged or that acquired or leased such property
and assets of the Company shall be a corporation organized and validly
existing under the laws of an Approved Jurisdiction and shall expressly
assume, by a supplemental indenture, executed and delivered to the
Trustee, all of the obligations of the Company on all of the Notes and
under this Indenture;
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing;
(iii) the Company delivers to the Trustee an Opinion of
Counsel to the effect that the transaction will not result in the
surviving entity being required to make any deduction or withholding in
amounts greater than that the Company would otherwise be required to
make on account of Netherlands taxes, from any payments in respect of
the Notes or otherwise which would adversely affect Holders of the
Notes from the standpoint of the enforceability of the Notes or this
Indenture or service of process against the Company;
(iv) immediately after giving effect to such transaction on a
pro forma basis, the Company or any Person becoming the successor
obligor of the Notes shall have a Consolidated Net Worth equal to or
greater than the Consolidated Net Worth of the Company immediately
prior to such transaction;
(v) immediately after giving effect to such transaction on a
pro forma basis the Company, or any Person becoming the successor
obligor of the Notes, as the case may be, could Incur at least $1.00 of
Indebtedness under the first paragraph of Section 4.03; provided that
this clause (v) shall not apply to a consolidation, combination, merger
or sale of all or substantially all of the assets of the Company if
immediately after giving effect to such transaction on a pro forma
basis, the Company or any Person becoming the successor obligor of the
Notes shall have a Consolidated Leverage Ratio equal to or less than
the Consolidated Leverage Ratio of the Company immediately prior to
such transaction; and
(vi) the Company delivers to the Trustee an Officers'
Certificate (attaching the arithmetic computations to demonstrate
compliance with clauses (iv) and (v) above) and
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Opinion of Counsel, in each case stating that such consolidation,
combination, merger or transfer and such supplemental indenture
complies with this provision and that all conditions precedent
provided for herein relating to such transaction have been complied
with;
PROVIDED, that clauses (iii), (iv) and (v) above do not apply if, in the good
faith determination of the Board of Directors of the Company, whose
determination shall be evidenced by a Board Resolution, the principal purpose
of such transaction is to change the jurisdiction of incorporation of the
Company; and provided further that any such transaction shall not have as one
of its purposes the evasion of the foregoing limitations.
SECTION 5.02. SUCCESSOR SUBSTITUTED. Upon any consolidation
or merger, combination or any transfer of all or substantially all of the
assets of the Company in accordance with Section 5.01 of this Indenture, in
which the Company or the Restricted Subsidiary, as the case may be, is not
the continuing corporation, the successor Person formed by such consolidation
or combination or into which the Company is merged or to which such transfer
is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein; provided that
solely for computing Cumulative Available Cash Flow and Cumulative
Consolidated Interest Expense for purposes of clause (C)(1) of the first
paragraph of Section 4.04, the Cumulative Available Cash Flow and Cumulative
Consolidated Interest Expense of any Persons other than the Company and the
Restricted Subsidiaries (determined prior to the effective time of such
consolidation, merger or transfer of all or substantially all of the assets
of the Company) shall only be included for periods subsequent to the
effective time of such merger, consolidation, combination or transfer of
assets.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. The following events are
Events of Default under the Notes and this Indenture:
(a) defaults in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and
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payable at maturity, upon acceleration, upon Mandatory Redemption,
upon an optional redemption or otherwise;
(b) defaults in the payment of interest on any Note when the
same becomes due and payable, and such default continues for a period
of 30 days;
(c) defaults in the performance or breach of the provisions of
this Indenture applicable to mergers, consolidations and transfers of
all or substantially all of the assets of the Company or the failure to
make or consummate an Offer to Purchase in accordance with Section 4.10
or Section 4.12;
(d) defaults in the performance of or breaches any other
covenant or agreement of the Company in this Indenture or under the
Notes or in the Escrow Agreement (other than a default specified in
clause (a), (b) or (c) above) and such default or breach continues for
a period of 30 consecutive days after written notice by the Trustee or
the Holders of 25% or more in aggregate principal amount at maturity of
the Notes;
(e) there occurs with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an
outstanding principal amount of $10 million (or, to the extent non-U.S.
dollar denominated the U.S. Dollar Equivalent thereof) or more in the
aggregate for all such issues of all such Persons, whether such
Indebtedness now exists or shall hereafter be created, (I) an event of
default that has caused the holder thereof to declare such Indebtedness
to be due and payable prior to its Stated Maturity and such
Indebtedness has not been discharged in full or such acceleration has
not been rescinded or annulled within 30 days of such acceleration
and/or (II) the failure to make a principal payment at the Stated
Maturity and such defaulted payment shall not have been made, waived or
extended within 30 days of such payment default;
(f) any final judgment or order (not covered by insurance) for
the payment of money in excess of $10 million (or, to the extent
non-U.S. dollar denominated, the U.S. Dollar Equivalent thereof) in the
aggregate for all such final judgments or orders against all such
Persons (treating any deductibles, self-insurance or retention as not
so covered) shall be rendered against the Company or any Restricted
Subsidiary and shall not be paid or discharged,
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and there shall be any period of 30 consecutive days following entry
of the final judgment or order that causes the aggregate amount for all
such final judgments or orders outstanding and not paid or discharged
against all such Persons to exceed $10 million (or, to the extent
non-U.S. dollar denominated the U.S. Dollar Equivalent thereof) during
which a stay of enforcement of such final judgment or order, by reason
of a pending appeal or otherwise, shall not be in effect;
(g) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any
Significant Subsidiary in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
(B) appointment of a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property
and assets of the Company or any Significant Subsidiary or (C) the
winding up or liquidation of the affairs of the Company or any
Significant Subsidiary and, in each case, such decree or order shall
remain unstayed and in effect for a period of 30 consecutive days;
(h) the Company or any Significant Subsidiary (A) commences a
voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an
order for relief in an involuntary case under any such law, (B)
consents to the appointment of or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any Significant Subsidiary or for all or
substantially all of the property and assets of the Company or any
Significant Subsidiary or (C) effects any general assignment for the
benefit of creditors;
(i) the Company or the Escrow Guarantor shall assert or
acknowledge in writing that the Escrow Agreement or the Escrow Guaranty
is invalid or unenforceable or the Escrow Agreement (other than upon
satisfaction of the Financing Condition in accordance with its terms)
ceases to give the Trustee the liens, rights, powers, privileges and
security interests purported to be created thereby; or
(j) any License permitting the Company and/or any Significant
Subsidiary to operate in a Target Market shall be revoked (after all
due process expressly provided under
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applicable law with respect to the revocation of any such License) or
shall no longer be in effect or shall not be renewed.
SECTION 6.02. ACCELERATION. If an Event of Default (other
than an Event of Default specified in clause (g) or (h) of Section 6.01 that
occurs with respect to the Company) occurs and is continuing under this
Indenture, the Trustee or the Holders of at least 25% in aggregate principal
amount at maturity of the Notes, then outstanding, by written notice to the
Company (and to the Trustee if such notice is given by the Holders), may, and
the Trustee at the request of such Holders shall, declare the Accreted Value
of, premium, if any, and accrued interest on the Notes to be immediately due
and payable. Upon a declaration of acceleration, such Accreted Value of,
premium, if any, and accrued interest shall be immediately due and payable.
In the event of a declaration of acceleration because an Event of Default set
forth in clause (e) of Section 6.01 has occurred and is continuing, such
declaration of acceleration shall be automatically rescinded and annulled if
the event of default triggering such Event of Default pursuant to clause (e)
shall be remedied or cured by the Company or the relevant Restricted
Subsidiary or waived by the holders of the relevant Indebtedness within 60
days after the declaration of acceleration with respect thereto. If an Event
of Default specified in clause (g) or (h) of Section 6.01 occurs with respect
to the Company, the Accreted Value of, premium, if any, and accrued interest
on the Notes then outstanding shall ipso facto become and be immediately due
and payable without any declaration or other act on the part of the Trustee
or any Holder.
At any time after such a declaration of acceleration, but
before a judgment or decree for the payment of the money due has been
obtained by the Trustee, the Holders of at least a majority in principal
amount at maturity of the outstanding Notes by written notice to the Company
and to the Trustee, may waive all past Defaults and rescind and annul such
declaration of acceleration and its consequences if (i) all existing Events
of Default, other than the non-payment of the Accreted Value of, premium, if
any, and accrued interest on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (ii) the
rescission would not conflict with any judgment or decree of a court of
competent jurisdiction.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs
and is continuing, the Trustee may pursue any
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available remedy by proceeding at law or in equity to collect the payment of
principal of, premium, if any, or interest on the Notes or to enforce the
performance of any provision of the Notes or this Indenture.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding.
