1
EXHIBIT 4.6
INDENTURE
DATED AS OF JANUARY 4, 1999
BETWEEN
HERMES EUROPE RAILTEL B.V., AS ISSUER
AND
THE BANK OF NEW YORK, AS TRUSTEE
--------------------
EURO 85,000,000
10 3/8% SENIOR NOTES DUE 2006
10 3/8% SENIOR NOTES DUE 2006, SERIES B
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CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
---------------- ---------
Section 310(a)(1) .............................................................. 7.10
(a)(2) ................................................................... 7.10
(a)(3) ................................................................... N.A.
(a)(4) ................................................................... N.A.
(a)(5) ................................................................... 7.08, 7.10.
(b) ...................................................................... 7.08; 7.10; 10.02
(c) ...................................................................... N.A.
Section 311(a) ................................................................. 7.11
(b) ...................................................................... 7.11
(c) ...................................................................... N.A.
Section 312(a) ................................................................. 2.05
(b) ...................................................................... 10.03
(c) ...................................................................... 10.03
Section 313(a) ................................................................. 7.06
(b)(1) ................................................................... 7.06
(b)(2) ................................................................... 7.06
(c) ...................................................................... 7.06; 10.02
(d) ...................................................................... 7.06
Section 314(a) ................................................................. 4.07; 4.09; 10.02
(b) ...................................................................... N.A.
(c)(1) ................................................................... 10.04
(c)(2) ................................................................... 10.04
(c)(3) ................................................................... N.A.
(d) ...................................................................... N.A.
(e) ...................................................................... 10.05
(f) ...................................................................... N.A.
Section 315(a) ................................................................. 7.01(b)
(b) ...................................................................... 7.05; 10.02
(c) ...................................................................... 7.01(a)
(d) ...................................................................... 7.01(c)
(e) ...................................................................... 6.11
Section 316(a)(last sentence) .................................................. 2.09
(a)(1)(A) ................................................................ 6.05
(a)(1)(B) ................................................................ 6.04
(a)(2) ................................................................... N.A.
(b) ...................................................................... 6.07
(c) ...................................................................... 9.04
Section 317(a)(1) .............................................................. 6.08
(a)(2) ................................................................... 6.09
(b) ...................................................................... 2.04
Section 318(a) ................................................................. 10.01
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TABLE OF CONTENTS
Page
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ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions................................................................................
SECTION 1.02. Incorporation by Reference of Trust Indenture Act..........................................
SECTION 1.03. Rules of Construction......................................................................
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating............................................................................
SECTION 2.02. Execution and Authentication...............................................................
SECTION 2.03. Registrar and Paying Agent.................................................................
SECTION 2.04. Paying Agent To Hold Assets in Trust.......................................................
SECTION 2.05. Securityholder Lists.......................................................................
SECTION 2.06. Transfer and Exchange......................................................................
SECTION 2.07. Replacement Securities.....................................................................
SECTION 2.08. Outstanding Securities.....................................................................
SECTION 2.09. Treasury Securities........................................................................
SECTION 2.10. Temporary Securities.......................................................................
SECTION 2.11. Cancellation...............................................................................
SECTION 2.12. Defaulted Interest.........................................................................
SECTION 2.13. CUSIP Number...............................................................................
SECTION 2.14. Deposit of Moneys..........................................................................
SECTION 2.15. Book-Entry Provisions for Global Securities................................................
SECTION 2.16. Registration of Transfers and Exchanges....................................................
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.........................................................................
SECTION 3.02. Selection of Securities To Be Redeemed.....................................................
SECTION 3.03. Notice of Redemption.......................................................................
SECTION 3.04. Effect of Notice of Redemption.............................................................
SECTION 3.05. Deposit of Redemption Price................................................................
SECTION 3.06. Securities Redeemed in Part................................................................
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities......................................................................
SECTION 4.02. Maintenance of Office or Agency............................................................
SECTION 4.03. Corporate Existence........................................................................
SECTION 4.04. Payment of Taxes and Other Claims..........................................................
SECTION 4.05. Notice of Defaults.........................................................................
SECTION 4.06. Maintenance of Properties and Insurance....................................................
SECTION 4.07. Compliance Certificate.....................................................................
SECTION 4.08. Waiver of Stay, Extension or Usury Laws....................................................
SECTION 4.09. Provision of Financial Information.........................................................
SECTION 4.10. Change of Control..........................................................................
SECTION 4.11. Limitation on Restricted Payments..........................................................
SECTION 4.12. Limitation on Incurrence of Indebtedness..............................................
SECTION 4.13. Limitations on Restrictions Affecting Restricted Subsidiaries..............................
SECTION 4.14. Designation of Unrestricted Subsidiaries...................................................
SECTION 4.15. Limitation on Liens........................................................................
SECTION 4.16. Limitation on Asset Sales..................................................................
SECTION 4.17. Limitation on Transactions with Affiliates.................................................
SECTION 4.18. Limitation on Issuances of Guarantees by Restricted Subsidiaries...........................
SECTION 4.19. Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries.............................................................................
SECTION 4.20. Additional Amounts.........................................................................
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc...............................................................
SECTION 5.02. Successor Corporation Substituted..........................................................
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default..........................................................................
SECTION 6.02. Acceleration...............................................................................
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SECTION 6.03. Other Remedies.............................................................................
SECTION 6.04. Waiver of Past Default.....................................................................
SECTION 6.05. Control by Majority........................................................................
SECTION 6.06. Limitation on Suits........................................................................
SECTION 6.07. Rights of Holders To Receive Payment.......................................................
SECTION 6.08. Collection Suit by Trustee.................................................................
SECTION 6.09. Trustee May File Proofs of Claim...........................................................
SECTION 6.10. Priorities.................................................................................
SECTION 6.11. Undertaking for Costs......................................................................
ARTICLE SEVEN
TRUSTEE
SECTION 7.01. Duties of Trustee..........................................................................
SECTION 7.02. Rights of Trustee..........................................................................
SECTION 7.03. Individual Rights of Trustee...............................................................
SECTION 7.04. Trustee's Disclaimer.......................................................................
SECTION 7.05. Notice of Defaults.........................................................................
SECTION 7.06. Reports by Trustee to Holders..............................................................
SECTION 7.07. Compensation and Indemnity.................................................................
SECTION 7.08. Replacement of Trustee.....................................................................
SECTION 7.09. Successor Trustee by Merger, etc...........................................................
SECTION 7.10. Eligibility; Disqualification..............................................................
SECTION 7.11. Preferential Collection of Claims Against Company..........................................
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.......................................................
SECTION 8.02. Application of Trust Money.................................................................
SECTION 8.03. Repayment to Company.......................................................................
SECTION 8.04. Reinstatement..............................................................................
ARTICLE NINE
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.01. Without Consent of Holders.................................................................
SECTION 9.02. With Consent of Holders....................................................................
SECTION 9.03. Compliance with Trust Indenture Act........................................................
SECTION 9.04. Revocation and Effect of Consents..........................................................
SECTION 9.05. Notation on or Exchange of Securities......................................................
SECTION 9.06. Trustee To Sign Amendments, etc............................................................
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls...............................................................
SECTION 10.02. Notices....................................................................................
SECTION 10.03. Communications by Holders with Other Holders...............................................
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.........................................
SECTION 10.05. Statements Required in Certificate or Opinion..............................................
SECTION 10.06. Rules by Trustee, Paying Agent, Registrar..................................................
SECTION 10.07. Governing Law..............................................................................
SECTION 10.08. No Recourse Against Others.................................................................
SECTION 10.09. Successors.................................................................................
SECTION 10.10. Counterpart Originals......................................................................
SECTION 10.11. Severability...............................................................................
SECTION 10.12. No Adverse Interpretation of Other Agreements..............................................
SECTION 10.13. Legal Holidays.............................................................................
SECTION 10.14. Agent for Service; Submission to Jurisdiction; Waiver of Immunities........................
SECTION 10.15. Judgment Currency..........................................................................
SIGNATURES..................................................................................................... S-1
EXHIBIT A Form of Series A Security.................................................................... A-1
EXHIBIT B Form of Series B Security.................................................................... B-1
EXHIBIT C Form of Legend for Global Securities......................................................... C-1
EXHIBIT D Form of Transfer Certificate................................................................. D-1
EXHIBIT E Form of Transfer Certificate for Institutional Accredited Investors.......................... E-1
EXHIBIT F Form of Transfer Certificate for Regulation S Transfers...................................... F-1
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INDENTURE dated as of January 4, 1999, between HERMES EUROPE RAILTEL B.V.,
a Netherlands limited company (the "Company") and THE BANK OF NEW YORK, a New
York banking corporation, as Trustee.
Each party hereto agrees as follows for the benefit of each other party and
for the equal and ratable benefit of the Holders of the Securities:
ARTICLE ONE
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Acquired Indebtedness" means Indebtedness of a Person (a) assumed in
connection with an Acquisition from such Person or (b) existing at the time
such Person becomes a Restricted Subsidiary or is merged or consolidated
with or into the Company or any Restricted Subsidiary; provided, however,
that such Indebtedness was not Incurred in connection with, or in
contemplation of, such Acquisition, such Person becoming a Restricted
Subsidiary or such merger or consolidation.
"Acquired Person" means, with respect to any specified Person, any other
Person which merges with or into or becomes a Subsidiary of such specified
Person.
"Acquisition" means (i) any capital contribution (by means of transfers of
cash or other property to others or payments for property or services for
the account or use of others, or otherwise) by the Company or any
Restricted Subsidiary to any other Person, or any acquisition or purchase
of Equity Interests of any other Person by the Company or any Restricted
Subsidiary, in either case pursuant to which such Person shall become a
Restricted Subsidiary or shall be consolidated, merged with or into the
Company or any Restricted Subsidiary or (ii) any acquisition by the Company
or any Restricted Subsidiary of the assets of any Person which constitute
substantially all of an operating unit or line of business of such Person
or which is otherwise outside of the ordinary course of busineSection
"Additional Interest" has the meaning provided in Section 4(a) of the
Registration Rights Agreement.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to
any person, shall mean the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of such
person, whether through the ownership of voting securities, by agreement or
otherwise.
"Agent" means any Registrar, Paying Agent or co-Registrar.
"Asset Sale" means any direct or indirect sale, conveyance, transfer, lease
(that has the effect of a disposition) or other disposition (including,
without limitation, any merger, consolidation or sale-leaseback
transaction) to any Person other than the Company or a Restricted
Subsidiary, in one transaction or a series of related transactions, of (i)
any Equity Interest of any Restricted Subsidiary; (ii) any material
license, franchise or other authorization of the Company or any Restricted
Subsidiary; (iii) any assets of the Company or any Restricted Subsidiary
which constitute substantially all of an operating unit or line of business
of the Company or any Restricted Subsidiary; or (iv) any other property or
asset of the Company or any Restricted Subsidiary outside of the ordinary
course of business (including the receipt of proceeds paid on account of
the loss of or damage to any property or asset and awards of compensation
for any asset taken by condemnation, eminent domain or similar
proceedings). For the purposes of this definition, the term "Asset Sale"
shall not include (a) any transaction consummated in compliance with
Section 5.01 and the creation of any Lien not prohibited by Section 4.15;
provided, however, that any transaction consummated in compliance with
Section 5.01 involving a sale, conveyance, assignment, transfer, lease or
other disposal of less than all of the properties or assets of the Company
and the Restricted Subsidiaries shall be deemed to be an Asset Sale with
respect to the properties or assets of the Company and Restricted
Subsidiaries that are not so sold, conveyed, assigned, transferred, leased
or otherwise disposed of in such transaction; (b) sales of property or
equipment that has become worn out, obsolete or damaged or otherwise
unsuitable for use in connection with the business of the Company or any
Restricted Subsidiary, as the case may be; and (c) any transaction
consummated in compliance with Section 4.11. In addition, solely for
purposes of Section 4.16, any sale, conveyance, transfer, lease or other
disposition of any property or asset, whether in one transaction or a
series of related transactions, involving assets with a Fair Market Value
not in excess of $1.0 million in any fiscal year shall be deemed not to be
an Asset Sale.
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"Bankruptcy Law" see Section 6.01.
"Basket" see Section 4.11.
"Board of Directors" means, with respect to any Person, the Board of
Directors of such Person (or comparable governing body), or any authorized
committee of that Board (it being understood that the Board of Directors of
the Company shall be its Board of Supervisory Directors).
"Board Resolution" means, with respect to any Person, a duly adopted
resolution of the Board of Directors of such Person.
"Business Day" means a day (other than a Saturday or Sunday) on which the
Depository and banks in New York and the place of payment are open for
busineSection
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that
would at such time be so required to be capitalized on the balance sheet in
accordance with GAAP.
"Cash Equivalents" means: (a) U.S. dollars; (b) securities issued or
directly and fully guaranteed or insured by the U.S. government or any
agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition; (c) certificates of deposit and
eurodollar time deposits with maturities of six months or less from the
date of acquisition, bankers' acceptances with maturities not exceeding six
months and overnight bank deposits, in each case with any commercial bank
having capital and surplus in excess of $500 million; (d) repurchase
obligations with a term of not more than seven days for underlying
securities of the types described in clauses (b) and (c) entered into with
any financial institution meeting the qualifications specified in clause
(c) above; and (e) commercial paper rated P-1, A-1 or the equivalent
thereof by Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings
Group, respectively, and in each case maturing within six months after the
date of acquisition.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" shall mean the occurrence of any of the following
events (whether or not approved by the Board of Directors of the Company):
(a) any Person or group, excluding Permitted Holders, is or becomes the
beneficial owner, directly or indirectly, of Voting Equity Interests
representing 35% or more of the total voting power of the Voting Equity
Interests of the Company at a time when the Permitted Holders together (x)
own Voting Equity Interests representing a lesser percentage of the total
voting power of the Voting Equity Interests of the Company, than such
Person or group (for purposes of determining the percentage of the Voting
Equity Interests of such Person or group, the holdings of the Permitted
Holders who are part of such Person or group shall not be counted in the
Voting Equity Interests of such Person or group) or (y) do not hold the
power to elect a majority of the members of the Board of Directors of the
Company; (b) any Person or group is or becomes the beneficial owner
directly or indirectly, of Voting Equity Interests representing 50% or more
of the total voting power of the Voting Equity Interests of GTS or has the
power, directly or indirectly, to elect a majority of the members of the
Board of Directors of GTS; (c) the Company consolidates with, or merges
with or into, another Person or the Company or one or more Restricted
Subsidiaries sell, assign, convey, transfer, lease or otherwise dispose of
all or substantially all of the assets of the Company and the Restricted
Subsidiaries, taken as a whole, to any Person (other than a Wholly Owned
Restricted Subsidiary), or any Person consolidates with, or merges with or
into, the Company, in any such event other than pursuant to a transaction
in which the Person or Persons that "beneficially owned," directly or
indirectly, Voting Equity Interests representing a majority of the total
voting power of the Voting Equity Interests of the Company immediately
prior to such transaction, "beneficially own," directly or indirectly,
Voting Equity Interests representing a majority of the total voting power
of the Voting Equity Interests of the surviving or transferee Person; (d)
GTS consolidates with, or merges with or into, another Person or GTS or one
or more of its Subsidiaries sell, assign, convey, transfer, lease or
otherwise dispose of all or substantially all of the assets of GTS and its
Subsidiaries, taken as a whole, to any Person (other than a wholly owned
Subsidiary of GTS), or any Person consolidates with, or merges with or
into, GTS, in any such event other than pursuant to a transaction in which
the Person or Persons that "beneficially owned," directly or indirectly,
Voting Equity Interests representing a majority of the total voting power
of the Voting Equity Interests of GTS immediately prior to such
transaction, "beneficially own," directly or indirectly Voting Equity
Interests representing a majority of the total voting power of the Voting
Equity Interests of the surviving or transferee Person; (e) during any
consecutive two-year period, individuals who at the beginning of such
period constituted the Board of Directors of the Company (together with any
new directors whose election by the Board of Directors of the
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Company or whose nomination for election by the stockholders of the Company
was approved by a vote of a majority of the directors then still in office
who were either directors at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason
(other than by action of the Permitted Holders) to constitute a majority of
the Board of Directors of the Company, then in office; (f) during any
consecutive two year period, individuals who at the beginning of such
period constituted the Board of Directors of GTS (together with any new
directors whose election by the Board of Directors of GTS or whose
nomination for election by the stockholders of GTS was approved by a vote
of a majority of the directors then still in office who were either
directors at the beginning of such period or whose election or nomination
for election was previously so approved) cease for any reason to constitute
a majority of the Board of Directors of GTS then in office; or (g) there
shall occur the liquidation or dissolution of the Company or GTS. For
purposes of this definition, (I) "group" has the meaning under Section
13(d) and 14(d) of the Exchange Act or any successor provision to either of
the foregoing, including any group acting for the purpose of acquiring,
holding or disposing of securities within the meaning of Rule 13d-5(b)(1)
under the Exchange Act, and (II) "beneficial ownership" has the meaning set
forth 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, upon the happening of an
event or otherwise.
"Change of Control Date" see Section 4.10.
"Company" means the Person named as the "Company" in the first paragraph of
this Indenture until a successor shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by two Officers or by an Officer and an
Assistant Treasurer or an Assistant Secretary, and delivered to the
Trustee.
"Consolidated Income Tax Expense" means, with respect to any period, the
provision for federal, state, local and foreign income taxes payable by the
Company and the Restricted Subsidiaries for such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Interest Expense" means, with respect to any period, without
duplication, the sum of (i) the interest expense of the Company and the
Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP, including, without limitation, (a) any
amortization of debt discount, (b) the net cost under Interest Rate
Protection Obligations (including any amortization of discounts), (c) the
interest portion of any deferred payment obligation, (d) all commissions,
discounts and other fees and charges owed with respect to letters of credit
and bankers' acceptance financing and (e) all capitalized interest and all
accrued interest, (ii) the interest component of Capitalized Lease
Obligations paid, accrued and/or scheduled to be paid or accrued by the
Company and the Restricted Subsidiaries during such period as determined on
a consolidated basis in accordance with GAAP and (iii) dividends and
distributions in respect of Disqualified Equity Interests actually paid in
cash by the Company or any Restricted Subsidiary (other than to the Company
or another Restricted Subsidiary) during such period as determined on a
consolidated basis in accordance with GAAP.
"Consolidated Net Income" means, with respect to any period, the net income
of the Company and the Restricted Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, adjusted, to the extent
included in calculating such net income, by excluding, without duplication,
(a) other than for purposes of calculating the Basket, all extraordinary
gains or losses for such period, (b) other than for purposes of calculating
the Basket, all gains or losses from the sales or other dispositions of
assets out of the ordinary course of business (net of taxes, fees and
expenses relating to the transaction giving rise thereto) for such period;
(c) that portion of such net income derived from or in respect of
investments in Persons other than Restricted Subsidiaries, except to the
extent actually received in cash by the Company or any Restricted
Subsidiary (subject, in the case of any Restricted Subsidiary, to the
provisions of clause (f) of this definition); (d) the portion of such net
income (or loss) allocable to minority interests in any Person (other than
a Restricted Subsidiary) for such period, except to the extent the
Company's allocable portion of such Person's net income for such period is
actually received in cash by the Company or any Restricted Subsidiary
(subject, in the case of any Restricted Subsidiary, to the provisions of
clause (f) of this definition); (e) the net income (or loss) of any other
Person combined with the Company or any Restricted Subsidiary on a "pooling
of interests" basis attributable to any period prior to
8
the date of combination; and (f) the net income of any Restricted
Subsidiary to the extent that the declaration of dividends or similar
distributions by that Restricted Subsidiary of that income is not at the
time (regardless of any waiver) permitted, directly or indirectly, by
operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulations
applicable to that Restricted Subsidiary or its Equity Interest holders.
"Consolidated Operating Cash Flow" means, with respect to any period,
Consolidated Net Income for such period increased (without duplication), to
the extent deducted in calculating such Consolidated Net Income, by (a)
Consolidated Income Tax Expense for such period; (b) Consolidated Interest
Expense for such period; and (c) depreciation, amortization and any other
non-cash items for such period (other than any non-cash item which requires
the accrual of, or a reserve for, cash charges for any future period) of
the Company and the Restricted Subsidiaries, including, without limitation,
amortization of capitalized debt issuance costs for such period, all of the
foregoing determined on a consolidated basis in accordance with GAAP minus
non-cash items to the extent they increase Consolidated Net Income
(including the partial or entire reversal of reserves taken in prior
periods) for such period.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 10.02 or such other address as the Trustee may
give notice to the Company.
"CT Corporation System" see Section 10.14.
"Cumulative Operating Cash Flow" means, as at any date of determination,
the positive cumulative Consolidated Operating Cash Flow realized during
the period commencing on the Issue Date and ending on the last day of the
most recent fiscal quarter immediately preceding the date of determination
for which consolidated financial information of the Company is available
or, if such cumulative Consolidated Operating Cash Flow for such period is
negative, the negative amount by which cumulative Consolidated Operating
Cash Flow is less than zero.
"Currency Agreement" shall mean any foreign exchange contract, currency
swap agreement or other similar agreement or arrangement, which may include
the use of derivatives, designed to protect the Company or any Restricted
Subsidiary against fluctuations in currency values.
"Custodian" see Section 6.01.
"Debt to Annualized Operating Cash Flow Ratio" means the ratio of (a) the
Total Consolidated Indebtedness as of the date of calculation (the
"Determination Date") to (b) two times the Consolidated Operating Cash Flow
for the latest two fiscal quarters for which financial information is
available immediately preceding such Determination Date (the "Measurement
Period"). For purposes of calculating Consolidated Operating Cash Flow for
the Measurement Period immediately prior to the relevant Determination
Date, (I) any Person that is a Restricted Subsidiary on the Determination
Date (or would become a Restricted Subsidiary on such Determination Date in
connection with the transaction that requires the determination of such
Consolidated Operating Cash Flow) will be deemed to have been a Restricted
Subsidiary at all times during such Measurement Period, (II) any Person
that is not a Restricted Subsidiary on such Determination Date (or would
cease to be a Restricted Subsidiary on such Determination Date in
connection with the transaction that requires the determination of such
Consolidated Operating Cash Flow) will be deemed not to have been a
Restricted Subsidiary at any time during such Measurement Period, and (III)
if the Company or any Restricted Subsidiary shall have in any manner (x)
acquired (through an Acquisition or the commencement of activities
constituting such operating business) or (y) disposed of (by way of an
Asset Sale or the termination or discontinuance of activities constituting
such operating business) any operating business during such Measurement
Period or after the end of such period and on or prior to such
Determination Date, such calculation will be made on a pro forma basis in
accordance with GAAP as if, in the case of an Acquisition or the
commencement of activities constituting such operating business, all such
transactions had been consummated on the first day of such Measurement
Period and, in the case of an Asset Sale or termination or discontinuance
of activities constituting such operating business, all such transactions
had been consummated prior to the first day of such Measurement Period (it
being understood that in calculating Consolidated Operating Cash Flow the
exclusions set forth in clauses (a) through (f) of the definition of
Consolidated Net Income shall apply to an Acquired Person as if it were a
Restricted Subsidiary).
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Depository" means, with respect to the Securities issued in the form of
one or more Global Securities, Euroclear or Cedel or a Person designated as
the common depository by Euroclear or Cedel.
9
"Designation" see Section 4.14.
"Designation Amount" see Section 4.14.
"Determination Date" has the meaning set forth in the definition of "Debt
to Annualized Operating Cash Flow Ratio" above.
"Disinterested Director" means a member of the Board of Directors of the
Company who does not have any material direct or indirect financial
interest in or with respect to the transaction being considered.
"Disposition" means, with respect to any Person, any merger, consolidation
or other business combination involving such Person (whether or not such
Person is the Surviving Person) or the sale, assignment, transfer, lease,
conveyance or other disposition of all or substantially all of such
Person's assets.
"Disqualified Equity Interest" means any Equity Interest which, by its
terms (or by the terms of any security into which it is convertible or for
which it is exchangeable at the option of the holder thereof), or upon the
happening of any event, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or redeemable, at the option of the
holder thereof, in whole or in part, on or prior to the Maturity Date;
provided, however, that any Equity Interests that would not constitute
Disqualified Equity Interests but for provisions thereof giving holders
thereof the right to require the Company to repurchase or redeem such
Equity Interests upon the occurrence of a change in control occurring prior
to the Maturity Date shall not constitute Disqualified Equity Interests if
the change in control provisions applicable to such Equity Interests are no
more favorable to the holders of such Equity Interests than the provisions
under Section 4.10 and such Equity Interests specifically provide that the
Company will not repurchase or redeem any such Equity Interests pursuant to
such provisions prior to the Company's repurchase of Securities as are
required to be repurchased pursuant to the provisions under Section 4.10.
"Dollar Equivalent" shall mean, with respect to a 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 other
currency involved in such computation into U.S. dollars at the rate for the
purchase of U.S. dollars with the applicable currency as set forth in the
Key Currency Cross Rates table of The Wall Street Journal (or a successor
table) on the date that is two Business Days prior to such determination.
"Dollar Notes" means (1) $200,000,000 aggregate principal amount of 10 3/8%
Senior Notes due 2009 of the Company and (2) the 10 3/8% Senior Notes due
2009, Series B, of the Company issued in exchange for the securities
referred to in clause (1).
"Equity Interest" in any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) corporate stock or other equity
participations, including partnership interests, whether general or
limited, in such Person, including any Preferred Equity Interests.
"Euroclear" means Xxxxxx Guaranty Trust Company of New York (Brussels
office) as operator of the Euroclear System.
"Event of Default" see Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated by the SEC thereunder.
"Expiration Date" has the meaning set forth in the definition of "Offer to
Purchase" below.
"Fair Market Value" means, with respect to any asset, the price (after
taking into account any liabilities relating to such assets) which could be
negotiated in an arm's-length free market transaction, for cash, between a
willing seller and a willing and able buyer, neither of which is under any
compulsion to complete the transaction; provided, however, that the Fair
Market Value of any such asset or assets shall be determined conclusively
by the Board of Directors of the Company acting in good faith, which
determination shall be evidenced by a resolution of such Board delivered to
the Trustee.
"GAAP" means, at any date of determination, generally accepted accounting
principles in effect in the United States which are applicable at the date
of determination and which are consistently applied for all applicable
periods.
"Global Security" means a security evidencing all or a portion of the
Securities issued to the Depository or its nominee in accordance with
Section 2.01 and bearing the legend set forth in Exhibit C hereto.
"GTS" means Global TeleSystems Group, Inc., a Delaware corporation, and its
successors.
"guarantee" means, as applied to any obligation, (i) a guarantee (other
than by endorsement of negotiable instruments for collection in the
ordinary course of
10
business), direct or indirect, in any manner, of any part or all of such
obligation and (ii) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the
payment or performance (or payment of damages in the event of
non-performance) of all or any part of such obligation, including, without
limiting the foregoing, the payment of amounts drawn down by letters of
credit. A guarantee shall include, without limitation, any agreement to
maintain or preserve any other person's financial condition or to cause any
other Person to achieve certain levels of operating results.
"Holder," "holder of Securities," "Securityholders" or other similar terms
mean the registered holder of any Security.
"Incur" means, with respect to any Indebtedness or other obligation of any
Person, to create, issue, incur (including by conversion, exchange or
otherwise), assume, guarantee or otherwise become liable in respect of such
Indebtedness or other obligation or the recording, as required pursuant to
GAAP or otherwise, of any such Indebtedness or other obligation on the
balance sheet of such Person (and "Incurrence," "Incurred" and "Incurring"
shall have meanings correlative to the foregoing). Indebtedness of a Person
existing at the time such Person becomes a Restricted Subsidiary or is
merged or consolidated with or into the Company or any Restricted
Subsidiary shall be deemed to be Incurred at such time.
"Indebtedness" means (without duplication), with respect to any Person,
whether recourse is to all or a portion of the assets of such Person and
whether or not contingent, (a) every obligation of such Person for money
borrowed; (b) every obligation of such Person evidenced by bonds,
debentures, notes or other similar instruments, including obligations
incurred in connection with the acquisition of property, assets or
businesses; (c) every reimbursement obligation of such Person with respect
to letters of credit, bankers' acceptances or similar facilities issued for
the account of such Person; (d) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but
excluding trade accounts payable incurred in the ordinary course of
business and payable in accordance with industry practices, or other
accrued liabilities arising in the ordinary course of business which are
not overdue or which are being contested in good faith); (e) every Capital
Lease Obligation of such Person; (f) every net obligation under interest
rate swap or similar agreements or foreign currency hedge, exchange or
similar agreements of such Person; (g) every obligation of the type
referred to in clauses (a) through (f) of another Person and all dividends
of another Person the payment of which, in either case, such Person has
guaranteed or is responsible or liable for, directly or indirectly, as
obligor, guarantor or otherwise; and (h) any and all Refinancings of, or
amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (a) through (g) above.
Indebtedness (i) shall never be calculated taking into account any cash and
cash equivalents held by such Person; (ii) shall not include obligations of
any Person (x) arising from the honoring by a bank or other financial
institution of a check, draft or similar instrument inadvertently drawn
against insufficient funds in the ordinary course of business, provided
that such obligations are extinguished within two Business Days of their
incurrence unless covered by an overdraft line, (y) resulting from the
endorsement of negotiable instruments for collection in the ordinary course
of business and consistent with past business practices and (z) under
stand-by letters of credit to the extent collateralized by cash or Cash
Equivalents; (iii) which provides that an amount less than the principal
amount thereof shall be due upon any declaration of acceleration thereof
shall be deemed to be Incurred or outstanding in an amount equal to the
accreted value thereof at the date of determination determined in
accordance with GAAP; and (iv) shall include the liquidation preference and
any mandatory redemption payment obligations in respect of any Disqualified
Equity Interests of the Company or any Preferred Equity Interests of any
Restricted Subsidiary.
"Indenture" means this Indenture as amended or supplemented from time to
time.
"Independent Financial Advisor" means a recognized, accounting, appraisal,
investment banking firm or consultant with experience in a
Telecommunications Business (i) which does not, and whose directors,
officers and employees or Affiliates do not, have a material direct or
indirect financial interest in the Company and (ii) which, in the judgment
of the Board of Directors of the Company, is otherwise independent and
qualified to perform the task for which it is to be engaged.
"Initial Purchasers" means Xxxxxxxxx, Lufkin & Xxxxxxxx International,
Xxxxxxx Xxxxx International, Bear, Xxxxxxx International Limited, BT Alex.
Xxxxx International, a division of Bankers Trust International, PLC and
Xxxxxx Brothers International (Europe).
11
"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" means, with respect to the Securities, the sum of any cash
interest and any Additional Interest on the Securities.
"Interest Payment Date" means each semiannual interest payment date on
January 15 and July 15 of each year, commencing July 15, 1999.
"Interest Rate Protection Obligations" means, with respect to any Person,
the Obligations of such Person under (i) interest rate swap agreements,
interest rate cap agreements and interest rate collar agreements, and (ii)
other agreements or arrangements designed to protect such Person against
fluctuations in interest rates.
"Interest Record Date" for the interest payable on any Interest Payment
Date (except a date for payment of defaulted interest) means the January 1
or July 1 (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date.
"Investment" means, with respect to any Person, any direct or indirect
loan, advance, guarantee or other extension of credit or capital
contribution to (by means of transfers of cash or other property or assets
to others or payments for property or services for the account or use of
others, or otherwise), or purchase or acquisition of capital stock, bonds,
notes, debentures or other securities or evidences of Indebtedness issued
by, any other Person. The amount of any Investment shall be the original
cost of such Investment, plus the cost of all additions thereto, and minus
the amount of any portion of such Investment repaid to such Person in cash
as a repayment of principal or a return of capital, as the case may be, but
without any other adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment. In
determining the amount of any investment involving a transfer of any
property or asset other than cash, such property shall be valued at its
Fair Market Value at the time of such transfer. "Investments" shall exclude
extensions of trade credit in the ordinary course of business in accordance
with normal trade practices.
"Issue Date" means the original issue date of the Securities.
"Judgment Currency" see Section 10.15.
"Latest Balance Sheet" means, of any Person, the latest consolidated
balance sheet of such Person reported on by a recognized firm of
independent accountants without qualification as to scope; provided,
however, that such balance sheet is as of a date within the past 135 days.
"Lien" means any lien, mortgage, charge, security interest, hypothecation,
assignment for security or encumbrance of any kind (including any
conditional sale or capital lease or other title retention agreement, any
lease in the nature thereof, and any agreement to give any security
interest).
"Maturity Date" means the date, which is set forth on the face of the
Securities, on which the Securities will mature.
"Measurement Period" has the meaning set forth in the definition of "Debt
to Annualized Operating Cash Flow Ratio" above.
"Monetization Sale" see Section 4.16.
"Net Cash Proceeds" means the aggregate proceeds in the form of cash or
Cash Equivalents received by the Company or any Restricted Subsidiary in
respect of any Asset Sale, including all cash or Cash Equivalents received
upon any sale, liquidation or other exchange of proceeds of Asset Sales
received in a form other than cash or Cash Equivalents, net of (a) the
direct costs relating to such Asset Sale (including, without limitation,
legal, accounting and investment banking fees, and sales commissions) and
any relocation expenses incurred as a result thereof; (b) taxes paid or
payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements); (c) amounts
required to be applied to the repayment of Indebtedness secured by a Lien
on the asset or assets that were the subject of such Asset Sale; (d)
amounts deemed, in good faith, appropriate by the Board of Directors of the
Company to be provided as a reserve, in accordance with GAAP, against any
liabilities associated with such assets which are the subject of such Asset
Sale (provided that the amount of any such reserves shall be deemed to
constitute Net Cash Proceeds at the time such reserves shall have been
released or are not otherwise required to be retained as a reserve); and
(e) with respect to Asset Sales by Subsidiaries, the portion of such cash
payments attributable to Persons holding a minority interest in such
Subsidiary.
"Note Amount" see Section 4.16.
"Note Portion of Excess Proceeds" see Section 4.16.
"Obligations" means any principal, interest (including, without limitation,
post-petition interest), penalties, fees, indemnifications, reimbursement
obligations, damages and other liabilities payable under the documentation
governing any Indebtedness.
12
"Offer" has the meaning set forth in the definition of "Offer to Purchase"
below.
"Offer to Purchase" means a written offer (the "Offer") sent by or on
behalf of the Company by first-class mail, postage prepaid, to each holder
at his address appearing in the register for the Securities on the date of
the Offer offering to purchase up to the principal amount of Securities
specified in such Offer at the purchase price specified in such Offer (as
determined pursuant to this Indenture). Unless otherwise required by
applicable law, the Offer shall specify an expiration date (the "Expiration
Date") of the Offer to Purchase, which shall be not less than 20 Business
Days nor more than 90 days after the date of such Offer, and a settlement
date (the "Purchase Date") for purchase of Securities to occur no later
than five Business Days after the Expiration Date. The Company shall notify
the Trustee at least 15 Business Days (or such shorter period as is
acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be
mailed by the Company or, at the Company's request, by the Trustee in the
name and at the expense of the Company. The Offer shall contain all the
information required by applicable law to be included therein. The Offer
shall contain all instructions and materials necessary to enable such
Holders to tender Securities pursuant to the Offer to Purchase. The Offer
shall also state:
(1) the Section of this Indenture pursuant to which the Offer to Purchase
is being made;
(2) the Expiration Date and the Purchase Date;
(3) the aggregate principal amount of the outstanding Securities offered
to be purchased by the Company pursuant to the Offer to Purchase
(including, if less than 100%, the manner by which such amount has been
determined pursuant to the Section of this Indenture requiring the Offer to
Purchase) (the "Purchase Amount");
(4) the purchase price to be paid by the Company for each Euro 1,000
aggregate principal amount of Securities accepted for payment (as specified
pursuant to this Indenture) (the "Purchase Price");
(5) that the holder may tender all or any portion of the Securities
registered in the name of such holder and that any portion of a Security
tendered must be tendered in an integral multiple of Euro 1,000 aggregate
principal amount;
(6) the place or places where Securities are to be surrendered for tender
pursuant to the Offer to Purchase;
(7) that interest on any Security not tendered or tendered but not
purchased by the Company pursuant to the Offer to Purchase will continue to
accrue;
(8) that on the Purchase Date the Purchase Price will become due and
payable upon each Security being accepted for payment pursuant to the Offer
to Purchase and that interest thereon shall cease to accrue on and after
the Purchase Date;
(9) that each holder electing to tender all or any portion of a Security
pursuant to the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior to the close
of business on the Expiration Date (such Security being, if the Company or
the Trustee so requires, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the holder thereof or his attorney duly authorized in
writing);
(10) that holders will be entitled to withdraw all or any portion of
Securities tendered if the Company (or its Paying Agent) receives, not
later than the close of business on the fifth Business Day next preceding
the Expiration Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the holder, the principal amount of the Security
the holder tendered, the certificate number of the Security the holder
tendered and a statement that such holder is withdrawing all or a portion
of his tender;
(11) that (a) if Securities in an aggregate principal amount less than or
equal to the Purchase Amount are duly tendered and not withdrawn pursuant
to the Offer to Purchase, the Company shall purchase all such Securities
and (b) if Securities in an aggregate principal amount in excess of the
Purchase Amount are tendered and not withdrawn pursuant to the Offer to
Purchase, the Company shall purchase Securities having an aggregate
principal amount equal to the Purchase Amount on a pro rata basis (with
such adjustments as may be deemed appropriate so that only Securities in
denominations of Euro 1,000 aggregate principal amount or integral
multiples thereof shall be purchased); and
(12) that in the case of any holder whose Security is purchased only in
part, the Company shall execute and the Trustee shall authenticate and
deliver to the holder of such Security without service charge, a new
Security or Securities, of any authorized denomination as requested by such
holder, in an aggregate principal amount equal to and in exchange for the
unpurchased portion of the Security so tendered.
An Offer to Purchase shall be governed by and effected in accordance with
the provisions above pertaining to any Offer.
13
"Officer" means the Chairman, any Vice Chairman, the President, any Vice
President, the Chief Financial Officer, the Treasurer, or the Secretary of
the Company.
"Officer's Certificate" means a certificate signed by an Officer of the
Company complying with Sections 10.04 and 10.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"Other Debt" see Section 4.16.
"Participant" see Section 2.15.
"Paying Agent" see Section 2.03.
"Permitted Holders" means GTS or any of its Affiliates.
"Permitted Investments" means (a) Cash Equivalents; (b) Investments in
prepaid expenses, negotiable instruments held for collection and lease,
utility and workers' compensation, performance and other similar deposits;
(c) loans and advances to employees made in the ordinary course of business
not to exceed $3,000,000 in the aggregate at any one time outstanding; (d)
Interest Rate Protection Obligations and Currency Agreements permitted
under Section 4.12; (e) bonds, notes, debentures or other securities
received as a result of Asset Sales permitted under Section 4.16; (f)
transactions with officers, directors and employees of the Company or any
Restricted Subsidiary entered into in the ordinary course of business
(including compensation or employee benefit arrangements with any such
director or employee) and consistent with past business practices; (g)
Investments made in the ordinary course of business and on ordinary
business terms as partial payment for constructing a network relating
principally to a Telecommunications Business; (h) Investments in any
Restricted Subsidiary; (i) intercompany Indebtedness to the extent
permitted under Section 4.12(b)(v); (i) Investments by the Company or any
Restricted Subsidiary in another Person, if as a result of such Investment
(x) such other Person becomes a Restricted Subsidiary or (y) such other
Person is merged or consolidated with or into, or transfers or conveys all
or substantially all of its assets to, the Company or a Restricted
Subsidiary; and (j) Investments in evidences of Indebtedness, securities or
other property received from another Person by the Company or any
Restricted Subsidiary in connection with any bankruptcy proceeding or by
reason of a composition or readjustment of debt or a reorganization of such
Person or as a result of foreclosure, perfection or enforcement of any Lien
in exchange for evidences of Indebtedness, securities or other property of
such Person held by the Company or any Restricted Subsidiary, or for other
liabilities or obligations of such other Person to the Company or any
Restricted Subsidiary that were created in accordance with the terms of
this Indenture.