SECTION 6.04. WAIVER OF PAST DEFAULTS. Subject to Sections
6.02, 6.07 and 9.02, the Holders of at least a majority in principal amount
at maturity of the outstanding Notes, by notice to the Trustee, may waive an
existing Default or Event of Default and its consequences, except a Default
in the payment of principal of, premium, if any, or interest on any Note as
specified in clause (a) or (b) of Section 6.01 or in respect of a covenant or
provision of this Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other Default
or Event of Default or impair any right consequent thereto.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of at least
a majority in aggregate principal amount at maturity of the outstanding Notes
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising an trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture, that may involve the Trustee in
personal liability, or that the Trustee determines in good faith may be
unduly prejudicial to the rights of Holders of Notes not joining in the
giving of such direction and may take any other action it deems proper that
is not inconsistent with any such direction received from Holders of Notes.
SECTION 6.06. LIMITATION ON SUITS. A Holder may not
institute any proceeding, judicial or otherwise, with respect to this
Indenture or the Notes, or for the appointment of a receiver or trustee, or
for any other remedy hereunder unless:
(i) the Holder gives the Trustee written notice of a
continuing Event of Default;
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(ii) the Holders of at least 25% in aggregate principal
amount at maturity of outstanding Notes make a written request to the
Trustee to pursue the remedy;
(iii) such Holder or Holders offer the Trustee indemnity
satisfactory to the Trustee against any costs, liability or expense;
(iv) the Trustee does not comply with the request within 60
days after receipt of the request and the offer of indemnity; and
(v) during such 60-day period, the Holders of a majority in
aggregate principal amount at maturity of the outstanding Notes do not
give the Trustee a direction that is inconsistent with the request.
For purposes of Section 6.05 of this Indenture and this
Section 6.06, the Trustee shall comply with TIA Section 316(a) in making any
determination of whether the Holders of the required aggregate principal
amount at maturity of outstanding Notes have concurred in any request or
direction of the Trustee to pursue any remedy available to the Trustee or the
Holders with respect to this Indenture or the Notes or otherwise under the
law.
A Holder may not use this Indenture to prejudice the rights
of another Holder or to obtain a preference or priority over such other
Holder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, the right of any
Holder of a Note to receive payment of the Accreted Value of, premium, if
any, or interest on, such Note or to bring suit for the enforcement of any
such payment, on or after the due date expressed in the Notes, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of
Default in payment of principal, premium or interest specified in clause (a),
(b) or (c) of Section 6.01 occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the
Company or any other obligor of the Notes for the whole amount of principal,
premium, if any, and accrued interest remaining unpaid, together with
interest on overdue principal, premium, if any, and, to the extent that
payment of such interest is lawful, interest on overdue installments of
interest, in each case at the
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rate specified in the Notes, and such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. The Trustee
may file such proofs of claim and other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due
the Trustee under Section 7.07) and the Holders allowed in any judicial
proceedings relative to the Company (or any other obligor of the Notes), its
creditors or its property and shall be entitled and empowered to collect and
receive any monies, securities or other property payable or deliverable upon
conversion or exchange of the Notes or upon any such claims and to distribute
the same, and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is
hereby authorized by each Holder to make such payments to the Trustee and, in
the event that the Trustee shall consent to the making of such payments
directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation expenses, disbursements and advances of the Trustee,
its agent and counsel, and any other amounts due the Trustee under Section
7.07. Nothing herein contained shall be deemed to empower the Trustee to
authorize or consent to, or accept or adopt on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. PRIORITIES. If the Trustee collects any money
pursuant to this Article Six, including such amounts held pursuant to the
Escrow Agreement it shall pay out the money in the following order:
First: to the Trustee for all amounts due under Section 7.07;
Second: to Holders for amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in respect of which
or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and payable
on such Notes for principal, premium, if any, and interest, respectively; and
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Third: to the Escrow Guarantor or any other obligors of
the Notes, as their interests may appear, or as a court of competent
jurisdiction may direct.
The Trustee, upon prior written notice to the Company, may
fix a record date and payment date for any payment to Holders 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 Trustee, a court
may require any party litigant in such suit to file an undertaking to pay the
costs of the suit, and the court may assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in the
suit having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section 6.11 does not apply to a suit by the
Trustee, a suit by a Holder pursuant to Section 6.07 of this Indenture, or a
suit by Holders of more than 10% in principal amount at maturity of the
outstanding Notes.
SECTION 6.12. RESTORATION OF RIGHTS AND REMEDIES. If the
Trustee or any Holder has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then, and in every such case, subject to any determination in
such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Company, Trustee and the Holders shall
continue as though no such proceeding had been instituted.
SECTION 6.13. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or wrongfully taken Notes in Section 2.09, 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.
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SECTION 6.14. DELAY OR OMISSION NOT WAIVER. No delay or
omission of the Trustee or of any Holder to exercise an right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article Six or by law to the Trustee or
to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. GENERAL. The duties and responsibilities of
the Trustee shall be as provided by the TIA and as set forth herein.
Notwithstanding the foregoing, no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the
conduct or affecting the liability of or affording protection to the Trustee
shall be subject to the provisions of this Article Seven.
SECTION 7.02. CERTAIN RIGHTS OF TRUSTEE. Subject to TIA
Sections 315(a) through (d):
(i) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document (whether in its original or facsimile form)
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;
(ii) before the Trustee acts or refrains from acting, it may
require an Officers' Certificate and/or an Opinion of Counsel, which
shall conform to Section 10.03 or Section 10.04, as the case may be.
The Trustee shall not be
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liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion;
(iii) the Trustee may act through attorneys and agents of its
selection and the advice of such attorneys and agents shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon. The Trustee shall not be responsible for the misconduct or
negligence of any agent appointed with due care;
(iv) 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;
(v) 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 its rights or powers or for any action it takes or omits to take
in accordance with the direction of the Holders of a majority in
principal amount at maturity of the outstanding Notes relating to the
time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; provided that the Trustee's
conduct does not constitute gross negligence or bad faith;
(vi) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a making be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, conclusively rely upon an
Officer's Certificate; and
(vii) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation,
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it shall be entitled to examine the books, records and premises of the
Company personally or by agent or attorney at the sole cost of the
Company and shall incur no liability or additional liability of any
kind by reason of such inquiry or investigation.
(viii) the Trustee shall have no duty to inquire as to the
performance of the Company's covenants in Article Four. In addition,
the Trustee shall not be deemed to have knowledge of any Default or
Event of Default except (i) any Event of Default occurring pursuant to
Sections 6.01 and 4.01 or (ii) any Default or Event of Default of which
the Trustee shall have received written notification, or obtained
actual knowledge.
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 its Affiliates with the same
rights it would have if it were not the Trustee. Any Agent may do the same
with like rights.
However, the Trustee is subject to TIA Sections 310(b) and 311.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee (i) makes
no representation as to the validity or adequacy of this Indenture or the
Notes, (ii) shall not be accountable for the Company's use or application of
the proceeds from the Notes and (iii) shall not be responsible for any
statement in the Notes other than its certificate of authentication.
SECTION 7.05. NOTICE OF DEFAULT. If any Default or any
Event of Default occurs and is continuing and if such Default or Event of
Default is actually known to a Responsible Officer of the Trustee, the
Trustee shall mail to each Holder in the manner and to the extent provided in
TIA Section 313(c) notice of the Default or Event of Default within 45 days
after it occurs, unless such Default or Event of Default has been cured;
provided, however, that, except in the case of a default in the payment of
the principal of, premium, if any, or interest on any Note, the Trustee shall
be protected in withholding such notice if and so long as the Board of
Directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determine that the
withholding of such notice is in the interest of the Holders.
SECTION 7.06. REPORTS BY TRUSTEE TO HOLDERS. Within 60 days
after each May 15, beginning with May 15, 1999, the
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Trustee shall mail to each Holder as provided in TIA Section 313(c) a brief
report dated as of such May 15, if required by TIA Section 313(a).
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company shall
pay to the Trustee such compensation as shall be agreed upon in writing for
its services. The compensation of the Trustee shall not be limited by any law
on compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable out-of-pocket expenses and
advances incurred or made by the Trustee. Such expenses shall include the
reasonable compensation and expenses of the Trustee's agents and counsel.
The Company shall indemnify each of the Trustee and any
predecessor Trustee for, and hold it harmless against, any and all claim,
damage, loss or liability or expense, including taxes (other than taxes based
upon, measured by or determined by the income of the Trustee) incurred by it
without negligence or bad faith on its part in connection with the acceptance
or administration of this Indenture and its duties under this Indenture and
the Notes, including the costs and expenses of defending itself against any
claim or liability and of complying with any process served upon it or any of
its officers in connection with the exercise or performance of any of its
powers or duties under this Indenture and the Notes.
To secure the Company's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Notes on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
money or property held in trust to pay principal of, premium, if any, and
interest on particular Notes.