"Permitted Liens" means (a) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary; provided, however, that such Liens were in existence
prior to the contemplation of such merger or consolidation and do not
secure any property or assets of the Company or any Restricted Subsidiary
other than the property or assets subject to the Liens prior to such merger
or consolidation; (b) Liens existing on the Issue Date; (c) Liens securing
Indebtedness consisting of Capitalized Lease Obligations, mortgage
financings, industrial revenue bonds or other monetary obligations, in each
case incurred solely for the purpose of financing all or any part of the
purchase price or cost of construction or installation of assets used in
the business of the Company or any Restricted Subsidiary, or repairs,
additions or improvements to such assets; provided, however, that (I) such
Liens secure Indebtedness in an amount not in excess of the original
purchase price or the original cost of any such assets or repair, addition
or improvement thereto (plus an amount equal to the reasonable fees and
expenses in connection with the Incurrence of such Indebtedness), (II) such
Liens do not extend to any other assets of the Company or any Restricted
Subsidiary (and, in the case of repair, addition or improvements to any
such assets, such Lien extends only to the assets (and improvements thereto
or thereon) repaired, added to or improved), (III) the Incurrence of such
Indebtedness is permitted by Section 4.12 and (IV) such Liens attach within
90 days of such purchase, construction, installation, repair, addition or
improvement; (d) Liens to secure any Refinancings, in whole or in part, of
any Indebtedness secured by Liens referred to in the clauses above so long
as such Lien does not extend to any other property (other than improvements
thereto); (e) Liens securing letters of credit entered into in the ordinary
course of business and consistent with past business practice; (f) Liens on
and pledges of the capital stock of any Unrestricted Subsidiary securing
any Indebtedness of such Unrestricted Subsidiary; (g) Liens on any property
or assets of a Restricted Subsidiary granted in favor of and held by the
Company or any Restricted Subsidiary; (h) Liens on
14
any property or assets of the Company or any Restricted Subsidiary securing
on a pari passu basis all of the Securities and the Dollar Notes; (i)
statutory Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen or other like Liens arising in the
ordinary course of business of the Company or any Restricted Subsidiary and
with respect to amounts not yet delinquent or being contested in good faith
by appropriate proceedings; (j) Liens for taxes, assessments, government
charges or claims that are being contested in good faith by appropriate
proceedings promptly instituted and diligently conducted; provided that any
reserve or other appropriate provision as shall be required in conformity
with GAAP shall have been made therefor; (k) Liens incurred or deposits
made to secure the performance of tenders, bids, leases, statutory
obligations, surety and appeal bonds, government contracts, performance
bonds and other obligations of a like nature incurred in the ordinary
course of business (other than contracts for the payment of money); (l)
easements, rights-of-way, restrictions and other similar charges or
encumbrances not interfering in any material respect with the business of
the Company or any Restricted Subsidiary incurred in the ordinary course of
business; (m) Liens arising by reason of judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such
judgment, decree or order shall not have been finally terminated or the
period within which such proceedings may be initiated shall not have
expired; (n) Liens securing Qualified Subsidiary Indebtedness to the extent
permitted to be Incurred under Section 4.12; (o) Liens securing
Indebtedness under Interest Rate Protection Obligations or Indebtedness
under Currency Agreements to the extent permitted to be Incurred under
Section 4.12; and (p) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security.
"Permitted Refinancing" means, with respect to any Indebtedness,
Indebtedness to the extent representing a Refinancing of such Indebtedness;
provided, however, that (1) the Refinancing Indebtedness shall not exceed
the sum of the amount of the Indebtedness being Refinanced, plus the amount
of accrued interest or dividends thereon, the amount of any reasonably
determined prepayment premium necessary to accomplish such Refinancing and
reasonable fees and expenses incurred in connection therewith; (2) the
Refinancing Indebtedness shall have a Weighted Average Life to Maturity
equal to or greater than the Weighted Average Life to Maturity of the
Indebtedness being Refinanced and shall not permit redemption or other
retirement (including pursuant to any required offer to purchase to be made
by the Company or any Restricted Subsidiary) of such Indebtedness at the
option of the holder thereof prior to the final stated maturity of the
Indebtedness being Refinanced, other than a redemption or other retirement
at the option of the holder of such Indebtedness (including pursuant to a
required offer to purchase made by the Company or a Restricted Subsidiary)
upon a change of control of the Company pursuant to provisions
substantially similar to those under Section 4.10; (3) Indebtedness that
ranks pari passu with the Securities may be Refinanced only with
Indebtedness that is made pari passu with or subordinate in right of
payment to the Securities, and Indebtedness that is subordinated in right
of payment to the Securities may be Refinanced only with Indebtedness that
is subordinate in right of payment to the Securities on terms no less
favorable to the Holders than those contained in the Indebtedness being
Refinanced; and (4) the Refinancing Indebtedness shall be Incurred by the
obligor on the Indebtedness being Refinanced or by the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, limited liability company, limited
liability partnership, limited partnership, trust, unincorporated
organization or government or any agency or political subdivision thereof.
"Physical Securities" has the meaning set forth in Section 2.01.
"Preferred Equity Interest" in any Person, means an Equity Interest of any
class or classes (however designated) which is preferred as to the payment
of dividends or distributions, or as to the distribution of assets upon any
voluntary or involuntary liquidation or dissolution of such Person, over
Equity Interests of any other class in such Person.
"principal" of a debt security means the principal of the security, plus,
when appropriate, the premium, if any, on the security.
"Private Placement Legend" means the legend initially set forth on the
Series A Securities in the form set forth on Exhibit A hereto.
"Public Equity Offering" means an underwritten public offering of common
Equity Interests of the Company pursuant to an effective registration
statement filed under the
15
Securities Act (excluding registration statements filed on Form S-8).
"Purchase Amount" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Date" has the meaning set forth in the definition of "Offer to
Purchase" above.
"Purchase Price" has the meaning set forth in the definition of "Offer to
Purchase" above.
"QIB Global Security" see Section 2.01.
"Qualified Equity Interest" means any Equity Interest of the Company other
than any Disqualified Equity Interest.
"Qualified Institutional Buyer" or "QIB" means a "qualified institutional
buyer" as that term is defined in Rule 144A under the Securities Act.
"Qualified Subsidiary Indebtedness" means (i) Indebtedness of Restricted
Subsidiaries under one or more senior credit agreements, senior loan
agreements or similar senior facilities, secured or unsecured, entered into
from time to time, including any related notes, guarantees collateral
documents, instruments and agreements executed in connection therewith or
(ii) Indebtedness of Restricted Subsidiaries in an aggregate principal
amount not to exceed $25.0 million in the aggregate at any time
outstanding.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price fixed for such redemption pursuant to this Indenture as set
forth in the form of Security annexed hereto as Exhibit A or Exhibit B
hereto.
"Refinance" means refinance, renew, extend, replace, defease or refund; and
"Refinancing" and "Refinanced" have correlative meanings.
"Registered Exchange Offer" means the offer to exchange the Series B
Securities for all of the outstanding Series A Securities in accordance
with the Registration Rights Agreement.
"Registrar" see Section 2.03.
"Registration" means the Registered Exchange Offer by the Company or other
registration of the Series A Securities under the Securities Act pursuant
to and in accordance with the terms of the Registration Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of January 4, 1999 relating to the Securities between the Company
and the Initial Purchasers.
"Registration Statement" means the registration statement(s) as defined and
described in the Registration Rights Agreement.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" see Section 2.01.
"Replacement Assets" means (x) properties and assets (other than cash or
any Equity Interests or other security) that will be used in a
Telecommunications Business of the Company and the Restricted Subsidiaries
or (y) Equity Interests of any Person engaged primarily in a
Telecommunications Business, which Person will become on the date of
acquisition thereof a Restricted Subsidiary as a result of the Company's
acquiring such Equity Interests.
"Required Filing Date" see Section 4.09.
"Restricted Payments" see Section 4.11.
"Restricted Security" has the meaning set forth in Rule 144(a)(3) under the
Securities Act or any successor to such rule; provided, however, that the
Trustee shall be entitled to request and conclusively rely upon an Opinion
of Counsel with respect to whether any Security is a Restricted Security.
"Restricted Subsidiary" means any Subsidiary of the Company that has not
been designated by the Board of Directors of the Company, by a resolution
of the Board of Directors of the Company delivered to the Trustee, as an
Unrestricted Subsidiary pursuant to Section 4.14. Any such designation may
be revoked by a resolution of the Board of Directors of the Company
delivered to the Trustee, subject to the provisions of such covenant.
"Revocation" see Section 4.14.
"Rule 144A" means Rule 144A under the Securities Act or any successor
thereto.
"SEC" means the Securities and Exchange Commission.
"Securities" means the Series A Securities and the Series B Securities
treated as a single class of securities, as amended or supplemented from
time to time in accordance with the terms of this Indenture.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
16
"Series A Securities" means the 10 3/8% Senior Notes due 2006 of the
Company issued pursuant to this Indenture and sold pursuant to the Purchase
Agreement.
"Series B Securities" means the 10 3/8% Senior Notes due 2006, Series B, of
the Company to be issued pursuant to this Indenture in exchange for the
Series A Securities pursuant to the Registered Exchange Offer and the
Registration Rights Agreement.
"Share Capital" shall mean, at any time of determination, the stated
capital of the Equity Interests (other than Disqualified Stock) and
additional paid-in capital of the Company at such time, all as determined
in accordance with GAAP.
"Significant Restricted Subsidiary" means, at any date of determination,
(a) any Restricted Subsidiary that, together with its Subsidiaries that
constitute Restricted Subsidiaries (i) for the most recent fiscal year of
the Company accounted for more than 10.0% of the consolidated revenues of
the Company and the Restricted Subsidiaries or (ii) as of the end of such
fiscal year, owned more than 10.0% of the consolidated assets of the
Company and the Restricted Subsidiaries, all as set forth on the
consolidated financial statements of the Company and the Restricted
Subsidiaries for such year prepared in conformity with GAAP, and (b) any
Restricted Subsidiary which, when aggregated with all other Restricted
Subsidiaries that are not otherwise Significant Restricted Subsidiaries and
as to which any event described in Section 6.01(8) or (9) has occurred and
is continuing, would constitute a Significant Restricted Subsidiary under
clause (a) of this definition.
"Stated Maturity", when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such
installment of interest is due and payable.
"Strategic Equity Investments" means the issuance and sale of Qualified
Equity Interests to a Person that has an equity market capitalization, a
net asset value or annual revenues of at least $1.5 billion and owns and
operates business primarily in a Telecommunication Business
"Subordinated Indebtedness" means any Indebtedness of the Company which is
expressly subordinated in right of payment to the Securities.
"Subsidiary" means, with respect to any Person, (a) any corporation of
which the outstanding Voting Equity Interests having at least a majority of
the votes entitled to be cast in the election of directors shall at the
time be owned, directly or indirectly, by such Person, or (b) any other
Person of which at least a majority of Voting Equity Interests are at the
time, directly or indirectly, owned by such first named Person.
"Surviving Person" means, with respect to any Person involved in or that
makes any Disposition, the Person formed by or surviving such Disposition
or the Person to which such Disposition is made.
"Tax" shall mean any tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and any other
liabilities related thereto).
"Taxing Authority" shall mean any government or political subdivision or
territory or possession of any government or any authority or agency
therein or thereof having power to tax.
"Telecommunications Acquisition" means an Acquisition of properties or
assets to be used in a Telecommunications Business or of the Equity
Interests of any Person that becomes a Restricted Subsidiary; provided,
however, that such Person's properties and assets shall consist principally
of properties or assets that will be used in a Telecommunications
Business
"Telecommunications Business" means any business owning, constructing,
financing and operating a telephone and/or communications system located
entirely in countries located in Western and Central Europe, or any
business reasonably related thereto, including, without limitation, any
business conducted by the Company or any Restricted Subsidiary on the Issue
Date.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code Sections
77aaa-77bbbb), as amended, as in effect on the date of this Indenture until
such time as this Indenture is qualified under the TIA, and thereafter as
in effect on the date on which this Indenture is qualified under the TIA,
except in each case as provided in Section 9.03.
"Total Consolidated Indebtedness" means, as at any date of determination,
an amount equal to the aggregate amount of all Indebtedness of the Company
and the Restricted Subsidiaries, on a consolidated basis, outstanding as of
such date of determination, after giving effect to any Incurrence of
Indebtedness and the application of the proceeds therefrom giving rise to
such determination.
"Trustee" means the party named as such in this Indenture until a successor
replaces it in accordance with the provisions of this Indenture and
thereafter means such successor.
"Trust Officer" means any officer within the corporate trust department (or
any successor group of the Trustee) including any vice president, assistant
vice president,
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assistant secretary or any other officer or assistant officer of the
Trustee customarily performing functions similar to those performed by the
persons who at that time shall be such officers, and also means, with
respect to a particular corporate trust matter, any other officer to whom
such trust matter is referred because of his knowledge of and familiarity
with the particular subject, and who shall have direct responsibility for
the administration of this Indenture.
"Unrestricted Subsidiary" means any Subsidiary of the Company designated as
such pursuant to Section 4.14. Any such designation may be revoked by a
resolution of the Board of Directors of the Company delivered to the
Trustee, subject to the provisions of Section 4.14.
"Unutilized Net Cash Proceeds" see Section 4.16(a).
"U.S. Government Obligations" means direct non-callable obligations of, or
obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United
States is pledged.
"U.S. Person" means a "U.S. person" as defined in Rule 902 under the
Securities Act or any successor to such Rule.
"Voting Equity Interests" means Equity Interests in a corporation or other
Person with voting power under ordinary circumstances entitling the holders
thereof to elect the Board of Directors or other governing body of such
corporation or Person.
"Weighted Average Life to Maturity" means, when applied to any Indebtedness
at any date, the number of years obtained by dividing (a) the sum of the
products obtained by multiplying (i) the amount of each then remaining
installment, sinking fund, serial maturity or other required scheduled
payment of principal, including payment of final maturity, in respect
thereof, by (ii) the number of years (calculated to the nearest
one-twelfth) that will elapse between such date and the making of such
payment, by (b) the then outstanding aggregate principal amount of such
Indebtedness.
"Wholly Owned Restricted Subsidiary" means any Restricted Subsidiary all of
the outstanding Voting Equity Interests (other than directors' qualifying
shares) of which are owned, directly or indirectly, by the Company.
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:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule and not
otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction.
Unless the context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned to
it in accordance with generally accepted accounting principles in effect
from time to time, and any other reference in this Indenture to "generally
accepted accounting principles" refers to GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular;
(5) provisions apply to successive events and transactions; and
(6) "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.
ARTICLE TWO
THE SECURITIES
SECTION 2.01. Form and Dating.
The Series A Securities and the Trustee's certificate of authentication
thereof shall be substantially in the form of Exhibit A hereto, which is
hereby incorporated in and expressly made a part of this Indenture. The
Series B Securities and the Trustee's certificate of authentication thereof
shall be substantially in the form of Exhibit B hereto, which is hereby
incorporated in and expressly made a part of this Indenture.
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The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. The Company and the Trustee shall approve the
form of the Securities and any notation, legend or endorsement on them.
Each Security shall be dated the date of its issuance and shall show the
date of its authentication.
Securities initially offered and sold by the Initial Purchasers shall,
unless the applicable Holder requests Securities in the form of
certificated Securities in registered form ("Physical Securities"), which
shall be in substantially the form set forth in Exhibit A hereto, be issued
initially in the form of one or more permanent Global Securities in
registered form, substantially in the form set forth in Exhibit A hereto,
deposited with the Trustee, as custodian for the Depository, and shall bear
the legend set forth in Exhibit C hereto. One or more separate Global
Securities shall be issued to represent Securities held by (i) Qualified
Institutional Buyers (a "QIB Global Security") and (ii) Persons acquiring
Securities in offshore transactions in reliance on Regulation S (a
"Regulation S Global Security"). The Company shall cause the QIB Global
Securities and Regulation S Global Securities to have separate CUSIP
numbers.
The provisions of the "Operating Procedures of the Euroclear System" and
"Terms and Conditions Governing Use of Euroclear" and the "General Terms
and Conditions of Cedel Bank" and "Customer Handbook" of Cedel shall be
applicable to interests in the Regulation S Global Security that are held
by the Participants through Euroclear or Cedel.
Upon consummation of the Registration, Series B Securities may be issued in
the form of one or more permanent Global Securities in registered form,
substantially in the form set forth in Exhibit B hereto, deposited with the
Trustee, as custodian for the Depository, and shall bear the legend set
forth on Exhibit C hereto.
The aggregate principal amount of any Global Security may from time to time
be increased or decreased by adjustments made on the records of the
Trustee, as custodian for the Depository, as hereinafter provided.
SECTION 2.02. Execution and Authentication.
An Officer or an Assistant Secretary (who shall, in either case, have been
duly authorized by all requisite corporate actions) shall sign the
Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security was an Officer at the time
of such execution but no longer holds that office at the time the Trustee
authenticates the Security, the Security shall be valid nevertheleSection
A Security shall not be valid until an authorized signatory of the Trustee
manually signs the certificate of authentication on the Security. The
signature shall be conclusive evidence that the Security has been
authenticated under this Indenture.
The Trustee shall authenticate (i) Series A Securities for original issue
in the aggregate principal amount not to exceed Euro 85,000,000 and (ii)
Series B Securities from time to time only in exchange for a like principal
amount of Series A Securities in accordance with the Registration Rights
Agreement, in each case upon a written order of the Company in the form of
an Officer's Certificate. The Officer's Certificate shall specify the
amount of Securities to be authenticated, the series of Securities and the
date on which the Securities are to be authenticated. The aggregate
principal amount of Securities outstanding at any time may not exceed Euro
85,000,000, except as provided in Section 2.07. Upon receipt of a written
order of the Company in the form of an Officer's Certificate, the Trustee
shall authenticate Securities in substitution for Securities originally
issued to reflect any name change of the Company.
The Trustee may appoint an authenticating agent reasonably acceptable to
the Company to authenticate Securities. Unless otherwise provided in the
appointment, an authenticating agent may authenticate Securities whenever
the Trustee may do so. Each reference in this Indenture to authentication
by the Trustee includes authentication by such agent. An authenticating
agent has the same rights as an Agent to deal with the Company and
Affiliates of the Company.
The Securities shall be issuable only in registered form without coupons in
denominations of Euro 1,000 and any integral multiple thereof.
SECTION 2.03. Registrar and Paying Agent.
The Company shall maintain an office or agency in the Borough of Manhattan,
The City of New York, and, so long as the Securities are listed on the
Luxembourg Stock Exchange and the rules of such stock exchange require, in
Luxembourg where (a) Securities may be presented or surrendered for
registration of transfer or for exchange ("Registrar"), (b) Securities may
be presented or surrendered for payment ("Paying Agent") and (c) notices
and demands in respect of the Securities and this Indenture may be served.
The Registrar shall keep a register or registers of the Securities and of
their transfer and exchange. The Company, upon notice to the
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Trustee, may appoint one or more co-Registrars and one or more additional
Paying Agents. The term "Paying Agent" includes any additional Paying
Agent. Except as provided herein, the Company, or any Subsidiary may act as
Paying Agent, Registrar or co-Registrar.
The Company shall enter into an appropriate agency agreement with any Agent
not a party to this Indenture, which shall incorporate the provisions of
the TIA. The agreement shall implement the provisions of this Indenture
that relate to such Agent. The Company shall promptly notify the Trustee of
the name and address of any such Agent. If the Company fails to maintain a
Registrar or Paying Agent, or fails to give the foregoing notice, the
Trustee shall act as such and shall be entitled to appropriate compensation
in accordance with Section 7.07.
The Company initially appoints the Trustee as Paying Agent and as Registrar
(acting through its London Branch) until such time as the Trustee has
resigned or a successor has been appointed.
SECTION 2.04. Paying Agent to Hold Assets in Trust.
The Company shall require each Paying Agent other than the Trustee to agree
in writing that each Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all assets held by the Paying Agent for the payment
of principal of, or interest on, the Securities, and shall promptly notify
the Trustee of any Default by the Company in making any such payment. The
Company at any time may require a Paying Agent to distribute all assets
held by it to the Trustee and account for any assets 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 distribute
all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have
been delivered by the Company to the Paying Agent (if other than the
Company), the Paying Agent shall have no further liability for such assets.
If the Company, any Subsidiary or any of their respective Affiliates acts
as Paying Agent, it shall, on or before each due date of the principal of
or interest on the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
SECTION 2.05. Securityholder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses
of Holders. If the Trustee is not the Registrar, the Company shall furnish
to the Trustee before each Interest Record Date and at such other times as
the Trustee may request in writing a list as of such date and in such form
as the Trustee may reasonably require of the names and addresses of
Holders, which list may be conclusively relied upon by the Trustee.
SECTION 2.06. Transfer and Exchange.
Subject to the provisions of Sections 2.15 and 2.16, when Securities are
presented to the Registrar or a co-Registrar with a request to register the
transfer of such Securities or to exchange such Securities for an equal
principal amount of Securities of other authorized denominations of the
same series, the Registrar or co-Registrar shall register the transfer or
make the exchange as requested if its requirements for such transaction are
met; provided, however, that the Securities surrendered for transfer or
exchange shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Registrar or
co-Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing. To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Securities at
the Registrar's or co-Registrar's written request. No service charge shall
be made for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or other governmental charge payable upon exchanges or
transfers pursuant to Section 2.02, 2.10, 3.06, 4.10, 4.16 or 9.05). The
Registrar or co-Registrar shall not be required to register the transfer or
exchange of any Security (i) during a period beginning at the opening of
business 15 days before the mailing of a notice of redemption of Securities
and ending at the close of business on the day of such mailing and (ii)
selected for redemption in whole or in part pursuant to Article Three
hereof, except the unredeemed portion of any Security being redeemed in
part.