If the Trustee incurs expenses or renders services after
the occurrence of an Event of Default specified in clause (g) or (h) of
Section 6.01, the expenses and the compensation for the services will be
intended to constitute expenses of administration under Title 11 of the
United States Bankruptcy Code or any applicable foreign, federal or state law
for the relief of debtors.
The provisions of this Section 7.07 shall survive the
termination of this Indenture.
SECTION 7.08. REPLACEMENT OF TRUSTEE. A resignation or
removal of the Trustee and appointment of a successor Trus-
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tee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section 7.08.
The Trustee may resign at any time by so notifying the
Company in writing at least 30 days prior to the date of the proposed
resignation. The Holders of a majority in principal amount at maturity of the
outstanding Notes may remove the Trustee by so notifying the Trustee in
writing and may appoint a successor Trustee with the consent of the Company.
The Company may remove the Trustee if: (i) the Trustee is no longer eligible
under Section 7.10; (ii) the Trustee is adjudged a bankrupt or an insolvent;
(iii) a receiver or other public officer takes charge of the Trustee or its
property; or (iv) 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 at maturity of
the outstanding Notes may appoint a successor Trustee to replace the
successor Trustee appointed by the Company. If the successor Trustee does not
deliver its written acceptance required by the next succeeding paragraph of
this Section 7.08 within 30 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of a majority in
principal amount at maturity of the outstanding Notes may, at the expense of
the Company, petition, at the expense of the Company, any court of competent
jurisdiction for 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. Immediately after
the delivery of such written acceptance, subject to the lien provided in
Section 7.07, (i) the retiring Trustee shall transfer all property held by it
as Trustee to the successor Trustee, (ii) the resignation or removal of the
retiring Trustee shall become effective and (iii) the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
If the Trustee is no longer eligible under Section 7.10,
any Holder who satisfies the requirements of TIA Section 310(b) may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
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The Company shall give notice of any resignation and any
removal of the Trustee and each appointment of a successor Trustee to all
Holders. Each notice shall include the name of the successor Trustee and the
address of its Corporate Trust Office.
Notwithstanding replacement of the Trustee pursuant to this
Section 7.08, the Company's obligation under Section 7.07 shall continue for
the benefit of the retiring Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER, ETC. If the
Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation or
national banking association, the resulting, surviving or transferee
corporation or national banking association without any further act shall be
the successor Trustee with the same effect as if the successor Trustee had
been named as the Trustee herein.
SECTION 7.10. ELIGIBILITY. This Indenture shall always have
a Trustee who satisfies the requirements of TIA Section 310(a)(1). The
Trustee shall have a combined capital and surplus of at least $25,000,000 as
set forth in its most recent published annual report of condition.
SECTION 7.11. MONEY HELD IN TRUST. The Trustee shall not be
liable for interest on any money received by it except as the Trustee may
agree with the Company. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law and except
for money held in trust under Article Eight of this Indenture.
SECTION 7.12. WITHHOLDING TAXES. The Trustee, as agent for
the Company, shall exclude and withhold from each payment of principal and
interest and other amounts due hereunder or under the Notes any and all
withholding taxes applicable thereto as required by law. The Trustee agrees
to act as such withholding agent and, in connection therewith, whenever any
present or future taxes or similar charges are required to be withheld with
respect to any amounts payable in respect of the Notes, to withhold such
amounts and timely pay the same to the appropriate authority in the name of
and on behalf of the Holders of the Notes, that it will file any necessary
withholding tax returns or statements when due. The Company or the Trustee
shall, as promptly as possible after the payment of the taxes described
above, deliver to each holder of a Note appropriate documentation showing the
payment thereof,
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together with such additional documentary evidence as such holders may
reasonably request from time to time.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. TERMINATION OF COMPANY'S OBLIGATIONS.
Except as otherwise provided in this Section 8.01, the Company may terminate
its obligations under the Notes and this Indenture if:
(i) all Notes previously authenticated and delivered (other
than destroyed, lost or stolen Notes that have been replaced or Notes
that are paid pursuant to Section 4.01 or Notes for whose payment money
or securities have theretofore been held in trust and thereafter repaid
to the Company, as provided in Section 8.05) have been delivered to the
Trustee for cancellation and the Company has paid all sums payable by
it hereunder; or
(ii) (A) the Notes mature within one year or all of them are
to be called for redemption within one year under arrangements
satisfactory to the Trustee for giving the notice of redemption, (B)
the Company irrevocably deposits in trust with the Trustee during such
one-year period, under the terms of an irrevocable trust agreement in
form and substance satisfactory to the Trustee, as trust funds solely
for the benefit of the Holders for that purpose, money or U.S.
Government Obligations sufficient (in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee), without
consideration of any reinvestment of any interest thereon, to pay
principal, premium, if, any, and interest on the Notes to maturity or
redemption, as the case may be, and to pay all other sums payable by it
hereunder, (C) no Default or Event of Default with respect to the Notes
shall have occurred and be continuing on the date of such deposit, (D)
such deposit will not result in a breach or violation of, or constitute
a default under, this Indenture or any other agreement or instrument to
which the Company is a party or by which it is bound and (E) the
Company has delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel, in each case stating that all conditions precedent
provided for herein relating to the satis-
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faction and discharge of this Indenture have been complied with.
With respect to the foregoing clause (i), the Company's
obligations under Section 7.07 shall survive. With respect to the foregoing
clause (ii), the Company's obligations in Sections 2.02, 2.03, 2.04, 2.05,
2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.04, 8.05 and 8.06
shall survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. After
any such irrevocable deposit, the Trustee upon request shall acknowledge in
writing the discharge of the Company's obligations under the Notes and this
Indenture except for those surviving obligations specified above.
SECTION 8.02. DEFEASANCE AND DISCHARGE OF INDENTURE. The
Company will be deemed to have paid and will be discharged from any and all
obligations in respect of the Notes on the 92nd day after the date of the
deposit referred to in clause (A) of this Section 8.02, and the provisions of
this Indenture will no longer be in effect with respect to the Notes, and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same, except as to (i) rights of registration of transfer
and exchange, (ii) substitution of apparently mutilated, defaced, destroyed,
lost or stolen Notes, (iii) rights of Holders to receive payments of
principal thereof and interest thereon, (iv) the Company's obligations under
Section 4.02, (v) the rights, obligations and immunities of the Trustee
hereunder and (vi) the rights of the Holders as beneficiaries of this
Indenture with respect to the property so deposited with the Trustee payable
to all or any of them; provided that the following conditions shall have been
satisfied:
(A) with reference to this Section 8.02, the Company has
irrevocably deposited or caused to be irrevocably
deposited with the Trustee (or another trustee
satisfying the requirements of Section 7.10 of this
Indenture) and conveyed all right, title and interest
for the benefit of the Holders, under the terms of an
irrevocable trust agreement in form and substance
satisfactory to the Trustee as trust funds in trust,
specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal of,
premium, if any, and interest, if any, on the Notes, and
dedicated solely to the benefit of the Holders, in and to
(1) money in an amount, (2) U.S. Government Obligations
that,
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through the payment of interest, premium, if any, and
principal in respect thereof in accordance with their
terms, will provide, not later than one day before the
due date of any payment referred to in this clause (A),
money in an amount or (3) a combination thereof in an
amount sufficient, in the opinion of a nationally
recognized firm of independent public accountants
expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, without
consideration of the reinvestment of such interest and
after payment of all foreign, federal, state and local
taxes or other charges and assessments in respect thereof
payable by the Trustee, the principal of, premium, if
any, and accrued interest on the outstanding Notes at the
Stated Maturity of such principal or interest; provided
that the Trustee shall have been irrevocably instructed
to apply such money or the proceeds of such U.S.
Government Obligations to the payment of such principal,
premium, if any, and interest with respect to the Notes;
(B) such deposit will not result in a breach or violation
of, or constitute a Default under, this Indenture or
any other agreement or instrument to which the
Company is a party or by which it is bound;
(C) immediately after giving effect to such deposit on a
pro forma basis, no Default shall have occurred and
be continuing on the date of such deposit or during
the period ending on the 92nd day after such date of
deposit;
(D) the Company shall have delivered to the Trustee (1)
either (x) a ruling directed to the Trustee received
from the Internal Revenue Service to the effect that
the Holders will not recognize income, gain or loss for
federal income tax purposes as a result of the Company's
exercise of its option under this Section 8.02 and will
be subject to U.S. federal income tax on the same amount
and in the same manner and at the same times as would
have been the case if such option had not been exercised
or (y) an Opinion of Counsel to the same effect as the
ruling described in clause (x) above accompanied by a
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ruling to that effect published by the Internal Revenue
Service, unless there has been a change in the applicable
U.S. federal income tax law since the date of this
Indenture such that a ruling from the Internal Revenue
Service is no longer required, (2) an Opinion of Counsel
in the Netherlands and the U.S., as applicable, to the
effect that (x) the creation of the defeasance trust
does not violate the Investment Company Act of 1940,
(y) the deposit of the trust funds will not constitute a
fraudulent conveyance or preferential transfer under
any applicable bankruptcy, insolvency, reorganization
or similar law affecting creditors' rights generally
under any Netherlands or U.S. Federal or state law, and
that the Trustee has a perfected security interest in
such trust fund for the ratable benefit of the Holders of
the Notes and (z) payments from the defeasance trust will
be free and exempt from any and all withholding and
other income taxes of whatever nature imposed or levied
by or on behalf of the Netherlands or any political
subdivision thereof or therein having the power to tax;
and
(E) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case
stating that all conditions precedent provided for
herein relating to the defeasance contemplated by
this Section 8.02 have been complied with.
Subsequent to the end of such 92nd day period with respect
to this Section 8.02, the Company's obligations in Sections 2.02, 2.03, 2.04,
2.05, 2.06, 2.07, 2.08, 2.09, 2.14, 4.01, 4.02, 7.07, 7.08, 8.05 and 8.06
shall survive until the Notes are no longer outstanding. Thereafter, only the
Company's obligations in Sections 7.07, 8.05 and 8.06 shall survive. If and
when a ruling from the Internal Revenue Service or an Opinion of Counsel
referred to in clause (D)(1) of this Section 8.02 is able to be provided
specifically without regard to, and not in reliance upon, the continuance of
the Company's obligations under Section 4.01, then the Company's obligations
under such Section 4.01 shall cease upon delivery to the Trustee of such
ruling or Opinion of Counsel and compliance with the other conditions
precedent provided for herein relating to the defeasance contemplated by this
Section 8.02.
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After any such irrevocable deposit, the Trustee upon
request shall acknowledge in writing the discharge of the Company's
obligations under the Notes and this Indenture except for those surviving
obligations in the immediately preceding paragraph.
SECTION 8.03. DEFEASANCE OF CERTAIN OBLIGATIONS. The
Company may omit to comply with any term, provision or condition set forth in
clause (iv) under Section 5.01 and Sections 4.03 through 4.10, Section 4.12,
and Section 4.20, clause (c) under Section 6.01 with respect to such clause
(iv) under Section 5.01, clause (d) under Section 6.01 and clauses (e) and
(f) under Section 6.01 shall be deemed not to be Events of Default, in each
case with respect to the outstanding Notes if:
(i) with reference to this Section 8.03, the Company has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee (or another trustee satisfying the requirements of Section
7.10) and conveyed all right, title and interest to the Trustee for the
benefit of the Holders, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee as trust
funds in trust, specifically pledged to the Trustee for the benefit of
the Holders as security for payment of the principal or premium, if
any, and interest, if any, on the Notes, and dedicated solely to the
benefit of the Holders, in and to (A) money in an amount, (B) U.S.
Government Obligations that, through the payment of interest and
principal in respect thereof in accordance with their terms, will
provide, not later than one day before the due date of any payment
referred to in this clause (i), money in an amount or (C) a combination
thereof in an amount sufficient, in the opinion of an internationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, without consideration of the reinvestment of such interest
and after payment of all federal, state and local taxes or other
charges and assessments in respect thereof payable by the Trustee, the
principal of, premium, if any, and interest on the outstanding Notes on
the Stated Maturity of such principal or interest; provided that the
Trustee shall have been irrevocably instructed to apply such money or
the proceeds of such U.S. Government Obligations to the payment of such
principal, premium, if any, and interest with respect to the Notes;
(ii) such deposit will not result in a breach or violation
of, or constitute a default under, this Indenture
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or any other agreement or instrument to which the Company is a party
or by which it is bound;
(iii) no Default or Event of Default shall have occurred and
be continuing on the date of such deposit;
(iv) the Company has delivered to the Trustee an Opinion of
Counsel, in the Netherlands and the U.S., as applicable, to the effect
that (A) the creation of the defeasance trust does not violate the
Investment Company Act of 1940, (B) the deposit of the trust funds will
not constitute a fraudulent conveyance or preferential transfer under
any applicable bankruptcy, insolvency, reorganization or similar law
affecting creditors' rights generally under any Netherlands or U.S.
Federal or state law or the laws of any other applicable jurisdiction,
and that the Trustee has a perfected security interest in such trust
fund for the ratable benefit of the Holders of the Notes, (C) payments
from the defeasance trust will be free and exempt from any and all
withholding and other income taxes of whatever nature imposed or levied
by or on behalf of the Netherlands or any political subdivision thereof
or therein having the power to tax; (D) the Holders will not recognize
income, gain or loss for U.S. federal income tax purposes as a result
of such deposit and defeasance of certain obligations and will be
subject to federal income tax on the same amount and in the same manner
and at the same times as would have been the case if such deposit and
defeasance had not occurred;
(v) if the Notes are then listed on a national securities
exchange, including the Luxembourg Exchange, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that such
deposit defeasance and discharge will not cause the Notes to be
delisted; and
(vi) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, in each case stating that all
conditions precedent provided for herein relating to the defeasance
contemplated by this Section 8.03 have been complied with.
SECTION 8.04. APPLICATION OF TRUST MONEY. Subject to
Section 8.06, the Trustee or Paying Agent shall hold in trust money or U.S.
Government Obligations deposited with it pursuant to Section 8.01, 8.02 or
8.03, as the case may be, and shall apply the deposited money and the money
from U.S. Government Obligations in accordance with the Notes and this
Inden-
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ture to the payment of principal of, premium, if any, and interest on the
Notes; but such money need not be segregated from other funds except to the
extent required by law.
SECTION 8.05. REPAYMENT TO COMPANY. Subject to Sections
7.07, 8.01, 8.02 and 8.03, the Trustee and the Paying Agent shall promptly
pay to the Company upon request set forth in an Officers' Certificate any
excess money held by them at any time and thereupon shall be relieved from
all liability with respect to such money. The Trustee and the Paying Agent
shall pay to the Company upon request any money held by them for the payment
of principal, premium, if any, or interest that remains unclaimed for two
years; provided that the Trustee or such Paying Agent before being required
to make any payment shall cause to be published at the expense of the Company
once in a newspaper of general circulation in the City of New York or mail to
each Holder entitled to such money at such Holder's address (as set forth in
the Security Register) notice that such money remains unclaimed and that
after a date specified therein (which shall be at least 30 days from the date
of such publication or mailing) any unclaimed balance of such money then
remaining will be repaid to the Company. After payment to the Company,
Holders entitled to such money must look to the Company for payment as
general creditors unless an applicable law designates another Person, and all
liability of the Trustee and such Paying Agent with respect to such money
shall cease.
SECTION 8.06. REINSTATEMENT. If the Trustee or Paying Agent
is unable to apply any money or U.S. Government Obligations in accordance
with Section 8.01, 8.02 or 8.03, as the case may be, by reason of any legal
proceeding or by reason of any order or judgment of any court or governmental
authority enjoining, restraining or otherwise prohibiting such application,
the Company's obligations under this Indenture and the Notes shall be revived
and reinstated as though no deposit had occurred pursuant to Section 8.01,
8.02 or 8.03, as the case may be, until such time as the Trustee or Paying
Agent is permitted to apply all such money or U.S. Government Obligations in
accordance with Section 8.01, 8.02 or 8.03, as the case may be; provided
that, if the Company has made any payment of principal of, premium, if any,
or interest on any Notes because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Notes to
receive such payment from the money or U.S. Government Obligations held by
the Trustee or Paying Agent.
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ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company, when
authorized by a resolution of its Board of Directors, and the Trustee may
amend or supplement this Indenture or the Notes without notice to or the
consent of any Holder:
(1) to cure any ambiguity, omission defect or inconsistency in
this Indenture; provided that such amendments or supplements shall not
adversely affect the interests of the Holders in any material respect;
(2) to comply with Article Five;
(3) to comply with any requirements of the Commission in
connection with the qualification of this Indenture under the TIA;
(4) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee; or
(5) to provide for the assumption of the Indenture by a
successor corporation as provided in Section 5.01;
(6) to add Guaranties in accordance with Section 4.07;
(7) to make any change that, in the good faith opinion of the
Board of Directors as evidenced by a Board Resolution, does not
materially and adversely affect the rights of any Holder.
(8) to secure the Notes in accordance with Section 4.09;
(9) to add covenants of the Company for the benefit of the
Holders;
(10) to surrender any right or power conferred upon the
Company;
SECTION 9.02. WITH CONSENT OF HOLDERS. Subject to Sections
6.04 and 6.07 and without prior notice to the Holders, the Company, when
authorized by its Board of Directors (as evidenced by a Board Resolution),
and the Trustee may amend this
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Indenture and the Notes with the written consent of the Holders of a majority
in aggregate principal amount at maturity of the Notes then outstanding, and
the Holders of a majority in aggregate principal amount at maturity of the
Notes then outstanding by written notice to the Trustee may waive future
compliance by the Company with any provision of this Indenture or the Notes.