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 Security is registered as the owner thereof for
all purposes whether or not the Security shall be overdue, and neither the
Company, the Trustee, nor any such Agent shall be
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affected by notice to the contrary. Any Holder of a Global Security shall,
by acceptance of such Global Security, agree that transfers of beneficial
interests in such Global Security may be effected only through a book-entry
system maintained by the Depository (or its agent), and that ownership of a
beneficial interest in a Global Security shall be required to be reflected
in a book entry.
SECTION 2.07. Replacement Securities.
If a mutilated Security is surrendered to the Trustee or if the Holder of a
Security claims that the Security has been lost, destroyed or wrongfully
taken, the Company shall issue and the Trustee shall authenticate a
replacement Security if the Trustee's requirements for replacement of
Securities are met. Such Holder must provide an indemnity bond or other
indemnity, sufficient in the judgment of both the Company and the Trustee,
to protect the Company, the Trustee and any Agent from any loss which any
of them may suffer if a Security is replaced and evidence to their
satisfaction of the apparent loss, destruction or theft of such Security.
The Company may charge such Holder for its reasonable out-of-pocket
expenses in replacing a Security, including reasonable fees and expenses of
counsel.
Every replacement Security is an additional obligation of the Company.
SECTION 2.08. Outstanding Securities.
Securities outstanding at any time are all the Securities that have been
authenticated by the Trustee except those cancelled by it, those delivered
to it for cancellation and those described in this Section 2.08 as not
outstanding. Subject to Section 2.09, a Security does not cease to be
outstanding because the Company or any of its Affiliates holds the
Security.
If a Security is replaced pursuant to Section 2.07 (other than a mutilated
Security surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Security is
held by a bona fide purchaser. A mutilated Security ceases to be
outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If on a Redemption Date, Purchase Date or the Maturity Date the Paying
Agent holds money sufficient to pay all of the principal and interest due
on the Securities payable on that date, then on and after that date such
Securities cease to be outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities have concurred in any direction, waiver or consent, Securities
owned by the Company or any of its Affiliates shall be disregarded, except
that, for the purposes of determining whether the Trustee shall be
protected in relying on any such direction, waiver or consent, only
Securities that a Trust Officer of the Trustee actually knows are so owned
shall be disregarded.
SECTION 2.10. Temporary Securities.
Until definitive Securities are ready for delivery, the Company may prepare
and the Trustee shall authenticate temporary Securities. Temporary
Securities shall be substantially in the form of definitive Securities but
may have variations that the Company considers appropriate for temporary
Securities. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate upon receipt of a written order of the Company
pursuant to Section 2.02 definitive Securities in exchange for temporary
Securities.
SECTION 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and the Paying Agent shall forward to the
Trustee any Securities surrendered to them for transfer, exchange or
payment. The Trustee, or at the direction of the Trustee, the Registrar or
the Paying Agent, and no one else, shall cancel all Securities surrendered
for transfer, exchange, payment or cancellation and deliver to the Company
such cancelled Securities for disposal. Subject to Section 2.07, the
Company may not issue new Securities to replace Securities that it has paid
or delivered to the Trustee for cancellation. If the Company shall acquire
any of the Securities, such acquisition shall not operate as a redemption
or satisfaction of the Indebtedness represented by such Securities unless
and until the same are surrendered to the Trustee for cancellation pursuant
to this Section 2.11. The Trustee shall cancel all Securities surrendered
for transfer, exchange, payment or cancellation and shall dispose of them
in accordance with its normal procedure.
SECTION 2.12. Defaulted Interest.
If the Company defaults in a payment of principal or interest on the
Securities, it shall pay interest on overdue principal and on overdue
installments of interest (without regard to any applicable grace periods)
from time to time on demand at the rate per annum borne by the Securities,
to the extent lawful.
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SECTION 2.13. CUSIP Number.
The Company in issuing the Securities will use one or more "CUSIP" numbers
and the Trustee shall use the appropriate CUSIP number in notices of
redemption or exchange as a convenience to Holders; provided, however, that
any such notice may state that no representation is made as to the
correctness or accuracy of the CUSIP number printed in the notice or on the
Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall
promptly notify the Trustee of any changes in CUSIP numbers.
SECTION 2.14. Deposit of Moneys.
Prior to 12:00 noon London time on the Business Day prior to each Interest
Payment Date, Redemption Date, Purchase Date and the Maturity Date, the
Company shall deposit with the Paying Agent in immediately available funds
money sufficient to make cash payments, if any, due on such Interest
Payment Date, Redemption Date, Purchase Date or Maturity Date, as the case
may be, in a timely manner which permits the Paying Agent to remit payment
to the Holders on such Interest Payment Date, Redemption Date, Purchase
Date or Maturity Date, as the case may be.
SECTION 2.15. Book-Entry Provisions for Global Securities.
(a) The Global Securities initially shall (i) be registered in the name of
the Depository or the nominee of such Depository, (ii) be delivered to the
Trustee as custodian for such Depository and (iii) bear legends as set
forth in Exhibit C hereto.
Members of, or participants in, the Depository ("Participants") shall have
no rights under this Indenture with respect to any Global Security held on
their behalf by the Depository, or the Trustee as its custodian, or under
such Global Security, and the Depository may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner
of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or any
agent of the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depository or
impair, as between the Depository and Participants, the operation of
customary practices governing the exercise of the rights of a beneficial
owner of any Security.
(b) Transfers of Global Securities shall be limited to transfers in whole,
but not in part, to the Depository, its successors or their respective
nominees. Interests of beneficial owners in the Global Securities may be
transferred or exchanged for Physical Securities in accordance with the
rules and procedures of the Depository and the provisions of Section 2.16.
In addition, Physical Securities shall be transferred to all beneficial
owners in exchange for their beneficial interests in Global Securities if
(i) the Depository notifies the Company that it is unwilling or unable to
continue as Depository for any Global Security and a successor Depository
is not appointed by the Company within 90 days of such notice or (ii) an
Event of Default has occurred and is continuing and the Registrar has
received a request from the Depository to issue Physical Securities.
(c) In connection with the transfer of Global Securities as an entirety to
beneficial owners pursuant to paragraph (b) of this Section 2.15, the
Global Securities shall be deemed to be surrendered to the Trustee for
cancellation, and the Company shall execute, and the Trustee shall upon
written instructions from the Company authenticate and make available for
delivery, to each beneficial owner identified by the Depository in exchange
for its beneficial interest in the Global Securities, an equal aggregate
principal amount of Physical Securities of authorized denominations.
(d) Any Physical Security constituting a Restricted Security delivered in
exchange for an interest in a Global Security pursuant to paragraph (b) of
this Section 2.15 shall, except as otherwise provided by Section 2.16, bear
the Private Placement Legend.
(e) The Holder of any Global Security may grant proxies and otherwise
authorize any Person, including Participants and Persons that may hold
interests through Participants, to take any action which a Holder is
entitled to take under this Indenture or the Securities.
SECTION 2.16. Registration of Transfers and Exchanges.
(a) Transfer and Exchange of Physical Securities. When Physical Securities
are presented to the Registrar or co-Registrar with a request:
(i) to register the transfer of the Physical Securities; or
(ii) to exchange such Physical Securities for an equal principal
amount of Physical Securities of other authorized denominations,
the Registrar or co-Registrar shall register the transfer or make the
exchange as requested if the requirements under this Indenture as set forth
in this Section 2.16 for such transactions are met; provided, however, that
the Physical Securities presented or surrendered for registration of
transfer or exchange:
22
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the Registrar or co-Registrar, duly
executed by the Holder thereof or his attorney duly authorized in
writing; and
(II) in the case of Physical Securities of Series A Securities, such
Physical Securities shall be accompanied, in the sole discretion of
the Company, by the following additional information and documents, as
applicable:
(A) if such Physical Security is being delivered to the Registrar or
co-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 D hereto); or
(B) if such Physical Security is being transferred to a Qualified
Institutional Buyer in accordance with Rule 144A, a certification
to that effect (substantially in the form of Exhibit D hereto);
or
(C) if such Physical Security is being transferred to an
Institutional Accredited Investor, delivery of a certification to
that effect (substantially in the form of Exhibit D hereto) and a
transferee certificate for Institutional Accredited Investors
substantially in the form of Exhibit E 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 Security is being transferred in reliance on
Regulation S, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a transferor
certificate for Regulation S transfers substantially in the form
of Exhibit F 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 Security is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to
that effect (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
(F) if such Physical Security 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 D 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 Security for a Beneficial
Interest in a Global Security. A Physical Security may not be exchanged for
a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Registrar or co-Registrar
of a Physical Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Registrar or
co-Registrar, together with:
(A) in the case of Series A Securities, certification, substantially
in the form of Exhibit D hereto, that such Physical Security is
being transferred (I) to a Qualified Institutional Buyer, (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 or co-Registrar to
make, or to direct the Depository to make, an endorsement on the
applicable Global Security to reflect an increase in the
aggregate amount of the Securities represented by the Global
Security,
then the Registrar or co-Registrar shall cancel such Physical Security and
cause, or direct the Depository to cause, in accordance with the standing
instructions and procedures existing between the Depository and the
Registrar or co-Registrar, the principal amount of Securities represented
by the applicable Global Security to be increased accordingly. If no Global
Security representing Securities held by Qualified Institutional Buyers,
Institutional Accredited Investors or Persons acquiring Securities in
offshore transactions in reliance on Regulation S, as 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 2.02,
authenticate such a Global Security in the appropriate principal amount.
(c) Transfer and Exchange of Global Securities. The transfer and exchange
of Global Securities or beneficial interests therein shall be effected
through the Depository in accordance with this Indenture (including the
restrictions on transfer set forth herein) and the procedures of the
Depository therefor. Upon receipt by the Registrar or Co-Registrar of
written instructions, or such other instruction as is customary for the
23
Depository, from the Depository or its nominee, requesting the registration
of transfer of an interest in a QIB Global Security, an Accredited Investor
Global Security or Regulation S Global Security, as the case may be, to
another type of Global Security, together with the applicable Global
Securities (or, if the applicable type of Global Security required to
represent the interest as requested to be transferred is not then
outstanding, only the Global Security representing the interest being
transferred), the Registrar or Co-Registrar shall cancel such Global
Securities (or Global Security) and the Company shall issue and the Trustee
shall, upon written instructions from the Company in accordance with
Section 2.02, authenticate new Global Securities 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 of Securities represented by such
types of Global Securities, giving effect to such transfer. If the
applicable type of Global Security 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 2.02, authenticate a new Global
Security of such type in principal amount equal to the principal amount of
the interest requested to be transferred.
(d) Transfer of a Beneficial Interest in a Global Security for a Physical
Security.
(i) Any Person having a beneficial interest in a Global Security may
upon request exchange such beneficial interest for a Physical
Security. Upon receipt by the Registrar or co-Registrar of written
instructions, or such other form of instructions as is customary for
the Depository, from the Depository or its nominee on behalf of any
Person having a beneficial interest in a Global Security and upon
receipt by the Trustee of a written order or such other form of
instructions as is customary for the Depository or the Person
designated by the Depository as having such a beneficial interest
containing registration instructions and, in the case of any such
transfer or exchange of a beneficial interest in Series A Securities,
the following additional information and documents:
(A) if such beneficial interest is being transferred to the Person
designated by the Depository as being the beneficial owner, a
certification from such Person to that effect (substantially in
the form of Exhibit D hereto); or
(B) if such beneficial interest is being transferred to a Qualified
Institutional Buyer in accordance with Rule l44A, a certification
to that effect (substantially in the form of Exhibit D hereto);
or
(C) if such beneficial interest is being transferred to an
Institutional Accredited Investor, delivery of a certification to
that effect (substantially in the form of Exhibit D hereto) and a
transferee certificate for Institutional Accredited Investors
substantially in the form of Exhibit E 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 beneficial interest is being transferred in reliance on
Regulation S, delivery of a certification to that effect
(substantially in the form of Exhibit D hereto) and a transferor
certificate for Regulation S transfers substantially in the form
of Exhibit F 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 beneficial interest is being transferred in reliance on
Rule 144 under the Securities Act, delivery of a certification to
that effect (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
(F) if such beneficial interest 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 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,
then the Registrar or co-Registrar will cause, in accordance with the
standing instructions and procedures existing between the Depository and
the Registrar or co-Registrar, the aggregate principal amount of the
applicable Global Security to be reduced and, following such reduction, the
Company will execute and, upon receipt of an authentication order in the
form of an Officers' Certificate in accordance with Section 2.02, the
Trustee will authenticate and make available for delivery to the transferee
a Physical Security in the appropriate principal amount.
(ii) Securities issued in exchange for a beneficial interest in a
Global Security pursuant to this Section 2.16(d) shall be registered
in such names and in such authorized denominations as the Depository,
pursuant to instructions from its direct or indirect participants
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or otherwise, shall instruct the Registrar or co-Registrar in writing.
The Registrar or co-Registrar shall deliver such Physical Securities
to the Persons in whose names such Physical Securities are so
registered.
(e) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provisions of this Indenture, a Global Security
may not be transferred as a whole except by the Depository to a nominee of
the Depository or by a nominee of the Depository to the Depository or
another nominee of the Depository or by the Depository or any such nominee
to a successor Depository or a nominee of such successor Depository.
(d) Private Placement Legend. Upon the transfer, exchange or replacement
of Securities not bearing the Private Placement Legend, the Registrar or
co-Registrar shall deliver Securities that do not bear the Private
Placement Legend. Upon the transfer, exchange or replacement of Securities
bearing the Private Placement Legend, the Registrar or co-Registrar shall
deliver only Securities that bear the Private Placement Legend unless, and
the Trustee is hereby authorized to deliver Securities without the Private
Placement Legend if, (i) there is delivered to the Trustee 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 Security 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 Security bearing the Private
Placement Legend, each Holder of such a Security acknowledges the
restrictions on transfer of such Security set forth in this Indenture and
in the Private Placement Legend and agrees that it will transfer such
Security only as provided in this Indenture.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under
this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among
Participants or beneficial owners of interest in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
The Registrar shall retain copies of all letters, notices and other written
communications received pursuant to Section 2.15 or this Section 2.16. 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.
ARTICLE THREE
REDEMPTION
SECTION 3.01. Notices to Trustee.
If the Company elects to redeem Securities pursuant to paragraph 5 of the
Securities at the applicable redemption price set forth thereon, it shall
notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed. The Company shall give such notice to
the Trustee at least 45 days before the Redemption Date (unless a shorter
notice shall be agreed to by the Trustee), together with an Officers'
Certificate stating that such redemption will comply with the conditions
contained herein.
SECTION 3.02. Selection of Securities To Be Redeemed.
If less than all of the Securities are to be redeemed pursuant to paragraph
5(a) or (b) of the Securities, the Trustee shall select the Securities to
be redeemed in compliance with the requirements of the national securities
exchange, if any, on which the Securities are listed or, if the Securities
are not then listed on a national securities exchange, on a pro rata basis,
by lot or in such other manner as the Trustee shall deem fair and
appropriate. The Trustee shall make the selection from the Securities then
outstanding, subject to redemption and not previously called for
redemption.
The Trustee may select for redemption pursuant to paragraph 5(a) or (b) of
the Securities portions of the principal amount of Securities that have
denominations equal to or larger than Euro 1,000 principal amount.
Securities and portions of them the Trustee so selects shall be in amounts
of Euro 1,000 principal amount or integral multiples thereof. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption.
SECTION 3.03. Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption Date, the
Company
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shall mail a notice of redemption by first-class mail to each Holder whose
Securities are to be redeemed at such Holder's registered address;
provided, however, that notice of a redemption pursuant to paragraph 5(b)
of the Securities shall be mailed to each Holder whose Securities are to be
redeemed no later than 60 days following the consummation of the last
Public Equity Offering or Strategic Equity Investment resulting in gross
cash proceeds to the Company, when aggregated with all prior Public Equity
Offerings and Strategic Equity Investments, of at least $75.0 million. The
Company will cause a notice of such redemption to be published in a daily
newspaper with general circulation in Luxembourg (which is expected to be
the Luxemburger Wort).
Each notice of redemption shall identify the Securities to be redeemed
(including the CUSIP number thereon) and shall state:
(1) the Redemption Date;
(2) the redemption price;
(3) the name and address of the Paying Agent to which the Securities are
to be surrendered for redemption;
(4) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(5) that, unless the Company defaults in making the redemption payment,
interest on Securities 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 upon surrender to the Paying Agent;
and
(6) if any Security is being redeemed in part, the portion of the
principal amount of such Security to be redeemed and that, after the
Redemption Date, upon surrender of such Security, a new Security or
Securities in principal amount equal to the unredeemed portion thereof will
be issued.
At the Company's request, the Trustee shall give the notice of redemption
on behalf of the Company, in the Company's name and at the Company's
expense.
SECTION 3.04. Effect of Notice of Redemption.
Once a notice of redemption is mailed, Securities called for redemption
become due and payable on the Redemption Date and at the redemption price.
Upon surrender to the Paying Agent, such Securities shall be paid at the
redemption price, plus accrued interest thereon, if any, to the Redemption
Date, but interest installments whose maturity is on such Redemption Date
shall be payable to the Holders of record at the close of business on the
relevant Interest Record Date.
SECTION 3.05. Deposit of Redemption Price.
Prior to 12:00 noon London time on the Business Day prior to the Redemption
Date, the Company shall deposit with the Paying Agent (or if the Company is
its own Paying Agent, shall, on or before the Redemption Date, segregate
and hold in trust) money sufficient to pay the redemption price of and
accrued interest, if any, on all Securities to be redeemed on that date
other than Securities or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for
cancellation.
If any Security surrendered for redemption in the manner provided in the
Securities shall not be so paid on the Redemption Date due to the failure
of the Company to deposit with the Paying Agent money sufficient to pay the
redemption price thereof, the principal and accrued and unpaid interest, if
any, thereon shall, until paid or duly provided for, bear interest as
provided in Sections 2.12 and 4.01 with respect to any payment default.
SECTION 3.06. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee shall
authenticate for the Holder a new Security equal in principal amount to the
unredeemed portion of the Security surrendered.
ARTICLE FOUR
COVENANTS
SECTION 4.01. Payment of Securities.
The Company shall pay the principal of and interest on the Securities in
the manner provided in the Securities and the Registration Rights
Agreement. An installment of principal or interest shall be considered paid
on the date due if the Trustee or Paying Agent (other than the Company, a
Subsidiary or an Affiliate of the Company) holds on that date money
designated for and sufficient to pay the installment in full and is not
prohibited from paying such money to the Holders of the Securities pursuant
to the terms of this Indenture.
The Company shall pay cash interest on overdue principal at the same rate
per annum borne by the Securities. The Company shall pay cash interest on
overdue installments of
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interest at the same rate per annum borne by the Securities, to the extent
lawful, as provided in Section 2.12.
SECTION 4.02. Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, and, so long as the Securities are listed on the London or Luxembourg
Stock Exchange and the rules of such stock exchange require, in London or
Luxembourg the office or agency required under Section 2.03. The Company
shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 10.02 hereof. The Company hereby initially
designates (i) the Trustee at its address set forth in Section 10.02 hereof
as its office or agency in The Borough of Manhattan, The City of New York,
for such purposes, (ii) Banque Internationale a Luxembourg S.A., at 00,
xxxxx x'Xxxx, X-0000 Xxxxxxxxxx, as its office or agency in Luxembourg for
such purposes and (iii) the Paying Agent at its address set forth in
Section 10.02 hereof as its office or agency in London, for such purposes.
SECTION 4.03. Corporate Existence.
Subject to Article Five, the Company shall do or shall cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the corporate, partnership or other existence of
each Restricted Subsidiary in accordance with the respective organizational
documents of each such Restricted Subsidiary and the rights (charter and
statutory) and material franchises of the Company and the Restricted
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right or franchise, or the corporate existence of any
Restricted Subsidiary, if the Board of Directors of the Company shall
determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and the Restricted Subsidiaries,
taken as a whole, and that the loss thereof is not, and will not be,
adverse in any material respect to the Holders; provided, further, however,
that a determination of the Board of Directors of the Company shall not be
required in the event of a merger of one or more Wholly Owned Restricted
Subsidiaries of the Company with or into another Wholly Owned Restricted
Subsidiary of the Company or another Person, if the surviving Person is a
Wholly Owned Restricted Subsidiary of the Company organized under the laws
of the United States or a State thereof or of the District of Columbia.
SECTION 4.04. Payment of Taxes and Other Claims.
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all material taxes,
assessments and governmental charges levied or imposed upon the Company or
any Restricted Subsidiary or upon the income, profits or property of the
Company or any Restricted Subsidiary and (2) all lawful claims for labor,
materials and supplies which, in each case, if unpaid, might by law become
a material liability, or Lien upon the property, of the Company or any
Restricted Subsidiary; provided, however, that the Company shall not be
required to pay or discharge or cause to be paid or discharged any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings and for which
appropriate provision has been made.