Notwithstanding the provisions of this Section 9.02,
without the consent of each Holder affected, an amendment or waiver,
including a waiver pursuant to Section 6.04, may not:
(i) change the Stated Maturity of the principal of, or
any installment of interest on, any Note,
(ii) reduce the Accreted Value of, or premium, if any, or
interest on, any Note,
(iii) change the place or currency of payment of principal of,
or premium, if any, or interest on, any Note or adversely affect any
right of repayment at the option of any Holder of any Note,
(iv) impair the right to institute suit for the enforcement
of any payment on or after the Stated Maturity (or, in the case of a
redemption, on or after the Redemption Date) of any Note,
(v) reduce the above-stated percentage of outstanding Notes
the consent of whose Holders is necessary to modify or amend this
Indenture,
(vi) waive a Default in the payment of principal of, premium,
if any, or interest on the Notes,
(vii) modify any of the provisions of this Section 9.02,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Note affected thereby,
(viii) reduce the percentage or aggregate principal amount at
maturity of outstanding Notes which are required to consent to a waiver
of compliance with certain provisions of this Indenture or for waiver
of certain defaults,
(ix) make any change that would result in the Company being
required to make any deduction or withholding from payments in respect
of the Notes,
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(x) release any Subsidiary Guarantor from any of its
obligations under its Subsidiary Guaranty or this Indenture or release
the Escrow Guaranty from any of its obligations under the Escrow
Guaranty or the Indenture, in each case other than in accordance with
the terms of this Indenture and the Escrow Agreement,
(xi) release any Lien Securing the Notes, other than in
accordance with the terms of this Indenture,
(xii) or make any change to this Indenture that would
adversely affect the rights of all Holders to receive Additional
Amounts as described under Section 4.21.
It shall not be necessary for the consent of the Holders
under this Section 9.02 to approve the particular form of any proposed
amendment, supplement or waiver, but it shall be sufficient if such consent
approves the substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to the Holders affected
thereby a notice briefly describing the amendment, supplement or waiver. The
Company will mail supplemental indentures to Holders upon request. 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 supplemental
indenture or waiver.
SECTION 9.03. REVOCATION AND EFFECT OF CONSENT. Until an
amendment or waiver becomes effective, a consent to it by a Holder is a
continuing consent by the Holder and every subsequent Holder of a Note or
portion of a Note that evidences the same debt as the Note of the consenting
Holder, even if notation of the consent is not made on any Note. However, any
such Holder or subsequent Holder may revoke the consent as to its Note or
portion of its Note. Such revocation shall be effective only if the Trustee
receives the notice of revocation before the date the amendment, supplement
or waiver becomes effective. An amendment, supplement or waiver shall become
effective on receipt by the Trustee of written consents from the Holders of
the requisite percentage in principal amount of the outstanding Notes.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent to
any amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last two sentences of the immediately preceding
paragraph, those persons who were
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Holders at such record date (or their duly designated proxies) and only those
persons shall be entitled to consent to such amendment, supplement or waiver
or to revoke any consent previously given, whether or not such persons
continue to be Holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.
After an amendment, supplement or waiver becomes effective,
it shall bind every Holder unless it is of the type described in any of
clauses (i) through (xii) of Section 9.02. In case of an amendment or waiver
of the type described in clauses (i) through (xii) of Section 9.02, the
amendment or waiver shall bind each Holder who has consented to it and every
subsequent Holder of a Note that evidences the same indebtedness as the Note
of the consenting Holder.
SECTION 9.04. NOTATION ON OR EXCHANGE OF NOTES. If an
amendment, supplement or waiver changes the terms of a Note, the Trustee may
require the Holder to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Note about the changed terms and return it to the
Holder and the Trustee may place an appropriate notation on any Note
thereafter authenticated. Alternatively, if the Company or the Trustee so
determines, the Company in exchange for the Note shall issue and the Trustee
shall authenticate a new note that reflects the changed terms.
SECTION 9.05. TRUSTEE TO SIGN AMENDMENTS, ETC. The Trustee
shall be entitled to receive, and shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of any amendment, supplement
or waiver authorized pursuant to this Article Nine is authorized and
permitted by this Indenture. Subject to the preceding sentence, the Trustee
shall sign such amendment, supplement or waiver if the same does not
adversely affect the rights of the Trustee. The Trustee may, but shall not be
obligated to, execute any such amendment, supplement or waiver that affects
the Trustee's own rights, duties or immunities under this Indenture or
otherwise.
SECTION 9.06. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article Nine shall conform
to the requirement of the TIA as then in effect.
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ARTICLE TEN
ESCROW GUARANTEE OF SECURITIES
SECTION 10.01. ESCROW GUARANTY. Subject to the provisions
of this Article Ten, the Escrow Guarantor hereby unconditionally and
irrevocably guarantees on a senior basis (such guarantee to be referred to
herein as the "Escrow Guaranty") to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and their successors,
irrespective of the validity and enforceability of this Indenture, the Notes
or the obligations of the Company to the Holders or the Trustee hereunder or
thereunder, that: (a) the principal of, premium, if any, and interest on the
Notes (and any Additional Amounts payable thereon) will be duly and
punctually paid in full when due, whether at maturity, by acceleration or
otherwise, and interest on the overdue principal and (to the extent permitted
by law) interest, if any, on the Notes and all other obligations of the
Company to the Holders or the Trustee hereunder or thereunder (including
amounts due the Trustee under Section 7.7 hereof) and all other obligations
under this Indenture (the "Indenture Obligations") will be promptly paid in
full or performed, all in accordance with the terms of this Indenture; and
(b) in case of any extension of time of payment or renewal of any Notes or
any of such other Indenture Obligations, the same will be promptly paid in
full when due or performed in accordance with the terms of the extension or
renewal, whether at the maturity date of the Notes, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed, or failing
performance of any other obligation of the Company to the Holders, for
whatever reason, the Escrow Guarantor will be obligated to pay, or to perform
or cause the performance of, the same immediately. An Event of Default under
this Indenture or the Notes shall constitute an event of default under the
Escrow Guaranty, and shall entitle the Holders of Notes to accelerate the
obligations of the Escrow Guarantor in the same manner and to the same extent
as the obligations of the Company.
The Escrow Guarantor hereby agrees that its obligations
hereunder shall be unconditional, irrespective of the validity, regularity or
enforceability of the Notes or this Indenture, the absence of any action to
enforce the same, any waiver or consent by any holder of the Notes with
respect to any provisions hereof or thereof, the recovery of any judgment
against the Company, any action to enforce the same, whether or not an Escrow
Guaranty is affixed to any particular Note, or any other circumstance which
might otherwise constitute a legal
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or equitable discharge or defense of the Escrow Guarantor. The Escrow
Guarantor hereby waives the benefit of diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest, notice and all demands whatsoever and covenants that
its Escrow Guaranty will not be discharged except by complete performance of
the obligations contained in the Notes, this Indenture and this Escrow
Guaranty. This Escrow Guaranty is a guarantee of payment and not of
collection. If any Holder or the Trustee is required by any court or
otherwise to return to the Company or any custodian, trustee, liquidator or
other similar official acting in relation to the Company, any amount paid by
the Company to the Trustee or such Holder, this Escrow Guaranty, to the
extent theretofore discharged, shall be reinstated in full force and effect.
The Escrow Guarantor further agrees that, as between it, on the one hand, and
the Holders of Notes and the Trustee, on the other hand, (a) subject to this
Article Ten, the maturity of the obligations guaranteed hereby may be
accelerated as provided in Article Six hereof for the purposes of this Escrow
Guaranty, notwithstanding any stay, injunction or other prohibition
preventing such acceleration in respect of the obligations guaranteed hereby,
and (b) in the event of any acceleration of such obligations as provided in
Article Six hereof, such obligations (whether or not due and payable) shall
forthwith become due and payable by the Escrow Guarantor for the purpose of
this Escrow Guaranty.
SECTION 10.02. EXECUTION AND DELIVERY OF THE ESCROW
GUARANTY. To further evidence the Escrow Guaranty set forth in Section 10.01,
the Escrow Guarantor hereby agrees that a notation of such Escrow Guaranty,
substantially in the form included in Exhibit H of this Indenture, shall be
endorsed on each Note authenticated and delivered by the Trustee executed by
manual signature of an officer (or authorized signatory by virtue of a power
of attorney or other similar instrument) of the Escrow Guarantor. The
validity and enforceability of the Escrow Guaranty shall not be affected by
the fact that it is not affixed to any particular Note.
The Escrow Guarantor hereby agrees that its Escrow Guaranty
set forth in Section 10.01 shall remain in full force and effect
notwithstanding any failure to endorse on each Note a notation of such Escrow
Guaranty.
If an officer of the Escrow Guarantor whose signature is on
this Indenture or an Escrow Guaranty no longer holds that office at the time
a Trustee authenticates the Note on which
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such Escrow Guaranty is endorsed or at any time thereafter, such Escrow
Guarantor's Subsidiary Guaranty of such Note shall be valid nevertheless.
The delivery of any Note by a Trustee, after the
authentication thereof hereunder, shall constitute due delivery of the Escrow
Guaranty set forth in this Indenture on behalf of the Escrow Guarantor.
SECTION 10.03. RELEASE OF THE ESCROW GUARANTOR. (a)
Notwithstanding anything herein to the contrary, on the Release Date, the
Escrow Guarantor will automatically and unconditionally be released and
discharged from all obligations under its Escrow Guaranty; PROVIDED, HOWEVER,
that nothing herein shall modify the provisions of Section 4.07 that may
require, among other things, the Escrow Guarantor to execute a Subsidiary
Guaranty if it is required to do so under such Section 4.07.
(b) The Trustee shall deliver an appropriate instrument
evidencing the release of the Escrow Guarantor upon receipt of a request of
the Company accompanied by an Officers' Certificate and an Opinion of Counsel
certifying as to the compliance with this Section 10.03.
The Trustee shall execute any documents reasonably
requested by the Company or the Escrow Guarantor in order to evidence the
release of the Escrow Guarantor from its obligations under its Subsidiary
Guaranty endorsed on the Notes and under this Article Ten.
SECTION 10.04. WAIVER OF SUBROGATION. The Escrow Guarantor
hereby irrevocably waives and agrees not to exercise any claim or other
rights which it may now or hereafter acquire against the Company that arise
from the existence, payment, performance or enforcement of the Company's
obligations under the Notes or this Indenture and the Escrow Guarantor's
obligations under this Subsidiary Guarantee and this Indenture, in any such
instance including, without limitation, any right of subrogation,
reimbursement, exoneration, contribution, indemnification, and any right to
participate in any claim or remedy of the Guaranteed Parties against the
Company, whether or not such claim, remedy or right arises in equity, or
under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to the
Escrow Guar-
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antor in violation of the preceding sentence and any amounts owing to the
Trustee or the Holders of Notes under the Notes, this Indenture, or any other
document or instrument delivered under or in connection with such agreements
or instruments, shall not have been paid in full, such amount shall have been
deemed to have been paid to the Escrow Guarantor for the benefit of, and held
in trust for the benefit of, the Guaranteed Parties and shall forthwith be
paid to the Trustee for the benefit of such Holders to be credited and
applied to the obligations in favor of the Guaranteed Parties, whether
matured or unmatured, in accordance with the terms of this Indenture. The
Escrow Guarantor acknowledges that it will receive direct and indirect
benefits from the financing arrangements contemplated by this Indenture and
that the waiver set forth in this Section 10.04 is knowingly made in
contemplation of such benefits.
SECTION 10.05. IMMEDIATE PAYMENT. The Escrow Guarantor
agrees to make immediate payment to the Trustee on behalf of the Guaranteed
Parties of all Guaranteed Obligations owing or payable to the respective
Guaranteed Parties upon receipt of a demand for payment therefor by the
Trustee to the Escrow Guarantor in writing.
SECTION 10.06. NO SET-OFF. Each payment to be made by the
Escrow Guarantor hereunder in respect of the Guaranteed Obligations shall be
payable in the currency or currencies in which such Guaranteed Obligations
are denominated, and shall be made without set-off, counterclaim, reduction
or diminution of any kind or nature.
SECTION 10.07. OBLIGATIONS ABSOLUTE. The obligations of the
Escrow Guarantor hereunder are and shall be absolute and unconditional and
any monies or amounts expressed to be owing or payable by the Escrow
Guarantor hereunder which may not be recoverable from the Subsidiary
Guarantor on the basis of a guarantee shall be recoverable from the Escrow
Guarantor as a primary obligor and principal debtor in respect thereof.
SECTION 10.08. OBLIGATIONS CONTINUING. Subject to the
provisions of Section 10.03, the obligations of the Escrow Guarantor
hereunder shall be continuing and shall remain in full force and effect until
all the Guaranteed Obligations have been paid and satisfied in full. The
Escrow Guarantor agrees with the Trustee that it will from time to time
deliver to the Trustee suitable acknowledgments of this continued liability
hereunder and under any other instrument or instruments in such form as
counsel to the Trustee may advise and as will prevent any action brought
against it in respect of any default
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hereunder being barred by any statute of limitations now or hereafter in
force in the jurisdiction of incorporation or organization of the Escrow
Guarantor or elsewhere and, in the event of the failure of the Escrow
Guarantor so to do, it hereby irrevocably appoints the Trustee and the
attorneys and agents of the Escrow Guarantor to make, execute and deliver
such written acknowledgment or acknowledgments or other instruments as may
from time to time become necessary or advisable, in the judgment of the
Trustee on the advice of counsel, to fully maintain and keep in force the
liability of the Escrow Guarantor hereunder.
SECTION 10.09. OBLIGATIONS NOT REDUCED. The obligations of
the Escrow Guarantor hereunder shall not be satisfied, reduced or discharged
by any intermediate payment or satisfaction of the whole or any part of the
principal, interest, fees and other monies or amounts which may at any time
be or become owing or payable under or by virtue of or otherwise in
connection with the Notes or this Indenture.
SECTION 10.10. OBLIGATIONS REINSTATED. The obligations of
the Escrow Guarantor hereunder shall continue to be effective or shall be
reinstated, as the case may be, if at any time any payment which would
otherwise have reduced the obligations of the Escrow Guarantor hereunder
(whether such payment shall have been made by or on behalf of the Company or
by or on behalf of the Escrow Guarantor) is rescinded or reclaimed from any
of the Guaranteed Parties upon the insolvency, bankruptcy, liquidation or
reorganization of the Company or the Escrow Guarantor or otherwise, all as
though such payment had not been made. If demand for, or acceleration of the
time for, payment by the Company is stayed upon the insolvency, bankruptcy,
liquidation or reorganization of the Company, all such indebtedness otherwise
subject to demand for payment or acceleration shall nonetheless be payable by
the Escrow Guarantor as provided herein.
SECTION 10.11. OBLIGATIONS NOT AFFECTED. The obligations of
the Escrow Guarantor hereunder shall not be affected, impaired or diminished
in any way by any act, omission, matter or thing whatsoever, occurring
before, upon or after any demand for payment hereunder (and whether or not
known or consented to by the Escrow Guarantor or any of the Guaranteed
Parties) which, but for this provision, might constitute a whole or partial
defense to a claim against the Escrow Guarantor hereunder or might operate to
release or otherwise exonerate the Escrow Guarantor from any of its
obligations hereunder or otherwise affect such obligations, whether
occasioned by de-
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fault of any of the Guaranteed Parties or otherwise, including, without
limitation:
(i) any limitation of status or power, disability,
incapacity or other circumstance relating to the Company or any other
person, including any insolvency, bankruptcy, liquidation,
reorganization, readjustment, composition, dissolution, winding-up or
other proceeding involving or affecting the Company or any other
person;
(ii) any irregularity, defect, unenforceability or invalidity
in respect of any Indebtedness or other obligation of the Company or
any other person under this Indenture, the Notes or any other document
or instrument;
(iii) any failure of the Company, whether or not without fault
on its part, to perform or comply with any of the provisions of this
Indenture or the Notes, or to give notice thereof to the Escrow
Guarantor;
(iv) the taking or enforcing or exercising or the refusal or
neglect to take or enforce or exercise any right or remedy from or
against the Company or any other Person or their respective assets or
the release or discharge of any such right or remedy;
(v) the granting of time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other person;
(vi) any change in the time, manner or place of payment of,
or in any other term of, any of the Notes, or any other amendment,
variation, supplement, replacement or waiver of, or any consent to
departure from, any of the Notes or this Indenture, including, without
limitation, any increase or decrease in the principal amount at
maturity of or premium, if any, or interest on any of the Notes;
(vii) any change in the ownership, control, name, objects,
businesses, assets, capital structure or constitution of the Company or
the Escrow Guarantor;
(viii) any merger or amalgamation of the Company or the Escrow
Guarantor with any person or persons;
(ix) the occurrence of any change in the laws, rules,
regulations or ordinances of any jurisdiction by any pres-
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ent or future action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend,
vary, reduce or otherwise affect, any of the Guaranteed Obligations or
the obligations of the Escrow Guarantor under this Escrow Guaranty; and
(x) any other circumstance (other than by complete,
irrevocable payment) that might otherwise constitute a legal or
equitable discharge or defense of the Company under this Indenture or
the Notes or of the Escrow Guarantor in respect of its guarantee
hereunder.