SECTION 4.05. Notice of Defaults.
(a) In the event that any Indebtedness of the Company or any of its
Subsidiaries is declared due and payable before its maturity because of the
occurrence of any default (or any event which, with notice or lapse of
time, or both, would constitute such a default) under such Indebtedness,
the Company shall promptly give written notice to the Trustee of such
declaration, the status of such default or event and what action the
Company is taking or proposes to take with respect thereto.
(b) Upon becoming aware of any Default, the Company shall promptly
deliver an Officers' Certificate to the Trustee specifying the Default.
SECTION 4.06. Maintenance of Properties and Insurance.
(a) The Company shall cause all material properties owned by or leased to
it or any Restricted Subsidiary and used or useful in the conduct of its
business or the business of any Restricted Subsidiary to be maintained and
kept in normal condition, repair and working order and supplied with all
necessary equipment and shall cause to be made all necessary repairs,
renewals, replacements, betterments and improvements thereof, all as in
27
the judgment of the Company may be necessary, so that the business carried
on in connection therewith may be properly and advantageously conducted at
all times; provided, however, that nothing in this Section 4.06 shall
prevent the Company or any 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
Board of Directors or of the board of directors of the Restricted
Subsidiary concerned, or of an officer (or other agent employed by the
Company or of any Restricted Subsidiary) of the Company or such Restricted
Subsidiary having managerial responsibility for any such property,
desirable in the conduct of the business of the Company or any Restricted
Subsidiary, and if such discontinuance or disposal is not adverse in any
material respect to the Holders.
(b) The Company shall maintain, and shall cause the Restricted
Subsidiaries to maintain, insurance with responsible carriers against such
risks and in such amounts, and with such deductibles, retentions,
self-insured amounts and co-insurance provisions, as are customarily
carried by similar businesses of similar size, including property and
casualty loss, and workers' compensation insurance.
SECTION 4.07. Compliance Certificate.
The Company shall deliver to the Trustee within 120 days after the close of
each fiscal year a certificate signed by the principal executive officer,
principal financial officer or principal accounting officer stating that a
review of the activities of the Company has been made under the supervision
of the signing officers with a view to determining whether a Default has
occurred and whether or not the signers know of any Default by the Company
that occurred during such fiscal year. If they do know of such a Default,
the certificate shall describe all such Defaults, their status and the
action the Company is taking or proposes to take with respect thereto. The
first certificate to be delivered by the Company pursuant to this Section
4.07 shall be for the fiscal year ending December 31, 1998.
SECTION 4.08. Waiver of Stay, Extension or Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that it
shall not at any time insist upon, plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury
law or other law, which would prohibit or forgive the Company from paying
all or any portion of the principal of and/or interest, if any, on the
Securities as contemplated herein, wherever enacted, now or at any time
hereafter in force, or which may affect the covenants or the performance of
this Indenture; and (to the extent that it may lawfully do so) the Company
hereby expressly waives all benefit or advantage of any such law, and
covenants that it shall not hinder, delay or impede the execution of any
power herein granted to the Trustee, but shall suffer and permit the
execution of every such power as though no such law had been enacted.
SECTION 4.09. Provision of Financial Information.
Whether or not the Company is subject to Section 13(a) or 15(d) of the
Exchange Act, or any successor provision thereto, the Company shall file
with the SEC (if permitted by SEC practice and applicable law and
regulations) the annual reports, quarterly reports and other documents
which the Company would have been required to file with the SEC pursuant to
such Section 13(a) or 15(d) or any successor provision thereto if the
Company were so required, such documents to be filed with the SEC on or
prior to the respective dates (the "Required Filing Dates") by which the
Company would have been required so to file such documents if the Company
were so required; provided, however, that until the Company is subject to
Section 13(a) or Section 15(d) of the Exchange Act or any successor
provisions thereto, the Required Filing Dates for such quarterly reports
shall be 75 days following the end of the applicable fiscal quarter. The
Company shall also in any event (a) within 15 days of each Required Filing
Date (whether or not permitted or required to be filed with the SEC but
subject to the proviso in the previous sentence) (i) transmit (or cause to
be transmitted) by mail to all Holders, as their names and addresses appear
in the Note register, without cost to such Holders, and (ii) file with the
Trustee, copies of the annual reports, quarterly reports and other
documents which the Company is required to file with the SEC pursuant to
the preceding sentence, or, if such filing is not so permitted, information
and data of a similar nature, and (b) if, notwithstanding the preceding
sentence, filing such documents by the Company with the SEC is not
permitted by SEC practice or applicable law or regulations, promptly upon
written request supply copies of such documents to any Holder. In addition,
for so long as any Securities remain outstanding, the Company will furnish
to the Holders and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act, and, to any beneficial holder of
Securities, if not obtainable from the SEC, information of the type that
would be filed with the SEC pursuant to the foregoing provisions, upon the
request of any such holder. Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
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SECTION 4.10. Change of Control.
(a) Following the occurrence of a Change of Control (the date of such
occurrence being the "Change of Control Date"), the Company shall notify
the Trustee and Holders of the Securities of such occurrence in the manner
prescribed by this Indenture and shall, within 30 days after the Change of
Control Date, make an Offer to Purchase all Securities then outstanding at
a purchase price in cash equal to 101% of the aggregate principal amount
thereof, plus accrued and unpaid interest thereon, if any, to the Purchase
Date. The Company will cause a copy of such notice to be published in a
daily newspaper with general circulation in Luxembourg (which is expected
to be the Luxemburger Wort). The Company's obligations may be satisfied if
a third party makes the Offer to Purchase in the manner, at the times and
otherwise in compliance with the requirements of this Indenture applicable
to an Offer to Purchase made by the Company and purchases all Securities
validly tendered and not withdrawn under such Offer to Purchase. Each
Holder shall be entitled to tender all or any portion of the Securities
owned by such Holder pursuant to the Offer to Purchase, subject to the
requirement that any portion of a Security tendered must be tendered in an
integral multiple of Euro 1,000 principal amount.
(b) On or prior to the Purchase Date specified in the Offer to Purchase,
the Company shall (i) accept for payment all Securities or portions thereof
validly tendered pursuant to the Offer, (ii) deposit with the Paying Agent
or, if the Company is acting as its own Paying Agent, segregate and hold in
trust as provided in Section 2.04) money sufficient to pay the Purchase
Price of all Securities or portions thereof so accepted and (iii) deliver
or cause to be delivered to the Trustee for cancellation all Securities so
accepted together with an Officers' Certificate stating the Securities or
portions thereof accepted for payment by the Company. The Paying Agent (or
the Company, if so acting) shall promptly mail or deliver to Holders of
Securities so accepted, payment in an amount equal to the Purchase Price
for such Securities, and the Trustee shall promptly authenticate and mail
or deliver to each Holder of Securities a new Security or Securities equal
in principal amount to any unpurchased portion of the Security surrendered
as requested by the Holder. Any Security not accepted for payment shall be
promptly mailed or delivered by the Company to the Holder thereof. The
Company shall publicly announce the results of the Offer on or as soon as
practicable after the Purchase Date.
(c) If the Company makes an Offer to Purchase, the Company will comply
with all applicable tender offer laws and regulations, including, to the
extent applicable, Section 14(e) and Rule 14e-1 under the Exchange Act, and
any other applicable Federal or state securities laws and regulations and
any applicable requirements of any securities exchange on which the
Securities are listed, and any violation of the provisions of this
Indenture relating to such Offer to Purchase occurring as a result of such
compliance shall not be deemed a Default.
SECTION 4.11. Limitation on Restricted Payments.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly,
(i) declare or pay any dividend or any other distribution on any
Equity Interests of the Company or any Restricted Subsidiary or make
any payment or distribution to the direct or indirect holders of
Equity Interests of the Company or any Restricted Subsidiary (other
than any dividends, distributions and payments made to the Company or
any Restricted Subsidiary and dividends or distributions payable to
any Person solely in Qualified Equity Interests or in options,
warrants or other rights to purchase Qualified Equity Interests);
(ii) purchase, redeem or otherwise acquire or retire for value any
Equity Interests of the Company or any Restricted Subsidiary (other
than any such Equity Interests owned by the Company or any Restricted
Subsidiary);
(iii) purchase, redeem, defease or retire for value, or make any
principal payment on, prior to any scheduled maturity, scheduled
repayment or scheduled sinking fund payment, any Subordinated
Indebtedness (other than any Subordinated Indebtedness held by any
Restricted Subsidiary); or
(iv) make any Investment (other than Permitted Investments)
(any of the foregoing, a "Restricted Payment"), unless
(a) no Default shall have occurred and be continuing at the time of
or after giving effect to such Restricted Payment;
(b) immediately after giving effect to such Restricted Payment, the
Company would be able to Incur $1.00 of additional Indebtedness
under Section 4.12(a); and
(c) immediately after giving effect to such Restricted Payment, the
aggregate amount
29
of all Restricted Payments (including the Fair Market Value of any
non-cash Restricted Payment) declared or made on or after the Issue
Date (excluding any Restricted Payment described in clauses (ii),
(iii) or (iv) of the next paragraph) does not exceed an amount equal
to the sum of the following (the "Basket"):
(1) (x) the Cumulative Operating Cash Flow determined at the
time of such Restricted Payment less (y) 150% of cumulative
Consolidated Interest Expense determined for the period (treated
as one accounting period) commencing on the Issue Date and ending
on the last day of the most recent fiscal quarter immediately
preceding the date of such Restricted Payment for which
consolidated financial information of the Company is required to
be available, plus
(2) the aggregate net cash proceeds received by the Company
either (x) as capital contributions to the Company after the
Issue Date or (y) from the issue and sale (other than to a
Subsidiary) of Qualified Equity Interests after the Issue Date
(other than any issuance and sale of Qualified Equity Interests
financed (A) directly or indirectly, using funds (I) borrowed
from the Company or any Subsidiary until and to the extent such
borrowing is repaid or (II) contributed, extended, guaranteed or
advanced by the Company or any Subsidiary (including, without
limitation, in respect of any employee stock ownership or benefit
plan) or (B) the proceeds of which are used to effect any
transaction permitted by clauses (ii), (iii) or (iv) of the next
paragraph), plus
(3) the aggregate amount by which Indebtedness (other than any
Subordinated Indebtedness) of the Company or any Restricted
Subsidiary is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Subsidiary of the
Company) subsequent to the Issue Date into Qualified Equity
Interests (less the amount of any cash, or the fair value of
property, distributed by the Company or any Restricted Subsidiary
upon such conversion or exchange), plus
(4) in the case of the disposition or repayment of any
Investment that was treated as a Restricted Payment made after
the Issue Date, an amount (to the extent not included in the
computation of Cumulative Operating Cash Flow) equal to the
lesser of: (x) the return of capital with respect to such
Investment and (y) the amount of such Investment that was treated
as a Restricted Payment, in either case, less the cost of the
disposition of such Investment and net of taxes, plus
(5) so long as the Designation thereof was treated as a
Restricted Payment made after the Issue Date, with respect to any
Unrestricted Subsidiary that has been redesignated as a
Restricted Subsidiary after the Issue Date in accordance with
Section 4.14, the Company's proportionate interest in an amount
equal to the excess of (x) the total assets of such Subsidiary,
valued on an aggregate basis at the lesser of book value and Fair
Market Value, over (y) the total liabilities of such Subsidiary,
determined in accordance with GAAP (and provided that such amount
shall not in any case exceed the Designation Amount with respect
to such Restricted Subsidiary upon its Designation), minus
(6) with respect to each Subsidiary of the Company which has
been designated as an Unrestricted Subsidiary after the Issue
Date in accordance with Section 4.14, the greater of (x) $0 and
(y) the Designation Amount thereof (measured as of the Date of
Designation).
The foregoing provisions will not prevent (i) the payment of any dividend
or distribution on, or redemption of, Equity Interests within 60 days after
the date of declaration of such dividend or distribution or the giving of
formal notice of such redemption, if at the date of such declaration or
giving of formal notice such payment or redemption would comply with the
provisions of this Indenture; (ii) the purchase, redemption, retirement or
other acquisition of any Equity Interests of the Company in exchange for,
or out of the net cash proceeds of the substantially concurrent (A) common
equity capital contribution to the Company from any Person (other than a
Subsidiary) or (B) issue and sale (other than to a Subsidiary) of,
Qualified Equity Interests; (iii) any Investment to the extent that the
consideration therefor consists of the net proceeds of the substantially
concurrent issue and sale (other than to a Subsidiary) of Qualified Equity
Interests; (iv) the purchase, redemption, retirement, defeasance or other
acquisition of Subordinated Indebtedness made in exchange for, or out of
the net cash proceeds of, a substantially concurrent issue and sale (other
than to a Subsidiary) of, (x) Qualified Equity Interests or (y) other
Subordinated Indebtedness having no stated maturity for the payment of
principal thereof prior to the Maturity Date; or (v) any Investment in any
Person principally engaged in a Telecommunications Business; provided,
however, that Investments pursuant to this clause (v) shall not exceed
$25.0 million in the aggregate at any time outstanding; provided, further,
however, that in the case of each of clauses (ii), (iii), (iv) and (v), no
Default shall have occurred and be continuing or would arise therefrom.
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SECTION 4.12. Limitation on Incurrence of Indebtedness.
(a) The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Indebtedness; provided,
however, that the Company may Incur Indebtedness if, at the time of such
Incurrence, the Debt to Annualized Operating Cash Flow Ratio would be less
than or equal to 6.0 to 1.0.
(b) The foregoing limitations of paragraph (a) of this covenant will not
apply to any of the following, each of which shall be given independent
effect:
(i) the Securities and the Dollar Notes, and Permitted Refinancings
thereof;
(ii) Indebtedness of the Company or any Restricted Subsidiary to the
extent outstanding on the date of this Indenture, and Permitted
Refinancings thereof;
(iii) Indebtedness of the Company or Qualified Subsidiary
Indebtedness, in each case, to the extent that the proceeds of or
credit support provided by such Indebtedness is used to finance the
cost (including the cost of design, development, construction,
installation or integration) of network assets, equipment or inventory
acquired by the Company or a Restricted Subsidiary after the Issue
Date, and Permitted Refinancings thereof;
(iv) (1) Indebtedness of the Company or Qualified Subsidiary
Indebtedness, in each case, to the extent that the proceeds of or
credit support provided by such Indebtedness is used to finance a
Telecommunications Acquisition, or working capital for, or to finance
the construction of, the business or network acquired and (2) Acquired
Indebtedness, and, in each case, Permitted Refinancings thereof, but
in each case only to the extent that (x) the aggregate amount of
Indebtedness outstanding of the Company and the Restricted
Subsidiaries after giving effect to the Incurrence of such
Indebtedness and the application of the proceeds therefrom does not
exceed the product of 2.0 and the Share Capital of the Company at the
date of Incurrence of such Indebtedness or (y) the aggregate amount of
such Indebtedness or Acquired Indebtedness, together with all
Indebtedness of the Person, if any, that is to become a Restricted
Subsidiary or be merged or consolidated with or into the Company or
any Restricted Subsidiary in the contemplated transaction outstanding
at the time of such transaction (whether or not Incurred in connection
with, or in contemplation of, such transaction), does not exceed the
net sum of the plant, property and equipment set forth on the Latest
Balance Sheet of such Person;
(v) (1) Indebtedness of any Restricted Subsidiary owed to and held
by the Company or any Restricted Subsidiary and (2) Indebtedness of
the Company owed to and held by any Restricted Subsidiary which is
unsecured and subordinated in right of payment to the payment and
performance of the Company's obligations under the Securities;
provided, however, that an Incurrence of Indebtedness that is not
permitted by this clause (v) shall be deemed to have occurred upon (x)
any sale or other disposition of any Indebtedness of the Company or
any Restricted Subsidiary referred to in this clause (v) to any Person
other than the Company or any Restricted Subsidiary or (y) any
Restricted Subsidiary that holds Indebtedness of the Company or
another Restricted Subsidiary ceasing to be a Restricted Subsidiary;
(vi) Interest Rate Protection Obligations of the Company or any
Restricted Subsidiary relating to Indebtedness of the Company or such
Restricted Subsidiary, as the case may be (which Indebtedness (x)
bears interest at fluctuating interest rates and (y) is otherwise
permitted to be Incurred under this covenant); provided, however, that
the notional principal amount of such Interest Rate Protection
Obligations does not exceed the principal amount of the Indebtedness
to which such Interest Rate Protection Obligations relate;
(vii) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements to the extent relating to (x) Indebtedness of the
Company or such Restricted Subsidiary, as the case may be, and/or (y)
obligations to purchase assets, properties or services incurred in the
ordinary course of business of the Company or such Restricted
Subsidiary, as the case may be; provided, however, that such Currency
Agreements do not increase the Indebtedness or other obligations of
the Company and the Restricted Subsidiaries outstanding other than as
a result of fluctuations in foreign currency exchange rates or by
reason of fees, indemnities or compensation payable thereunder;
(viii) Indebtedness of the Company and/or any Restricted Subsidiary in
respect of performance bonds of the Company or any Restricted
Subsidiary or surety bonds provided by the Company or any Restricted
Subsidiary incurred in the ordinary course of business and on ordinary
business terms in connection with the construction or operation of a
Telecommunications Business; and
(ix) in addition to the items referred to in clauses (i) through
(viii) above, Indebtedness of the Company or Qualified Subsidiary
Indebtedness in an aggregate amount not to exceed $15.0 million at any
time outstanding.
(c) For purposes of determining any particular amount of Indebtedness
under this covenant, guarantees, Liens or obligations with respect to
letters of credit supporting Indebtedness otherwise included in the
determination of such particular amount shall not be included; provided,
however, that the foregoing shall not in any way be deemed to limit the
provisions of Section 4.18.
31
(d) For purposes of determining compliance with this covenant, in the
event that an item of Indebtedness may be Incurred through the first
paragraph of this covenant or by meeting the criteria of one or more of the
types of Indebtedness described in the second paragraph of this covenant
(or the definitions of the terms used therein), the Company, in its sole
discretion may, at the time of such Incurrence, (i) classify such item of
Indebtedness under and comply with either of such paragraphs (or any of
such definitions), as applicable, (ii) classify and divide such item of
Indebtedness into more than one of such paragraphs (or definitions), as
applicable, and (iii) elect to comply with such paragraphs (or
definitions), as applicable, in any order.
SECTION 4.13. Limitations on Restrictions Affecting Restricted Subsidiaries.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, create or otherwise cause or suffer
to exist or become effective any encumbrance or restriction on the ability
of any Restricted Subsidiary to (x) pay dividends or make any other
distributions to the Company or any other Restricted Subsidiary on its
Equity Interests or with respect to any other interest or participation in,
or measured by, its profits, or pay any Indebtedness owed to the Company or
any other Restricted Subsidiary, (y) make loans or advances to, or
guarantee any Indebtedness or other obligations of, the Company or any
other Restricted Subsidiary or (z) transfer any of its properties or assets
to the Company or any other Restricted Subsidiary.
The foregoing shall not prohibit (a) any encumbrance or restriction
existing under or by reason of any agreement in effect on the Issue Date,
as any such agreement is in effect on such date or as thereafter amended or
supplemented but only if such encumbrance or restriction is no more
restrictive than in the agreement being amended; (b) customary provisions
contained in an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock or assets of a
Restricted Subsidiary; provided, however, that (x) such encumbrance or
restriction is applicable only to such Restricted Subsidiary or assets and
(y) such sale or disposition is made in accordance with Section 4.16; (c)
any encumbrance or restriction existing under or by reason of applicable
law; (d) customary provisions restricting subletting or assignment of any
lease governing any leasehold interest of any Restricted Subsidiary; (e)
covenants in purchase money obligations for property acquired in the
ordinary course of business restricting transfer of such property; (f)
covenants in security agreements securing Indebtedness of a Restricted
Subsidiary (to the extent that such Liens were otherwise incurred in
accordance with Section 4.15) that restrict the transfer of property
subject to such agreements; (g) any agreement or other instrument of a
Person acquired by the Company or any Restricted Subsidiary in existence at
the time of such acquisition, which encumbrance or restriction (x) is not
applicable to any Person, or the properties or assets of any Person, other
than the Person, or the properties or assets of the Person so acquired, and
(y) is not incurred in connection with or in contemplation of such
acquisition; or (h) contained in any agreement entered into after the Issue
Date, so long as such encumbrance or restriction is not materially more
disadvantageous to the Holders than the encumbrances and restrictions in
existence at the Issue Date.
SECTION 4.14. Designation of Unrestricted Subsidiaries.