SECTION 10.12. WAIVER. Without in any way limiting the
provisions of Section 7.01 of this Indenture, the Escrow Guarantor hereby
waives notice of acceptance hereof, notice of any liability of the Escrow
Guarantor hereunder, notice or proof of reliance by the Guaranteed Parties
upon the obligations of the Escrow Guarantor hereunder, and diligence,
presentment, demand for payment on the Company, protest, notice of dishonour
or non-payment of any of the Guaranteed Obligations, or other notice or
formalities to the Company or the Escrow Guarantor of any kind whatsoever.
SECTION 10.13. NO OBLIGATION TO TAKE ACTION AGAINST
COMPANY. Neither the Trustee nor any of the other Guaranteed Parties shall
have any obligation to enforce or exhaust any rights or remedies or to take
any other steps under any security for the Guaranteed Obligations or against
the Company or any other person or any property of the Company or any other
person before the Trustee are entitled to demand payment and performance by
the Escrow Guarantor of its liabilities and obligations under this Escrow
Guaranty, and the Escrow Guarantor hereby waives all benefit of discussion.
SECTION 10.14. DEALING WITH THE COMPANY AND OTHERS. The
Guaranteed Parties, without releasing, discharging, limiting or otherwise
affecting in whole or in part the Escrow Guarantor's obligations and
liabilities hereunder and without the consent of or notice to the Escrow
Guarantor, may
(i) grant time, renewals, extensions, compromises,
concessions, waivers, releases, discharges and other indulgences to the
Company or any other person;
(ii) take or abstain from taking security or collateral from
the Company or from perfecting security or collateral of the Company;
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(iii) release, discharge, compromise, realize, enforce or
otherwise deal with or do any act or thing in respect of (with or
without consideration) any and all collateral, mortgages or other
security given by the Company or any third party with respect to the
obligations or matters contemplated by this Indenture or the Notes;
(iv) accept compromises or arrangements from the Company;
(v) apply all monies at any time received from the Company
or from any security upon such part of the Guaranteed Obligations as
the Guaranteed Parties may see fit or change any such application in
whole or in part from time to time as the Guaranteed Parties may see
fit; and
(vi) otherwise deal with, or waive or modify their right to
deal with, the Company and all other persons and any security as the
Guaranteed Parties or the Trustee may see fit.
SECTION 10.15. DEFAULT AND ENFORCEMENT. (a) If the
Subsidiary Guarantor fails to pay in accordance with Section 10.05 hereof,
the Trustee may proceed in its name as trustee hereunder in the enforcement
of the Escrow Guaranty and the Guarantor's Obligations thereunder and
hereunder by any remedy provided by law, whether by legal proceedings or
otherwise, and to recover from the Escrow Guarantor the Guaranteed
Obligations.
(b) No Holder shall have the right to institute any suit,
action or proceeding against the Escrow Guarantor for any default hereunder
except in the manner and subject to the conditions set forth in Article Six
of this Indenture, it being understood and intended that no one or more
Holders shall have any right in any manner whatsoever to enforce any right
hereunder by his or their action except as aforesaid and that all powers and
trusts hereunder shall be exercised and all proceedings at law or in equity
shall be instituted, had and maintained by the Trustee, only as aforesaid and
in any event for the benefit of all Holders as provided in this Indenture.
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ARTICLE ELEVEN
COLLATERAL AND SECURITY
SECTION 11.01. ESCROW AGREEMENT. All of the Escrow
Guarantor's Indenture Obligations shall be secured as provided in the Escrow
Agreement which the Company, the Escrow Guarantor, the Escrow Agent, the
Trustee and the Unit Agent have entered into simultaneously with the
execution of this Indenture. Each Holder, by its acceptance of a Note,
consents and agrees to the terms of the Escrow Agreement (including, without
limitation, the provisions providing for foreclosure and disbursement of
Collateral) as the same may be in effect or may be amended from time to time
in accordance with its terms and authorizes and directs the Escrow Agent and
the Trustee to enter into the Escrow Agreement and to perform its obligations
and exercise its rights thereunder in accordance therewith. The Escrow
Guarantor shall deliver to the Trustee copies of the Escrow Agreement, and
shall do or cause to be done all such acts and things as may be necessary or
proper, or as may be required by the provisions of the Escrow Agreement, to
assure and confirm to the Trustee the security interest in the Collateral
contemplated by the Escrow Agreement, so as to render the same available for
the security and benefit of this Indenture with respect to, and of, the
Notes, according to the intent and purposes expressed in the Escrow
Agreement. The Escrow Guarantor shall take any and all actions required to
cause the Escrow Agreement to create and maintain (to the extent possible
under applicable law), as security for the obligations of the Company
hereunder and its Escrow Guaranty, a valid and enforceable perfected first
priority Lien in and on all the Collateral, in favor of the Trustee for the
benefit of the Trustee, predecessor trustees, and the Holders, superior to
and prior to the rights of all third persons and subject to no other Liens.
The Trustee shall be entitled to take all necessary action to preserve and
protect the security interest in the Collateral and for filing any
instrument, document or notice in any public office at any time or times.
SECTION 11.02. RECORDING AND OPINIONS. (a) At the Trustee's
request, the Escrow Guarantor shall furnish to the Trustee promptly after the
execution and delivery of this Indenture (but in no event later than five
Business Days after the Issue Date) an Opinion of Counsel either (i) stating
that in the opinion of such counsel all action has been taken with respect to
the recording, registering and filing of this Indenture, financing statements
or other instruments necessary to
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make effective the Lien intended to be created by the Escrow Agreement and
reciting with respect to the security interests in the Collateral the details
of such action, or (ii) stating that in the opinion of such counsel no such
action is necessary to make such Lien effective.
(b) The Escrow Guarantor shall furnish to the Escrow Agent
and the Trustee on March 16, 1999, April 16, 1999 and once each month
thereafter until the earlier of the Release Date or the Mandatory Redemption,
an Opinion of Counsel, dated as of such date, either (i) stating that (A) in
the opinion of such counsel, action has been taken with respect to the
recording, registering, filing, re-recording, re-registering and refiling of
all supplemental indentures, financing statements, continuation statements
and other instruments of further assurance as is necessary to maintain the
Lien of the Escrow Agreement and reciting with respect to the security
interests in the Collateral the details of such action or referring to prior
Opinions of Counsel in which such details are given and (B) based on relevant
laws as in effect on the date of such Opinion of Counsel, all financing
statements and continuation statements have been executed and filed that are
necessary as of such date and during the succeeding 12 months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders and the Trustee hereunder and
under the Escrow Agreement with respect to the security interests in the
Collateral or (ii) stating that, in the opinion of such counsel, no such
action is necessary to maintain such Lien and assignment.
SECTION 11.03. RELEASE OF COLLATERAL. (a) Subject to
subsections (b), (c) and (d) of this Section 14.03, Collateral may be
released from the Lien and security interest created by the Escrow Agreement
only in accordance with the provisions of the Escrow Agreement.
(b) No Collateral shall be released from the Lien and
security interest created by the Escrow Agreement pursuant to the provisions
of the Escrow Agreement, other than to the Holders pursuant to the terms
thereof, unless there shall have been delivered to the Trustee the
certificate required by Section 4.22(a).
(c) At any time when a Default shall have occurred and be
continuing and the maturity of the Notes issued on the Issue Date shall have
been accelerated (whether by declaration or otherwise), no Collateral shall
be released pursuant to the provisions of the Escrow Agreement, and no
release of Collat-
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eral in contravention of this Section 11.03(c) shall be effective as against
the Holders, except for the disbursement of all Available Escrow Proceeds to
the Trustee pursuant to Section 3 of the Escrow Agreement.
(d) To the extent applicable, the Escrow Guarantor shall
cause TIA Section 314(d) relating to the release of property or securities
from the Lien and security interest of the Escrow Agreement to be complied
with. Any certificate or opinion required by TIA Section 314(d) may be made
by an officer of the Company except in cases where TIA Section 314(d)
requires that such certificate or opinion be made by an independent person,
which person shall be an independent expert selected or approved by the
Trustee in the exercise of reasonable care.
SECTION 11.04. CERTIFICATES OF THE ESCROW GUARANTOR. The
Escrow Guarantor shall furnish to the Trustee, prior to any proposed release
of Collateral other than pursuant to the express terms of the Escrow
Agreement, (i) all documents required by TIA Section 314(d) and (ii) an
Opinion of Counsel, which may be rendered by internal counsel to the Company,
to the effect that such accompanying documents constitute all documents
required by TIA Section 314(d). The Trustee may, to the extent permitted by
Section 7.02 and Section 7.05, accept as conclusive evidence of compliance
with the foregoing provisions the appropriate statements contained in such
documents and such Opinion of Counsel.