(a) The Company may designate any Subsidiary of the Company as an
"Unrestricted Subsidiary" under this Indenture (a "Designation") only if:
(i) no Default shall have occurred and be continuing at the time of
or after giving effect to such Designation; and
(ii) the Company would be permitted to make an Investment (other than
a Permitted Investment) at the time of Designation (assuming the
effectiveness of such Designation) pursuant to the first paragraph of
Section 4.11 in an amount (the "Designation Amount") equal to the Fair
Market Value of the Company's proportionate interest in the net worth
of such Subsidiary on such date calculated in accordance with GAAP.
All Subsidiaries of Unrestricted Subsidiaries shall be Unrestricted
Subsidiaries.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, at any time (x) provide credit
support for, subject any of its properties or assets (other than the Equity
Interests of any Unrestricted Subsidiary) to the satisfaction of, or
guarantee, any Indebtedness of any Unrestricted Subsidiary (including any
undertaking, agreement or instrument evidencing such Indebtedness), (y) be
liable for any Indebtedness of any Unrestricted Subsidiary or (z) be liable
for any Indebtedness which provides that the holder thereof may (upon
notice, lapse of time or both) declare a default thereon or cause the
payment thereof to be accelerated or payable prior to its final scheduled
maturity upon the occurrence of a default with respect to any Indebtedness
of any Unrestricted Subsidiary.
(b) The Company may revoke any Designation of a Subsidiary as an
Unrestricted Subsidiary (a "Revocation") only if:
32
(i) no Default shall have occurred and be continuing at the time of
and after giving effect to such Revocation;
(ii) all Liens and Indebtedness of such Unrestricted Subsidiary
outstanding immediately following such Revocation would, if Incurred
at such time, have been permitted to be Incurred for all purposes of
this Indenture; and
(iii) any transaction (or series of related transactions) between such
Subsidiary and any of its Affiliates that occurred while such
Subsidiary was an Unrestricted Subsidiary would be permitted by
Section 4.17 as if such transaction (or series of related
transactions) had occurred at the time of such Revocation (after
giving effect to any modification to such transaction (or series of
related transactions) effective at such time).
All Designations and Revocations must be evidenced by resolutions of the
Board of Directors of the Company, delivered to the Trustee certifying
compliance with the foregoing provisions.
SECTION 4.15. Limitation on Liens.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, Incur any Lien (other than any
Permitted Lien) of any kind against or upon any of their respective
properties or assets now owned or hereafter acquired, or any proceeds,
income or profits therefrom, unless contemporaneously therewith or prior
thereto, (i) in the case of any Lien securing an obligation that ranks pari
passu with the Securities, effective provision is made to secure the
Securities equally and ratably with or prior to such obligation with a Lien
on the same collateral and (ii) in the case of any Lien securing an
obligation that is subordinated in right of payment to the Securities,
effective provision is made to secure the Securities with a Lien on the
same collateral that is prior to the Lien securing such subordinated
obligation, in each case, for so long as such obligation is secured by such
Lien.
SECTION 4.16. Limitation on Asset Sales.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, make any Asset Sale, unless (x) the
Company or such Restricted Subsidiary, as the case may be, receives
consideration at the time of such Asset Sale at least equal to the Fair
Market Value of the assets sold or otherwise disposed of and (y) at least
75% of such consideration consists of (i) cash or Cash Equivalents, (ii)
Replacement Assets, (iii) publicly traded Equity Interests of a Person who
is engaged primarily in a Telecommunications Business; provided, however,
that the Company or such Restricted Subsidiary shall sell (a "Monetization
Sale"), for cash or Cash Equivalents, such Equity Interests to a third
Person (other than to the Company or a Subsidiary thereof) at a price not
less than the Fair Market Value thereof within 365 days of the consummation
of such Asset Sale, or (iv) any combination of the foregoing clauses (i)
through (iii). The amount of any (x) Indebtedness (other than any
Subordinated Indebtedness) of the Company or any Restricted Subsidiary that
is actually assumed by the transferee in such Asset Sale and from which the
Company and the Restricted Subsidiaries are fully released shall be deemed
to be cash for purposes of determining the percentage of cash consideration
received by the Company or such Restricted Subsidiary and (y) notes or
other similar obligations received by the Company or any Restricted
Subsidiary from such transferee that are immediately converted, sold or
exchanged (or are converted, sold or exchanged within 365 days of the
related Asset Sale) by the Company or any Restricted Subsidiary into cash
shall be deemed to be cash, in an amount equal to the net cash proceeds
realized upon such conversion, sale or exchange for purposes of determining
the percentage of cash consideration received by the Company or such
Restricted Subsidiary. Any Net Cash Proceeds from any Asset Sale or any
Monetization Sale that are not invested in Replacement Assets or used to
repay and permanently reduce the commitments under Indebtedness of any
Restricted Subsidiary within 365 days of the consummation of such Asset
Sale or Monetization Sale shall constitute "Excess Proceeds" subject to
disposition as provided below.
Within 40 days after the aggregate amount of Excess Proceeds equals or
exceeds $10.0 million, the Company shall make an Offer to Purchase, from
all Holders on a pro rata basis, that aggregate principal amount of
Securities as can be purchased with the Note Portion of Excess Proceeds at
a price in cash equal to 100% of the principal amount thereof, plus accrued
and unpaid interest, if any, to any purchase date. To the extent that the
aggregate amount of principal and accrued interest of Securities validly
tendered and not withdrawn pursuant to an Offer to Purchase is less than
the Excess Proceeds, the Company may use such surplus for general corporate
purposes. If the aggregate amount of principal and accrued interest of
Securities validly tendered and not withdrawn by Holders thereof exceeds
the amount of Securities that can be
33
purchased with the Note Portion of Excess Proceeds, Securities to be
purchased will be selected pro rata based on the aggregate principal amount
of Securities tendered by each Holder. Upon completion of an Offer to
Purchase, the amount of Excess Proceeds with respect to the applicable
Asset Sale or Monetization Sale shall be reset to zero.
In the event that any other Indebtedness of the Company that ranks pari
passu with the Securities (the "Other Debt") requires an offer to purchase
to be made to repurchase such Other Debt upon the consummation of an Asset
Sale, the Company may apply the Excess Proceeds otherwise required to be
applied to an Offer to Purchase to offer to purchase such Other Debt and to
an Offer to Purchase so long as the amount of such Excess Proceeds applied
to purchase the Securities is not less than the Note Portion of Excess
Proceeds. With respect to any Excess Proceeds, the Company shall make the
Offer to Purchase in respect thereof at the same time as the analogous
offer to purchase is made pursuant to any Other Debt and the Purchase Date
in respect thereof shall be the same as the purchase date in respect
thereof pursuant to any Other Debt.
For purposes of this covenant, "Note Portion of Excess Proceeds" means (1)
if no Other Debt is being offered to be purchased, the amount of the Excess
Proceeds and (2) if Other Debt is being offered to be purchased, the amount
of the Excess Proceeds equal to the product of (x) the Excess Proceeds and
(y) a fraction the numerator of which is the aggregate amount of all
Securities tendered pursuant to the Offer to Purchase related to such
Excess Proceeds (the "Note Amount") and the denominator of which is the sum
of the Note Amount and the aggregate amount as of the relevant purchase
date of all Other Debt tendered and purchased pursuant to a concurrent
offer to purchase such Other Debt made at the time of such Offer to
Purchase.
In the event that the Company makes an Offer to Purchase the Securities,
the Company shall comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and
Rule 14e-1 under, the Exchange Act, and any violation of the provisions of
this Indenture relating to such Offer to Purchase occurring as a result of
such compliance shall not be deemed a Default or an Event of Default.
SECTION 4.17. Limitation on Transactions with Affiliates.
The Company shall not, and shall not cause or permit any Restricted
Subsidiary to, directly or indirectly, conduct any business or enter into
any transaction or series of related transactions with or for the benefit
of any Affiliate, any holder of 5% or more of any class of Equity Interests
or any officer, director or employee of the Company or any Restricted
Subsidiary (each, an "Affiliate Transaction"), unless such Affiliate
Transaction is on terms that are no less favorable to the Company or such
Restricted Subsidiary, as the case may be, than could reasonably be
obtained at such time in a comparable transaction with an unaffiliated
third party. For any such transaction that involves value in excess of $5.0
million, the Company shall deliver to the Trustee an Officers' Certificate
stating that a majority of the Disinterested Directors has determined that
the transaction satisfies the above criteria and shall evidence such a
determination by a Board Resolution delivered to the Trustee. For any such
transaction that involves value in excess of $12.5 million, the Company
shall also obtain a written opinion from an Independent Financial Advisor
to the effect that such transaction is fair, from a financial point of
view, to the Company or such Restricted Subsidiary, as the case may be.
Notwithstanding the foregoing, the restrictions set forth in this covenant
shall not apply to (i) transactions between or among the Company and one or
more Restricted Subsidiaries or between or among Restricted Subsidiaries;
(ii) customary directors' fees, indemnification and similar arrangements,
employee salaries, bonuses or employment agreements, compensation or
employee benefit arrangements and incentive arrangements with any officer,
director or employee of the Company or any Restricted Subsidiary entered
into in the ordinary course of business (including customary benefits
thereunder); (iii) transactions pursuant to agreements in effect on the
Issue Date, as such agreements are in effect on the Issue Date or as
thereafter amended or supplemented in a manner not adverse to the Holders;
(iv) loans and advances to officers, directors and employees of the Company
or any Restricted Subsidiary for travel, entertainment, moving and other
relocation expenses, in each case made in the ordinary course of business
and consistent with past business practices; (v) any transactions between
the Company or any Restricted Subsidiary, on the one hand, and any
Affiliate of the Company engaged primarily in a Telecommunications
Business, on the other hand, (x) in the ordinary course of business and
consistent with commercially reasonable practices or (y) approved by a
majority of the Disinterested Directors; (vi) any payment 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
34
Company is part of a consolidated group for tax purposes; provided that
such payment is not greater than that which the Company would be required
to pay as a stand-alone taxpayer; (vii) the pledge of Equity Interests of
Unrestricted Subsidiaries to support the Indebtedness thereof; and (viii)
payment of dividends in respect of Equity Interests of the Company or any
Restricted Subsidiary permitted under Section 4.11.
SECTION 4.18. Limitation on Issuances of Guarantees by Restricted Subsidiaries.
The Company shall not cause or permit any Restricted Subsidiary, directly
or indirectly, to guarantee any Indebtedness of the Company ("Guaranteed
Indebtedness"), unless (i) such Restricted Subsidiary simultaneously
executes and delivers a supplemental indenture to this Indenture pursuant
to which such Restricted Subsidiary guarantees (a "Subsidiary Guarantee")
all of the Company's obligations under the Securities and this Indenture
and (ii) such Restricted Subsidiary waives and will not in any manner
whatsoever claim or take the benefit or advantage of, any rights of
reimbursement, indemnity or subrogation or any other rights against the
Company or any other Restricted Subsidiary as a result of any payment by
such Restricted Subsidiary under its Subsidiary Guarantee. If the
Guaranteed Indebtedness is (A) pari passu with the Securities, then the
guarantee of such Guaranteed Indebtedness shall be pari passu with, or
subordinated to, the Subsidiary Guarantee or (B) subordinated to the
Securities, then the guarantee of such Guaranteed Indebtedness shall be
subordinated to the Subsidiary Guarantee at least to the extent that the
Guaranteed Indebtedness is subordinated to the Securities.
Any Subsidiary Guarantee by a Restricted Subsidiary shall provide by its
terms that it shall be automatically and unconditionally released and
discharged upon (i) any sale, exchange or transfer, to any Person not an
Affiliate of the Company, of all of the Equity Interests of the Company or
any Restricted Subsidiary in, or all or substantially all the assets of,
such Restricted Subsidiary (which sale, exchange or transfer is made in
accordance with this Indenture) or (ii) the release or discharge of the
guarantee which resulted in the creation of such Subsidiary Guarantee,
except a discharge or release by or as a result of payment under such
guarantee.
SECTION 4.19. Limitation on the Issuance and Sale of Capital Stock of Restricted
Subsidiaries.
The Company shall not sell, and shall not cause or permit any Restricted
Subsidiary, directly or indirectly, to issue or sell, any Equity Interests
of a Restricted Subsidiary, except (i) to the Company or a Wholly Owned
Restricted Subsidiary; (ii) if, immediately after giving effect to such
issuance or sale, such Restricted Subsidiary would no longer constitute a
Restricted Subsidiary; or (iii) in the case of issuance of Equity Interests
by a non-Wholly Owned Restricted Subsidiary if, after giving effect to such
issuance, the Company maintains its direct or indirect percentage of
beneficial and economic ownership of such non-Wholly Owned Restricted
Subsidiary.
SECTION 4.20. Additional Amounts.
(a) All payments made by the Company under or with respect to the
Securities will be made free and clear of and without withholding or
deduction for or on account of any present of future Taxes imposed or
levied by or on behalf of any Taxing Authority within the Netherlands, or
within any other jurisdiction in which the Company is organized or engaged
in business for tax purposes, unless the Company is required to withhold or
deduct Taxes by law or by the interpretation or administration thereof. If
the Company is required to withhold or deduct any amount for or on account
of Taxes imposed by a Taxing Authority within the Netherlands, or within
any other jurisdiction in which the Company is organized or engaged in
business for tax purposes, from any payment made under or with respect to
the Securities, the Company will pay such additional amounts ("Additional
Amounts") as may be necessary so that the net amount received by each
holder of Securities (including Additional Amounts) after such withholding
or deduction will equal the amount the holder would have received if such
Taxes had not been withheld or deducted; provided, however, that no
Additional Amounts will be payable with respect to any Tax that would not
have been imposed, payable or due (i) but for the existence of any present
or former connection between the holder (or the beneficial owner of, or
person ultimately entitled to obtain an interest in, such Securities) and
the Netherlands or other jurisdiction in which the Company is organized or
engaged in business for tax purposes other than the mere holding of the
Securities; (ii) but for the failure to satisfy any certification,
identification or other reporting requirements whether imposed by statute,
treaty, regulation or administrative practice, provided that the Company
has delivered a request to the holder to comply with such requirements at
least 30 days prior to the date by which such compliance is required; (iii)
if the presentation of Securities (where presentation is required) for
payment has occurred within 30 days after the date such payment was due and
payable or was duly provided for, whichever is later; or (iv) if the
beneficial owner of, or
35
person ultimately entitled to obtain an interest in, such Securities had
been the holder of the Securities and would not be entitled to the payment
of Additional Amounts (excluding the impact of the book-entry procedures
described in Section 2.15). In addition, Additional Amounts will not be
payable with respect to any Tax which is payable otherwise than by
withholding from payments of, or in respect of principal of, or any
interest on, the Securities.
ARTICLE FIVE
MERGERS; SUCCESSOR CORPORATION
SECTION 5.01. Mergers, Sale of Assets, etc.
The Company shall not consolidate with or merge with or into (whether or
not the Company is the Surviving Person) any other Person and the Company
shall not, and shall not cause or permit any Restricted Subsidiary to,
sell, convey, assign, transfer, lease or otherwise dispose of all or
substantially all of the property and assets of the Company and the
Restricted Subsidiaries, taken as a whole, to any Person or Persons (other
than any Restricted Subsidiary), in each case, in a single transaction or
series of related transactions, unless: (i) either (x) the Company shall be
the Surviving Person or (y) the Surviving Person (if other than the
Company) shall be a corporation organized and validly existing under the
laws of The Netherlands, the United States of America or any State thereof
or the District of Columbia, and shall, in any such case, expressly assume
by a supplemental indenture, the due and punctual payment of the principal
of and interest on the Securities and the performance and observance of
every covenant of this Indenture and the Registration Rights Agreement to
be performed or observed on the part of the Company; (ii) immediately after
giving effect to such transaction, no Default shall have occurred and be
continuing; and (iii) immediately after giving effect to such transaction,
the Surviving Person (as the Company) could Incur at least $1.00 of
additional Indebtedness under Section 4.12(a).
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise, in a single transaction or series of transactions) of all or
substantially all the properties and assets of one or more Restricted
Subsidiaries the Equity Interests of which constitutes all or substantially
all the properties and assets of the Company shall be deemed to be the
transfer of all or substantially all the properties and assets of the
Company.
SECTION 5.02. Successor Corporation Substituted.
In the event of any transaction (other than a lease) described in and
complying with the conditions listed in the first paragraph of this
covenant in which the Company is not the Surviving Person and the Surviving
Person is to assume all the Obligations of the Company under the
Securities, this Indenture and the Registration Rights Agreement pursuant
to a supplemental indenture, such Surviving Person shall succeed to, and be
substituted for, and may exercise every right and power of, the Company and
the Company shall be discharged from its Obligations under the Securities,
this Indenture and the Registration Rights Agreement.
ARTICLE SIX
DEFAULT AND REMEDIES
SECTION 6.01. Events of Default.
Each of the following shall be an "Event of Default" for purposes of this
Indenture:
(1) failure to pay principal of any Security when due;
(2) failure to pay any interest on any Security when due, continued
for 30 days or more;
(3) failure to pay on the Purchase Date the Purchase Price for any
Security validly tendered pursuant to an Offer to Purchase;
(4) failure to perform or comply with any of the provisions of
Section 5.01;
(5) failure to perform any other covenant, warranty or agreement of
the Company under this Indenture or in the Securities, and the Default
continues for the period and after the notice specified in the last
paragraph of this Section 6.01;
(6) there shall be, with respect to any issue or issues of
Indebtedness of the Company or any Restricted Subsidiary having an
outstanding principal amount of $10.0 million or more in aggregate for
such issues of all such Persons, whether such Indebtedness now exists
or shall hereafter be created, (x) an event of default that has caused
the holders thereof (or their representative) (I) to declare such
Indebtedness to be due and payable prior to its scheduled maturity and
such Indebtedness has not been discharged in full or such acceleration
has not been rescinded or annulled within 45 days following such
acceleration and/or (II) to commence judicial proceeding to foreclose
upon, or to exercise remedies under applicable law or applicable
security documents to take ownership of, the property or assets
securing such Indebtedness and/or (y) the failure to make a principal
payment at the final (but not any interim) fixed
36
maturity and such defaulted payment shall not have been made, waived
or extended within 45 days of such payment default;
(7) there shall have been any final judgment or judgments against the
Company or any Restricted Subsidiary in an amount of $10.0 million or
more which remain undischarged or unstayed for a period of 60
consecutive days;
(8) the Company or any Significant Restricted Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) admits in writing its inability to pay its debts generally as
they become due,
(B) commences a voluntary case or proceeding,
(C) consents to the entry of an order for relief against it in an
involuntary case or proceeding,
(D) consents or acquiesces in the institution of a bankruptcy or
insolvency proceeding against it,
(E) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(F) makes a general assignment for the benefit of its creditors,
or any of them takes any action to authorize or effect any of the
foregoing; or
(9) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company or any Significant
Restricted Subsidiary in an involuntary case or proceeding,
(B) appoints a Custodian of the Company or any Significant
Restricted Subsidiary or for all or substantially all of its
property, or
(C) orders the liquidation of the Company or any Significant
Restricted Subsidiary, and in each case the order or decree
remains unstayed and in effect for 60 days; provided, however,
that if the entry of such order or decree is appealed and
dismissed on appeal, then the Event of Default hereunder by
reason of the entry of such order or decree shall be deemed to
have been cured.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar Federal,
state or foreign law for the relief of debtors. The term "Custodian" means
any receiver, trustee, assignee, liquidator, sequestrator or similar
official under any Bankruptcy Law.
A Default under clause (5) is not an Event of Default until the Trustee
notifies the Company, or the Holders of at least 25% in aggregate principal
amount of the outstanding Securities notify the Company and the Trustee, of
the Default in writing and the Company does not cure the Default within 30
days after receipt of the notice. The notice must specify the Default,
demand that it be remedied and state that the notice is a "Notice of
Default." Such notice shall be given by the Trustee if so requested by the
Holders of at least 25% in principal amount of the Securities then
outstanding. When a Default is cured, it ceases.
SECTION 6.02. Acceleration.
If an Event of Default with respect to the Securities (other than an Event
of Default specified in clause (8) or (9) of Section 6.01 with respect to
the Company) occurs and is continuing, the Trustee or the Holders of at
least 25% in aggregate principal amount of the outstanding Securities by
notice in writing to the Company may declare the unpaid principal of and
accrued interest to the date of acceleration on all outstanding Securities
to be due and payable immediately and, upon any such declaration, such
principal amount and accrued interest, notwithstanding anything contained
in this Indenture or the Securities to the contrary, shall become
immediately due and payable.
If an Event of Default specified in clause (8) or (9) of Section 6.01 with
respect to the Company occurs, all unpaid principal of and accrued interest
on all outstanding Securities shall ipso facto become immediately due and
payable without any declaration or other act on the part of the Trustee or
any Holder.
After a declaration of acceleration, but before a judgment or decree of the
money due in respect of the Securities has been obtained, the Holders of
not less than a majority in aggregate principal amount of the Securities
then outstanding by written notice to the Trustee may rescind an
acceleration and its consequences if all existing Events of Default (other
than the nonpayment of principal of and interest on the Securities which
has become due solely by virtue of such acceleration) have been cured or
waived and if the rescission would not conflict with any judgment or
decree. No such rescission shall affect any subsequent Default or impair
any right consequent thereto.
SECTION 6.03. Other Remedies.
If an Event of Default occurs and is continuing, the Trustee may pursue any
available remedy by proceeding at law or in equity to collect the payment
of principal of or interest on the Securities or to enforce the performance
of any provision of the Securities or this Indenture.
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The Trustee may maintain a proceeding even if it does not possess any of
the Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Securityholder in exercising any right or
remedy maturing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
Upon a declaration of acceleration of the Securities in accordance with
Section 6.02, the Trustee shall foreclose on all Collateral and take all
other actions permitted of a secured party under the UCC or otherwise.
SECTION 6.04. Waiver of Past Default.
Subject to Sections 2.09, 6.07 and 9.02, prior to the declaration of
acceleration of the Securities, the Holders of not less than a majority in
aggregate principal amount of the outstanding Securities by written notice
to the Trustee may waive an existing Default and its consequences, except a
Default in the payment of principal of or interest on any Security as
specified in Section 6.01(1) or (2) or a Default in respect of any term or
provision of this Indenture that may not be amended or modified without the
consent of each Holder affected as provided in Section 9.02. The Company
shall deliver to the Trustee an Officers' Certificate stating that the
requisite percentage of Holders have consented to such waiver and attaching
copies of such consents. In case of any such waiver, the Company, the
Trustee and the Holders shall be restored to their former positions and
rights hereunder and under the Securities, respectively. This paragraph of
this Section 6.04 shall be in lieu of Section 316(a)(1)(B) of the TIA and
such Section 316(a)(1)(B) of the TIA is hereby expressly excluded from this
Indenture and the Securities, as permitted by the TIA.
Upon any such waiver, such Default shall cease to exist and be deemed to
have been cured and not to have occurred, and any Event of Default arising
therefrom shall be deemed to have been cured and not to have occurred for
every purpose of this Indenture and the Securities, but no such waiver
shall extend to any subsequent or other Default or impair any right
consequent thereon.
SECTION 6.05. Control by Majority.
Subject to Section 2.09, the Holders of a majority in principal amount of
the outstanding Securities may direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may
refuse to follow any direction that conflicts with law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of
another Securityholder, or that may involve the Trustee in personal
liability; provided, however, that the Trustee may take any other action
deemed proper by the Trustee which is not inconsistent with such direction.
In the event the Trustee takes any action or follows any direction pursuant
to this Indenture, the Trustee shall be entitled to indemnification
satisfactory to it in its sole discretion against any loss or expense
caused by taking such action or following such direction. This Section 6.05
shall be in lieu of Section 316(a)(1)(A) of the TIA, and such Section
316(a)(1)(A) of the TIA is hereby expressly excluded from this Indenture
and the Securities, as permitted by the TIA.
SECTION 6.06. Limitation on Suits.
A Securityholder may not pursue any remedy with respect to this Indenture
or the Securities unless:
(i) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(ii) the Holders of at least 25% in aggregate principal amount of the
outstanding Securities make a written request to the Trustee to pursue
a remedy;
(iii) such Holder or Holders offer and, if requested, provide to the
Trustee indemnity reasonably satisfactory to the Trustee against any
loss, liability or expense;
(iv) the Trustee does not comply with the request within 60 days
after receipt of the request; and
(v) during such 60-day period the Holders of a majority in principal
amount of the outstanding Securities (excluding Affiliates of the
Company) do not give the Trustee a direction which, in the opinion of
the Trustee, is inconsistent with the request.
A Securityholder may not use this Indenture to prejudice the rights of
another Securityholder or to obtain a preference or priority over such
other Securityholder.
SECTION 6.07. Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of principal of or interest on a Security, on or
after the respective due dates therefor, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall
not be impaired or affected without the consent of the Holder.
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SECTION 6.08. Collection Suit by Trustee.
If an Event of Default in payment of principal or interest specified in
Section 6.01(1) or (2) 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 on the Securities for the whole amount of
principal and accrued interest remaining unpaid, together with interest
overdue on principal and to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the
rate per annum borne by the Securities 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 the
Securityholders allowed in any judicial proceedings relative to the Company
(or any other obligor upon the Securities), its creditors or its property
and shall be entitled and empowered to collect and receive any monies or
other property payable or deliverable on any such claims and to distribute
the same, and any Custodian in any such judicial proceedings is hereby
authorized by each Securityholder 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 Securityholders, 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 authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.10. Priorities.
If the Trustee collects any money or property pursuant to this Article Six
it shall pay out the money or property in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to Holders for amounts due and unpaid on the Securities for
principal and interest, ratably, without preference or priority of any
kind, according to the amounts due and payable on the Securities for
principal and interest, respectively; and
Third: to the Company.
The Trustee, upon prior written notice to the Company, may fix a record
date and payment date for any payment to Securityholders 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 in its discretion may require the filing by any party
litigant in the suit of an undertaking to pay the costs of the suit, and
the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees 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 shall not apply to a
suit by the Trustee, a suit by a Holder or group of Holders of more than
10% in aggregate principal amount of the outstanding Securities, or to any
suit instituted by any Holder for the enforcement or the payment of the
principal or interest on any Securities on or after the respective due
dates therefor.
ARTICLE SEVEN
TRUSTEE
SECTION 7.1. Duties of Trustee.
(a) If a Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of such
person's own affairs.
(b) Except during the continuance of a Default:
(1) The Trustee shall not be liable except for the performance of
such duties as are specifically set forth herein and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions conforming to the requirements of this Indenture; however, in
the case of any such certificates or opinions which by any provision
hereof are specifically required to be
39
furnished to the Trustee, the Trustee shall examine such certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(1) This paragraph does not limit the effect of paragraph (b) of this
Section 7.01;
(2) The Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) The Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) 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 to take or omit to take any
action under this Indenture or take any action at the request or direction
of Holders if it shall have reasonable grounds for believing that repayment
of such funds is not assured to it or it does not receive from such Holders
an indemnity or security satisfactory to it in its sole discretion against
such risk, liability, loss, fee or expense which might be incurred by it in
compliance with such request or direction.
(e) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (d) of this Section
7.01.
(f) The Trustee shall not be liable for interest on any money received by
it. Money held in trust by the Trustee need not be segregated from other
funds except to the extent required by law.
SECTION 7.02. Rights of Trustee.
Subject to Section 7.01:
(a) The Trustee may rely on any document believed by it to be genuine and
to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate and/or an Opinion of Counsel, which shall conform to
the provisions of Section 10.05. The Trustee shall not be liable for any
action it takes or omits to take in good faith in reliance on such
certificate or opinion.
(c) The Trustee may act through attorneys and agents of its selection and
shall not be responsible for the misconduct or negligence of any agent or
attorney (other than an agent who is an employee of the Trustee) appointed
with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it reasonably believes to be authorized or within
its rights or powers.
(e) The Trustee may consult with counsel of its selection and the advice
or opinion of such counsel as to matters of law shall be full and complete
authorization and protection from liability in respect of any action taken,
omitted or suffered by it hereunder in good faith and in accordance with
the advice or opinion of such counsel.
(f) Any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution.
(g) 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 Securityholders pursuant to this Indenture, unless such
Securityholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction.
(h) The Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the
Company, personally or by agent or attorney.
(i) The Trustee shall not be deemed to have notice of any Event of Default
unless a Trust Officer of the Trustee has actual knowledge thereof or
unless the Trustee shall have received written notice thereof at the
Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
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SECTION 7.03. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the owner or
pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee,
subject to Section 7.10 hereof. Any Agent may do the same with like rights.
However, the Trustee is subject to Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as to
the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use of the proceeds from the Securities,
and it shall not be responsible for any statement of the Company in this
Indenture or any document issued in connection with the sale of Securities
or any statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 7.05. Notice of Defaults.
If a Default occurs and is continuing and the Trustee actually knows of
such Default, the Trustee shall mail to each Securityholder notice of the
Default within 30 days after the occurrence thereof. Except in the case of
a Default in payment of principal of or interest on any Security the
Trustee may withhold the notice if and so long as a committee of its Trust
Officers in good faith determines that withholding the notice is in the
interest of Securityholders. This Section 7.05 shall be in lieu of the
proviso to Section 315(b) of the TIA and such proviso to Section 315(b) of
the TIA is hereby expressly excluded from this Indenture and the
Securities, as permitted by the TIA.
SECTION 7.06. Reports by Trustee to Holders.
If required by TIA Section 313(a), within 60 days after each September 1
beginning with September 1, 1999, the Trustee shall mail to each
Securityholder a report dated as of such September 1 that complies with TIA
Section 313(a). The Trustee also shall comply with TIA Section 313(b), (c)
and (d).
A copy of each such report at the time of its mailing to Securityholders
shall be filed with the SEC and each stock exchange, if any, on which the
Securities are listed.
The Company shall promptly notify the Trustee in writing if the Securities
become listed on any stock exchange or of any delisting thereof.
SECTION 7.07. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
its services. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse
the Trustee upon request for all reasonable disbursements, expenses and
advances (including fees, disbursements and expenses of its agents and
counsel) incurred or made by it in addition to the compensation for its
services except any such disbursements, expenses and advances as may be
attributable to the Trustee's negligence or bad faith. Such expenses shall
include the reasonable compensation, disbursements and expenses of the
Trustee's agents, accountants, experts and counsel and any taxes or other
expenses incurred by a trust created pursuant to Section 8.01 hereof.
The Company shall indemnify the Trustee, its agents and officers, for, and
hold it harmless against any and all loss, damage, claims, liability or
expense, including taxes (other than franchise taxes imposed on the Trustee
and taxes based upon, measured by or determined by the income of the
Trustee), arising out of or in connection with the acceptance or
administration of the trust or trusts hereunder, including the costs and
expenses of defending itself against any claim or liability in connection
with the exercise or performance of any of its powers or duties hereunder,
except to the extent that such loss, damage, claim, liability or expense is
due to its own negligence or bad faith. The Trustee shall notify the
Company promptly of any claim asserted against the Trustee for which it may
seek indemnity. However, the failure by the Trustee to so notify the
Company shall not relieve the Company of its obligations hereunder. The
Company shall defend the claim and the Trustee shall cooperate in the
defense (and may employ its own counsel) at the Company's expense;
provided, however, that the Company's reimbursement obligation with respect
to counsel employed by the Trustee will be limited to the reasonable fees
and expenses of such counsel.
The Company need not pay for any settlement made without its written
consent, which consent shall not be unreasonably withheld.
To secure the Company's payment obligations in this Section 7.07, the
Trustee shall have a Lien prior to the Securities against 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 or interest on
particular Securities or the Purchase Price or redemption
41
price of any Securities to be purchased or pursuant to an Offer to Purchase
or redeemed.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(8) or (9) occurs, the expenses (including
the reasonable fees and expenses of its agents and counsel) and the
compensation for the services shall be preferred over the status of the
Holders in a proceeding under any Bankruptcy Law and are intended to
constitute expenses of administration under any Bankruptcy Law. The
Company's obligations under this Section 7.07 and any claim arising
hereunder shall survive the resignation or removal of any Trustee, the
discharge of the Company's obligations pursuant to Article Eight and any
rejection or termination under any Bankruptcy Law, and the termination of
this Indenture.
SECTION 7.08. Replacement of Trustee.
The Trustee may resign at any time by so notifying the Company in writing.
The Holders of a majority in principal amount of the outstanding Securities
may remove the Trustee by so notifying the Trustee and the Company in
writing and may appoint a successor Trustee with the Company's consent. The
Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged a bankrupt or an insolvent under any
Bankruptcy Law;
(3) a custodian or other public officer takes charge of the Trustee
or its property; or
(4) 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 Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes
office, the Holders of a majority in principal amount of the Securities may
appoint a successor Trustee to replace the successor Trustee appointed by
the Company.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. As promptly as practicable
after that, the retiring Trustee shall transfer, after payment of all sums
then owing to the Trustee pursuant to Section 7.07, all property held by it
as Trustee to the successor Trustee, subject to the Lien provided in
Section 7.07, the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have the rights, powers
and duties of the Trustee under this Indenture. A successor Trustee shall
mail notice of its succession to each Securityholder.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company
or the Holders of at least 10% in principal amount of the outstanding
Securities may petition, at the expense of the Company, any court of
competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08,
the Company's obligations 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 banking corporation, the resulting, surviving or transferee
corporation or banking corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee which shall be eligible to act
as Trustee under TIA Sections 310(a)(1), 310(a)(2) and 310(a)(5).
The Trustee shall have a combined capital and surplus of at least
$50,000,000 as set forth in its most recent published annual report of
condition. If the Trustee has or shall acquire any "conflicting interest"
within the meaning of TIA Section 310(b), the Trustee and the Company shall
comply with the provisions of TIA Section 310(b); provided, however, that
there shall be excluded from the operation of TIA Section 310(b)(1) any
indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are
outstanding if the requirements for such exclusion set forth in TIA Section
310(b)(1) are met. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.10, the Trustee shall
resign immediately in the manner and with the effect hereinbefore specified
in this Article Seven.
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SECTION 7.11. Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or
been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE EIGHT
DISCHARGE OF INDENTURE
SECTION 8.01. Termination of Company's Obligations.
The Company may terminate its substantive obligations in respect of the
Securities by delivering all outstanding Securities to the Trustee for
cancellation and paying all sums payable by it on account of principal of
and interest on all Securities or otherwise. In addition to the foregoing,
the Company may terminate its obligation under Sections 4.04, 4.06, 4.08,
4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18, 4.19 and 4.20 (and no
Default with respect to such Sections under Section 6.01(5) shall
thereafter apply), by (i) depositing with the Trustee, under the terms of
an irrevocable trust agreement, money or U. S. Government Obligations
sufficient (without reinvestment) to pay all remaining indebtedness on the
Securities at maturity or an earlier redemption, (ii) delivering to the
Trustee either an Opinion of Counsel or a ruling directed to the Trustee
from the Internal Revenue Service to the effect that the Holders of the
Securities will not recognize income, gain or loss for federal income tax
purposes as a result of such deposit and termination of obligations, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this paragraph will not result in
any of the Company, the Trustee or the trust created by the Company's
deposit of funds pursuant to this provision becoming or being deemed to be
an "investment company" under the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and (iv) delivering to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating compliance
with all conditions precedent provided for herein. In addition, the Company
may, provided that no Default has occurred and is continuing or would arise
therefrom (or, with respect to a Default specified in Section 6.01(8) or
(9), occurs at any time on or prior to the 91st calendar day after the date
of such deposit (it being understood that this condition shall not be
deemed satisfied until after such 91st day)), terminate all of its
substantive obligations in respect of the Securities (including its
obligations to pay the principal of and interest on the Securities) by (i)
depositing with the Trustee, under the terms of an irrevocable trust
agreement, money or U.S. Government Obligations sufficient (without
reinvestment) to pay all remaining indebtedness on the Securities at
maturity or upon earlier redemption, (ii) delivering to the Trustee either
a ruling directed to the Trustee from the Internal Revenue Service to the
effect that the Holders of the Securities will not recognize income, gain
or loss for federal income tax purposes as a result of such deposit and
termination of obligations or an Opinion of Counsel addressed to the
Trustee based upon such a ruling or based on a change in the applicable
Federal tax law since the date of this Indenture to such effect, (iii)
delivering to the Trustee an Opinion of Counsel to the effect that the
Company's exercise of its option under this paragraph will not result in
any of the Company, the Trustee or the trust created by the Company's
deposit of funds pursuant to this provision becoming or being deemed to be
an "investment company" under the Investment Company Act and (iv)
delivering to the Trustee an Officers' Certificate and an Opinion of
Counsel each stating compliance with all conditions precedent provided for
herein.
Notwithstanding the foregoing paragraph, the Company's obligations under
Sections 2.02, 2.03, 2.04, 2.05, 2.06, 2.07, 2.10, 2.12, 2.13 and 4.01 (but
not with respect to termination of substantive obligations pursuant to the
third sentence of the foregoing paragraph), 4.02, 7.07, 7.08, 8.03 and 8.04
shall survive until the Securities are no longer outstanding. Thereafter
the Company's obligations in Sections 7.07, 8.03 and 8.04 shall survive.
After such delivery or irrevocable deposit and delivery of an Officers'
Certificate and Opinion of Counsel, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations under the
Securities and this Indenture except for those surviving obligations
specified above.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U. S. Government
Obligations deposited pursuant to this Section 8.01 or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of outstanding
Securities.
SECTION 8.02. Application of Trust Money.
The Trustee shall hold in trust money or U. S. Government Obligations
deposited with it pursuant to Section 8.01, and shall apply the deposited
money and the money from
43
United States Government Obligations in accordance with this Indenture
solely to the payment of principal of and interest on the Securities.
SECTION 8.03. Repayment to Company.
Subject to Sections 7.07 and 8.01, the Trustee shall promptly pay to the
Company upon written request any excess money held by it at any time. The
Trustee shall pay to the Company upon written request any money held by it
for the payment of principal or interest that remains unclaimed for two
years; provided, however, that the Trustee before being required to make
any payment may at the expense of the Company cause to be published once in
a newspaper of general circulation in The City of New York and in a
newspaper of general circulation in Luxembourg (which is expected to be the
Luxemburger Wort) or mail to each Holder entitled to such money 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 shall be repaid to the
Company. After payment to the Company, Securityholders entitled to money
must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and all
liability of the Trustee or Paying Agent with respect to such money shall
thereupon cease.
SECTION 8.04. Reinstatement.
If the Trustee is unable to apply any money or U.S. Government Obligations
in accordance with Section 8.01 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 Securities shall be
revived and reinstated as though no deposit had occurred pursuant to
Section 8.01 until such time as the Trustee is permitted to apply all such
money or U.S. Government Obligations in accordance with Section 8.01;
provided, however, that if the Company has made any payment of interest on
or principal of any Securities because of the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders
of such Securities to receive such payment from the money or U.S.
Government Obligations held by the Trustee.
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 Securities
without notice to or consent of any Securityholder:
(i) to cure any ambiguity, defect or inconsistency; provided,
however, that such amendment or supplement does not materially
adversely affect the rights of any Holder;
(ii) to effect the assumption by a successor Person of all
obligations of the Company under the Securities, this Indenture and
the Registration Rights Agreement in connection with any transaction
complying with Article Five of this Indenture;
(iii) to provide for uncertificated Securities in addition to or in
place of certificated Securities;
(iv) to comply with any requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(v) to make any change that would provide any additional benefit or
rights to the Holders;
(vi) to make any other change that does not materially adversely
affect the rights of any Holder under this Indenture;
(vii) to add to the covenants of the Company for the benefit of the
Holders, or to surrender any right or power herein conferred upon the
Company; or
(viii) to secure the Securities pursuant to the requirements of
Section 4.20 or otherwise;
provided, however, that the Company has delivered to the Trustee an Opinion
of Counsel stating that such amendment or supplement complies with the
provisions of this Section 9.01.
SECTION 9.02. With Consent of Holders.
Subject to Section 6.07, the Company, when authorized by a resolution of
its Board of Directors, and the Trustee may amend or supplement this
Indenture or the Securities with the written consent of the Holders of a
majority in principal amount of the outstanding Securities. Subject to
Section 6.07, the Holders of a majority in principal amount of the
outstanding Securities may waive compliance by the Company with any
provision of this Indenture or the Securities. However, without the consent
of the Holder of each Security affected, an amendment, supplement or
waiver, including a waiver pursuant to Section 6.04, may not:
44
(1) change the maturity of the principal of any such Security;
(2) alter the optional redemption or repurchase provisions of any
such Security or this Indenture in a manner adverse to the Holders of
such Security;
(3) reduce the principal amount of any such Security;
(4) reduce the rate of or extend the time for payment of interest on
any such Security;
(5) change the place or currency of payment of the principal of or
interest on any such Security;
(6) modify any provisions of Section 6.04 (other than to add sections
of this Indenture or the Securities subject thereto) or 6.07 or this
Section 9.02 (other than to add sections of this Indenture or the
Securities which may not be amended, supplemented or waived without
the consent of each Securityholder affected);
(7) reduce the percentage of the principal amount of outstanding
Securities necessary for amendment to or waiver of compliance with any
provision of this Indenture or the Securities or for waiver of any
Default in respect thereof;
(8) waive a default in the payment of the principal of or interest on
or redemption payment with respect to any such Security (except a
rescission of acceleration of the Securities by the Holders as
provided in Section 6.02 and a waiver of the payment default that
resulted from such acceleration);
(9) modify the ranking or priority of such Security; or
(10) modify the provisions of any covenant (or the related definitions
in this Indenture) requiring the Company to make any Offer to Purchase
in a manner materially adverse to the Holders.