SECTION 11.05. AUTHORIZATION OF ACTIONS TO BE TAKEN BY THE
TRUSTEE UNDER THE ESCROW AGREEMENT. Subject to the provisions of Section
6.02, the Trustee may, without the consent of the Holders, on behalf of the
Holders, take all actions it deems necessary or appropriate in order to (a)
enforce any of the terms of the Escrow Agreement and (b) collect and receive
any and all amounts payable in respect of the obligations of the Escrow
Guarantor hereunder. The Trustee shall have power to institute and maintain
such suits and proceedings as it may deem expedient to prevent any impairment
of the Collateral by any acts that may be unlawful or in violation of the
Escrow Agreement or this Indenture, and such suits and proceedings as the
Trustee may deem expedient to preserve or protect its interests and the
interests of the Holders in the Collateral (including power to institute and
maintain suits or proceedings to restrain the enforcement of or compliance
with any legislative or other governmental enactment, rule or order that may
be unconstitutional or otherwise invalid if the enforcement of, or compliance
with, such enactment, rule or order would impair the security interest
hereunder or be prejudicial to the interests of the Holders or of the
Trustee).
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SECTION 11.06. AUTHORIZATION OF RECEIPT OF FUNDS BY THE
TRUSTEE UNDER THE ESCROW AGREEMENT. The Trustee is authorized to receive any
funds for the benefit of the Holders disbursed under the Escrow Agreement,
and to make further distributions of such funds to the Holders according to
the provisions of this Indenture.
SECTION 11.07. TERMINATION OF SECURITY INTEREST. Upon
satisfaction of the conditions in the Escrow Agreement relating to the
release of the Collateral, the Trustee shall, at the written request of the
Escrow Guarantor, release the Liens pursuant to this Indenture and the Escrow
Agreement upon the Escrow Guarantor's compliance with the provisions of the
TIA pertaining to release of collateral.
ARTICLE TWELVE
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT OF 1939. Prior to the
effectiveness of the Registration Statement, this Indenture shall incorporate
and be governed by the provisions of the TIA that are required to be part of
and to govern indentures qualified under the TIA. After the effectiveness of
the Registration Statement, this Indenture shall be subject to the provisions
of the TIA that are required to be a part of this Indenture and shall, to the
extent applicable, be governed by such provisions.
SECTION 12.02. NOTICES: Any notice or communication shall
be sufficiently given if in writing and delivered in person or mailed by
first class mail addressed as follows:
if to the Company:
CompleTel Europe N.V.
c/o CompleTel LLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
with a copy to:
ING Trust (Netherland) B.V.
▇.▇. ▇▇▇ ▇▇▇▇
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1000 CV Amsterdam, The Nederlands
Attention: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
if to the Trustee:
U.S. Bank Trust National Association
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
Any notice or communication mailed to a Holder shall be
mailed to him at his address as it appears on the Security Register by first
class mail and shall be sufficiently given to him if so mailed within the
time prescribed. Copies of any such communication or notice to a Holder shall
also be mailed to the Trustee and each Agent at the same time.
Failure to mail a notice or communication to a Holder or
any defect in it shall not affect its sufficiency with respect to other
Holders. Except for a notice to the Trustee, which is deemed given only when
received, and except as otherwise provided in this Indenture, if a notice or
communication is mailed in the manner provided in this Section 10.02, it is
duly given, whether or not the addressee receives it.
Where this Indenture provides for notice in any manner,
such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose
hereunder.
SECTION 12.03. 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:
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(i) an Officers' Certificate stating that, in the opinion of
the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(ii) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such
Counsel, all such conditions precedent have been complied with;
provided, however, that, with respect to matters of fact, an Opinion of
Counsel may rely on an Officers' Certificate or certificates of public
officials.
SECTION 12.04. STATEMENTS REQUIRED IN CERTIFICATE. Each
certificate with respect to compliance with a condition or covenant provided
for in this Indenture shall include:
(i) a statement that each person signing such certificate
has read such covenant or condition and the definitions herein relating
thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in
such certificate are based;
(iii) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such person, such condition or covenant has been complied with.
SECTION 12.05. RULES BY TRUSTEE, PAYING AGENT OR REGISTRAR.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Paying Agent or Registrar may make reasonable rules for its
functions.
SECTION 12.06. PAYMENT DATE OTHER THAN A BUSINESS DAY. If
an Interest Payment Date, Redemption Date, Payment Date, Stated Maturity or
date of maturity of any Note shall not be a Business Day, then payment of
principal of, premium, if any, or interest on such Note, as the case may be,
need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Interest
Payment Date, Payment Date, or Redemption Date, or at
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the Stated Maturity or date of maturity of such Note; provided that no
interest shall accrue for the period from and after such Interest Payment
Date, Payment Date, Redemption Date, Stated Maturity or date of maturity, as
the case may be.
SECTION 12.07. GOVERNING LAW. The laws of the State of New
York shall govern this Indenture and the Notes. The Trustee, the Company and
the Holders agree to submit to the jurisdiction of the courts of the State of
New York in any action or proceeding arising out of or relating to this
Indenture or the Notes.
SECTION 12.08. NO ADVERSE INTERPRETATION OF OTHER
AGREEMENTS. This Indenture may not be used to interpret another Indenture,
loan or debt agreement of the Company or any Subsidiary of the Company. Any
such indenture, loan or debt agreement may not be used to interpret this
Indenture.
SECTION 12.09. NO RECOURSE AGAINST OTHERS. No recourse for
the payment of the principal of, premium, if any, or interest on any of the
Notes, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company,
Parent or the Escrow Guarantor contained in this Indenture, in any of the
Notes, or because of the creation of any Indebtedness represented thereby,
shall be had against any incorporator or against any past, present or future
partner, shareholder, other equityholder, officer, director, employee or
controlling person, as such, of the Company, Parent or the Escrow Guarantor
or of any successor Person, either directly or through the Company or any
successor Person, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it
being expressly understood that all such liability is hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of the Notes.
SECTION 12.10. SUCCESSORS. All agreements of the Company
in this Indenture and the Notes shall bind its successors. All agreements of
the Trustee of this Indenture shall bind its successor.
SECTION 12.11. DUPLICATE ORIGINALS. The parties may sign
any number of copies of this Indenture. Each signed copy shall be an
original, but all of them together represent the same agreement.
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SECTION 12.12. SEPARABILITY. In case any provision in this
Indenture or in the Notes shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 12.13. 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 hereof and shall in no way modify or restrict any
of the terms and provisions hereof.
SECTION 12.14. AGENT FOR SERVICE; SUBMISSION TO
JURISDICTION; WAIVER OF IMMUNITIES. By the execution and delivery of this
Agreement, the Company (i) acknowledges that it has, by separate written
instrument, designated and appointed CT Corporation System (the "Process
Agent"), ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, as its
authorized agent upon which process may be served in any suit, action or
proceeding arising out of or relating to the Notes or this Indenture that may
be instituted in any Federal or state court in the State of New York, The
City of New York, the Borough of Manhattan, or brought under Federal or state
securities laws or brought by the Trustee (whether in its individual capacity
or in its capacity as Trustee hereunder), and acknowledges that the Process
Agent has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit, action or proceeding and (iii) agrees that
service of process upon the Process Agent and written notice of said service
to it at its principal office in accordance with 12.02 hereof), shall be
deemed in every respect effective service of process upon it in any such suit
or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments as may be necessary to continue such designation and appointment
of the Process Agent in full force and effect so long as the Notes or
Exchange Notes shall be outstanding; provided that the Company may (and
shall, to the extent the Process Agent ceases to be able to be served on the
basis contemplated herein) by written notice to the Trustee, designate such
additional or alternative agents for service of process under this Section
14.14 that (i) maintains an office located in the Borough of Manhattan, The
City of New York in the State of New York, (ii) are either (x) counsel for
the Issuer or (y) a corporate service company which acts as agent for service
of process for other Persons in the ordinary course of its business and (iii)
agrees to act as agent for service of process in accordance with this Section
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10.14. Such notice shall identify the name of such agent for process and the
address of such agent for process in the Borough of Manhattan, The City of
New York, State of New York. Notwithstanding the foregoing, there shall, at
all times, be at least one agent for service of process for the Company
appointed and acting in accordance with this Section 12.14.
To the extent that the Company has or hereafter may acquire
any immunity from jurisdiction of any court or from any legal process
(whether through service of notice, attachment prior to judgment, attachment
in aid of execution, execution or otherwise) with respect to itself or its
property, it hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
SECTION 12.15. JUDGMENT CURRENCY. The Company hereby
agrees, to indemnify the Trustee and each Holder against any loss incurred by
any of them as a result of any judgment or order being given or made for any
amount due under this Indenture or the Notes and such judgment or order being
expressed and paid in a currency (the "Judgment Currency") other than United
States dollars and as result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order and (ii) the spot
rate of exchange in The City of New York at which any such person on the date
of payment of such judgment or order is able to purchase United States
dollars with the amount of the Judgment Currency actually received by such
person. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of, or conversion into, United States dollars.
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SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, all as of the date first written above.
COMPLETEL EUROPE N.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
COMPLETEL ECC B.V.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
U.S. BANK TRUST NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Trust Officer
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