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. 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.
SECTION 9.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the Securities shall
comply with the TIA as then in effect.
SECTION 9.04. Revocation and Effect of Consents.
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 that
Security or portion of that Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made
on any Security. Subject to the following paragraph, any such Holder or
subsequent Holder may revoke the consent as to such Holder's Security or
portion of such Security by notice to the Trustee or the Company received
before the date on which the Trustee receives an Officers' Certificate
certifying that the Holders of the requisite principal amount of Securities
have consented (and not theretofore revoked such consent) to the amendment,
supplement or waiver.
The Company may, but shall not be obligated to, fix a record date for the
purpose of determining the Holders of Securities entitled to consent to any
amendment, supplement or waiver. If a record date is fixed, then,
notwithstanding the last sentence of the immediately preceding paragraph,
those persons who were Holders of Securities 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 of
such Securities 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 Securityholder, unless it makes a change described in any of clauses
(1) through (10) of Section 9.02. In that case the amendment, supplement or
waiver shall bind each Holder of a Security who has consented to it and
every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
SECTION 9.05. Notation on or Exchange of Securities.
If an amendment, supplement or waiver changes the terms of a Security, the
Trustee may require the Holder of the Security to deliver it to the
Trustee. The Trustee may place an appropriate notation on the Security
about the changed terms and return it to the Holder. Alternatively, if the
Company or the Trustee so determines, the Company in exchange for the
Security shall issue and the Trustee shall authenticate a new
45
Security that reflects the changed terms. Failure to make the appropriate
notation or issue a new Security shall not affect the validity and effect
of such amendment, supplement or waiver.
SECTION 9.06. 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 or permitted by this Indenture and that such amendment,
supplement or waiver constitutes the legal, valid and binding obligation of
the Company, enforceable in accordance with its terms (subject to customary
exceptions). The Trustee may, but shall not be obligated to, execute any
such amendment, supplement or waiver which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise. In signing
any amendment, supplement or waiver, the Trustee shall be entitled to
receive an indemnity reasonably satisfactory to it.
ARTICLE TEN
MISCELLANEOUS
SECTION 10.01. Trust Indenture Act Controls.
This Indenture is 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. If any provision of this Indenture modifies
any TIA provision that may be so modified, such TIA provision shall be
deemed to apply to this Indenture as so modified. If any provision of this
Indenture excludes any TIA provision that may be so excluded, such TIA
provision shall be excluded from this Indenture.
The provisions of TIA Section Section 310 through 317 that impose duties on
any Person (including the provisions automatically deemed included unless
expressly excluded by this Indenture) are a part of and govern this
Indenture, whether or not physically contained herein.
SECTION 10.02. Notices.
Any notice or communication shall be sufficiently given if in writing and
delivered in person, by facsimile and confirmed by overnight courier, or
mailed by first-class mail addressed as follows:
if to the Company:
Hermes Europe Railtel X.X.
Xxxxxxxxxxxxxxxxx 0X
0000 Xxxxxxxxx
Xxxxxxx
Attention: Chief Executive Officer
Facsimile: 00-0-000-0000
Telephone: 00-0-000-0000
with a copy to:
Global TeleSystems Group, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxx 00xx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
and
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxxx, Xx.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Trustee Administration
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
46
if to the Paying Agent:
The Bank of New York, London branch
00 Xxxxxxxx Xxxxxx
Xxxxxx, XXX 0XX
Xxxxxxx
Attention: Corporate Trust Administration
Facsimile: 00-000-000-0000
Telephone: 00-000-000-0000
if to the Luxembourg Paying and Transfer Agent:
Banque Internationale a Luxembourg
00, xxxxx x'Xxxx
X-0000 Xxxxxxxxxx
Facsimile: (000) 0000-0000
Telephone: (000) 0000-0000
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section
310(b), TIA Section 313(c), TIA Section 314(a) and TIA Section 315(b),
shall be mailed to him at his address as set forth on the Security Register
and shall be sufficiently given to him if so mailed within the time
prescribed. To the extent required by the TIA, any notice or communication
shall also be mailed to any Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other
Securityholders. Except for a notice to the Trustee, which is deemed given
only when received, if a notice or communication is mailed in the manner
provided above, it is duly given, whether or not the addressee receives it.
SECTION 10.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person
shall have the protection of TIA Section 312(c).
SECTION 10.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take or
refrain from taking any action under this Indenture, the Company shall
furnish to the Trustee at the request of the Trustee:
(1) an Officers' Certificate in form and substance satisfactory to
the Trustee 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
(2) an Opinion of Counsel in form and substance satisfactory to the
Trustee stating that, in the opinion of such counsel, all such
conditions precedent have been complied with.
SECTION 10.05. Statements Required in Certificate or Opinion.
Each certificate (other than the certificates provided pursuant to Section
4.07) or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion
has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express
an informed opinion as to whether such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of such person, such
condition or covenant has 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 10.06. Rules by Trustee, Paying Agent, Registrar.
The Trustee may make reasonable rules for action by or at a meeting of
Securityholders. The Paying Agent or Registrar may make reasonable rules
for its functions.
47
SECTION 10.07. Governing Law.
The laws of the State of New York shall govern this Indenture and the
Securities without regard to principles of conflicts of law.
SECTION 10.08. No Recourse Against Others.
A director, officer, employee, incorporator or stockholder of the Company
or any of its Affiliates, as such, shall not have any liability for any
obligations of the Company or any of its Affiliates under the Securities or
this Indenture or for any claim based on, in respect of, or by reason of,
such obligations or their creation. Each Holder by accepting a Security
waives and releases all such liability.
SECTION 10.09. Successors.
All agreements of the Company in this Indenture and the Securities shall
bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
SECTION 10.10. Counterpart Originals.
The parties may sign any number of copies of this Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
SECTION 10.11. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected
or impaired thereby, and a Holder shall have no claim therefor against any
party hereto.
SECTION 10.12. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
SECTION 10.13. Legal Holidays.
If a payment date is a not a Business Day at a place of payment, payment
may be made at that place on the next succeeding Business Day, and no
interest shall accrue for the intervening period.
SECTION 10.14. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities.
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instruments, designated and
appointed CT Corporation System, 0000 Xxxxxxxx, Xxx Xxxx, XX 00000 ("CT
Corporation System") (and any successor entity), as its authorized agent
upon which process may be served in any suit or proceeding arising out of
or relating to this Indenture that may be instituted in any federal or
state court in the Borough of Manhattan, City of New York, State of New
York or brought under federal or state securities laws, and represent and
warrant that CT Corporation System has accepted such designation, (ii)
submit to the jurisdiction of any such court in any such suit or proceeding
and (iii) agree that service of process upon CT Corporation System and
written notice of said service to the Company, in accordance with Section
10.02 shall be deemed in every respect effective service of process upon
the Company in any such suit or proceeding. The Company further agrees to
take any and all action, including the execution and filing of any and all
such documents and instruments, as may be necessary to continue such
designation and appointment of CT Corporation System in full force and
effect for as long as any of the Securities remain outstanding (subject to
the limitation set forth in clause (i)); provided, however, that the
Company may, and to the extent CT Corporation System ceases to be able to
be served on the basis contemplated herein shall, by written notice to the
Trustee, designate such additional or alternative agent for service of
process under this Section 10.14 that (i) maintains an office located in
the Borough of Manhattan, City of New York, State of New York, and (ii) is
either (x) United States counsel for the Company or (y) a corporate service
company which acts as agent for service of process for other persons in the
ordinary course of its busineSection Such written notice shall identify the
name of such agent for service of process and the address of the office of
such agent for service of process in the Borough of Manhattan, City of New
York, State of New York.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court of (i) any jurisdiction in which the Company
owns or leases property or assets, (ii) the United States or the State of
New York or (iii) the Netherlands or from any legal process (whether
through service of notice, attachment prior to judgment, attachment in aid
of execution, execution or otherwise) with respect to itself or its
property and assets or this Agreement or any of the Notes or actions to
enforce judgments in respect of any thereof, the Company hereby irrevocably
waives such immunity in respect of its obligations under the
above-referenced documents, to the extent permitted by law.
48
SECTION 10.15. Judgment Currency.
The Company hereby agrees to indemnify the Trustee, its directors, its
officers and each person, if any, who controls the Trustee within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any loss incurred by such person as a result of any judgment or order being
given or made against the Company for any U.S. dollar amount due under this
Agreement and such judgment or order being expressed and paid in a currency
(the "Judgment Currency") other than United States dollars and as a result
of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the Judgment Currency for the
purpose of such judgment or order and (ii) the spot rate of exchange in The
City of New York at which such party on the date of payment of such
judgment or order is able to purchase United States dollars with the amount
of the Judgment Currency actually received by such party. The foregoing
indemnity shall continue in full force and effect notwithstanding any such
judgment or order as aforesaid. The term "spot rate of exchange" shall
include any premiums and costs of exchange payable in connection with the
purchase of, or conversion into, United States dollars.
[Signature Page Follows]
49
SIGNATURES
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the date first written above.
HERMES EUROPE RAILTEL B.V.
By: /s/ FRANCOIS NOTE
Name: Francois Note
Title: Corporate Financial Director
THE BANK OF NEW YORK,
as Trustee
By: /s/ XXXXXX XXXXXXX
Name: Xxxxxx Xxxxxxx
Title: Vice President
50
EXHIBIT A
[FORM OF SERIES A SECURITY]
"THIS NOTE (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
ACCORDINGLY, MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST
HEREIN, THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT) (A "QIB"), (B) IT IS ACQUIRING THIS NOTE IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT
OR (C) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN
RULE 501(A)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT (AN "IAI") (2) AGREES THAT IT WILL NOT, RESELL OR OTHERWISE
TRANSFER THIS NOTE EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QIB PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QIB IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (C) IN AN OFFSHORE
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 OF THE SECURITIES
ACT, (D) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER
THE SECURITIES ACT, (E) TO AN IAI THAT, PRIOR TO SUCH TRANSFER,
FURNISHES THE TRUSTEE A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE TRANSFER OF THIS NOTE
(THE FORM OF WHICH CAN BE OBTAINED FROM THE TRUSTEE) AND, IF SUCH
TRANSFER IS IN RESPECT OF AN AGGREGATE PRINCIPAL AMOUNT OF NOTES LESS
THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE COMPANY THAT
SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (F) IN
ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL ACCEPTABLE
TO THE COMPANY) OR (G) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
AND, IN EACH CASE, IN ACCORDANCE WITH THE APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION
AND (3) AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE
OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE
EFFECT OF THIS LEGEND. AS USED HEREIN, THE TERMS "OFFSHORE
TRANSACTION" AND "UNITED STATES" HAVE THE MEANINGS GIVEN TO THEM BY
RULE 902 OF REGULATION S UNDER THE SECURITIES ACT. THE INDENTURE
CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY
TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING.
51
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2006
No. $_______ CUSIP No.:_________
HERMES EUROPE RAILTEL B.V., a Netherlands limited company (the "Company", which
term includes any successor corporation), for value received promises to pay to
or registered assigns, the principal sum of
Euro, on January 15, 2006.
Interest Payment Dates: January 15 and July 15, commencing July 15, 1999.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained herein,
which will for all purposes have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed manually
or by facsimile by its duly authorized officer.
HERMES EUROPE RAILTEL B.V.
By:
-----------------------------------
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/8% Senior Notes due 2006, described in the
within-mentioned Indenture.
Dated: January 4, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
-----------------------------------
Authorized Signatory
52
(REVERSE OF SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2006
1. Interest.
HERMES EUROPE RAILTEL B.V., a Netherlands limited company (the "Company"),
promises to pay interest on the principal amount of this Security at the
rate per annum shown above. Cash interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from January 4, 1999. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing July 15,
1999. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest on overdue principal from time to time on
demand at the rate borne by the Securities and on overdue installments of
interest (without regard to any applicable grace periods) at the rate borne
by the Securities to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Interest Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Interest Record Date.
Payments of principal, premium, if any, and interest will be made (in the
case of payments of principal, on presentation of such Securities if in
certificated form) by credit or transfer to a Euro account maintained by
the Holder in the place of payment specified by the Holder. Holders of
Securities who receive payment in any currency other than the Euro must
make arrangements at their own expense. The Company shall deliver any such
interest, principal or other payment to the Paying Agent no later than
12:00 noon London time on the Business Day prior to the date such payment
is due.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act through its London
branch as Paying Agent and as Registrar in London, and Banque
Internationale a Luxembourg S.A. will act as Paying Agent and Registrar in
Luxembourg. The Company may change any Paying Agent or Registrar without
notice to the Holders. The Company or any of its Subsidiaries may, subject
to certain exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of January
4, 1999 (the "Indenture"), between the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which
the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and holders
of Securities are referred to the Indenture and the TIA for a statement of
them. This is one of the Series A Securities referred to in the Indenture.
The Series A Securities and the Series B Securities referred to in the
Indenture are general obligations of the Company limited in aggregate
principal amount to Euro 85,000,000.
5. Optional Redemption.
(a) The Securities will be redeemable at the option of the Company, in
whole or in part, at any time or from time to time, on or after January 15,
2003 at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any,
to the redemption date if redeemed during the twelve-month period
commencing on January 15 of the years set forth below:
Year Redemption Price
2003 105.188%
2004 102.594%
2005 and thereafter 100.000%
(b) Redemption Upon Public Equity Offering or Strategic Equity Investment.
At any time, or from time to time, prior to January 15, 2002, the
Company may redeem Securities at a redemption price equal to 110.375%
of the principal amount of the Securities so redeemed, plus accrued
and unpaid interest thereon, if any, to the redemption date, with the
net cash proceeds of one or more Public Equity Offerings or Strategic
Equity Investments resulting in aggregate gross cash proceeds to the
Company of at least $75.0 million; provided, however, that at least
two-thirds of the principal amount of Securities originally issued
would remain outstanding immediately after giving effect to any such
redemption (excluding any Securities owned by the Company or any of
its Affiliates). Notice of any such redemption must be given within 60
days after the date of the last Public Equity Offering or Strategic
Equity Investment resulting in gross cash proceeds to the Company,
when aggregated with all prior Public Equity Offerings and Strategic
Equity Investments, of at least $75.0 million.
(c) Redemption for Changes in Withholding Taxes.
The Company may, at its option, redeem all (but not less than all) of
the Securities then outstanding at 100% of the principal amount
thereof, plus accrued and unpaid interest,
53
if any, to the date of redemption, if the Company has become or would
become obligated to pay, on the next date on which any amount would be
payable with respect to the Securities, any Additional Amounts as a
result of change in law (including any regulations promulgated
thereunder) or in the interpretation or administration thereof, if
such change is announced and becomes effective on or after the Issue
Date. Notice of any such redemption must be given within 60 days of
the earlier of the announcement and the effectiveness of any such
change.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at its registered address;
provided, however, that notice of redemption pursuant to paragraph
5(b) of this Security will be mailed to each Holder of Securities to
be redeemed no later than 60 days following the consummation of the
last Public Equity Offering resulting in gross cash proceeds to the
Company, when aggregated with all prior Public Equity Offerings, of at
least $75.0 million. The Company will cause a copy of such notice to
be published in a daily newspaper with general circulation in
Luxembourg (which is expected to the Luxemburger Wort). The Trustee
may select for redemption portions of the principal amount of
Securities that have denominations equal to or larger than Euro 1,000
principal amount. Securities and portions of them the Trustee so
selects shall be in amounts of Euro 1,000 principal amount or integral
multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of
the principal amount thereof to be redeemed. A new Security in a
principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the
original Security. On and after the Redemption Date, interest will
cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent
for the Securities funds in satisfaction of the redemption price
pursuant to the Indenture.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all outstanding Securities at a purchase
price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Purchase
Date. The Company will cause a copy of such notice to be published in
a daily newspaper with general circulation in Luxembourg (which is
expected to the Luxemburger Wort).
8. Limitation on Disposition of Assets.
Upon the occurrence of certain Asset Sales, the Company is, subject to
certain conditions, obligated to make an offer to purchase Securities
at a purchase price in cash equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of Euro 1,000 and integral multiples of Euro 1,000. A
Holder shall register the transfer of or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange any
Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to
the Company at its written request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
12. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained
in the Indenture and the Securities, in each case upon satisfaction of
certain conditions specified in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at
least a majority in aggregate
54
principal amount of the Securities then outstanding, and any existing
Default or compliance with any provision may be waived with the
consent of the Holders of a majority in aggregate principal amount of
the Securities then outstanding. Without notice to or consent of any
Holder, the parties thereto may amend or supplement the Indenture and
the Securities to, among other things, cure any ambiguity, defect or
inconsistency, provide for uncertificated Securities in addition to or
in place of certificated Securities, effect the assumption by a
successor person of all obligations of the Company under the
Securities, the Indenture and the Registration Rights Agreement in
connection with any transaction complying with Article Five of the
Indenture or comply with any requirements of the SEC in connection
with the qualification of the Indenture under the TIA, or make any
other change that does not materially adversely affect the rights of
any Holder of a Security.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to
make restricted payments, to incur indebtedness, to create liens, to
sell assets, to permit restrictions on dividends and other payments to
become applicable to Restricted Subsidiaries, to consolidate, merge or
sell all or substantially all of its assets, to engage in transactions
with affiliates or certain other related persons. The limitations are
subject to a number of important qualifications and exceptions. The
Company must annually report to the Trustee on compliance with such
limitations.
15. Defaults and Remedies.
If an Event of Default (other than certain events of bankruptcy,
insolvency or reorganization affecting the Company) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of Securities then outstanding by notice in writing
to the Company may declare all the Securities to be due and payable
immediately in the manner and with the effect provided in the
Indenture. If certain events of bankruptcy, insolvency or
reorganization affecting the Company occur under the Indenture, the
Securities will ipso facto become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder
of Securities. Holders of Securities may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has
received indemnity reasonably satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Securities then
outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Securities notice of
certain continuing Defaults if it determines that withholding notice
is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any of its Affiliates shall have any liability for
any obligation of the Company or any of its Affiliates under the
Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
0 the issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the
accuracy of such numbers as printed on the Securities and reliance may
be placed only on the other identification numbers printed hereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws.
55
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
---------------------------- --------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor program reasonably acceptable to
the Trustee)
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.10 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.10 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.10 or Section 4.16 of the Indenture,
state the amount: Euro _____________
Dated:___________________ Your Signature:
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
56
EXHIBIT B
(FORM OF SERIES B SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2006, Series B
No. $_________ CUSIP No.:_________
HERMES EUROPE RAILTEL B.V., a Netherlands limited company (the "Company"),
which term includes any successor corporation), for value received promises to
pay to or registered assigns, the principal sum of Euro, on January 15, 2006.
Interest Payment Dates: January 15 and July 15, commencing July 15, 1999.
Interest Record Dates: January 1 and July 1.
Reference is made to the further provisions of this Security contained
herein, which will for all purposes have the same effect as if set forth at this
place.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officer.
HERMES EUROPE RAILTEL B.V.
By:
----------------------------------------
Name:
Title:
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/8% Senior Notes due 2006, Series B, described in
the within-mentioned Indenture.
Dated: January 4, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
----------------------------------------
Authorized Signatory
57
(REVERSE OF SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2006, Series B
1. Interest.
HERMES EUROPE RAILTEL B.V., a Netherlands limited company (the "Company"),
promises to pay interest on the principal amount of this Security at the
rate per annum shown above. Cash interest on the Securities will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from January 4, 1999. The Company will pay interest
semi-annually in arrears on each Interest Payment Date, commencing July 15,
1999. Interest will be computed on the basis of a 360-day year of twelve
30-day months.
The Company shall pay interest on overdue principal from time to time on
demand at the rate borne by the Securities and on overdue installments of
interest (without regard to any applicable grace periods) at the rate borne
by the Securities to the extent lawful.
2. Method of Payment.
The Company shall pay interest on the Securities (except defaulted
interest) to the persons who are the registered Holders at the close of
business on the Interest Record Date immediately preceding the Interest
Payment Date even if the Securities are cancelled on registration of
transfer or registration of exchange after such Interest Record Date.
Payments of principal, premium, if any, and interest will be made (in the
case of payments of principal, on presentation of such Securities if in
certificated form) by credit or transfer to a Euro account maintained by
the Holder in the place of payment specified by the Holder. Holders of
Securities who receive payment in any currency other than the Euro must
make arrangements at their own expense. The Company shall deliver any such
interest, principal or other payment to the Paying Agent no later than
12:00 noon London time on the Business Day prior to the date such payment
is due.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act through its London
branch as Paying Agent and as Registrar in London, and Banque
Internationale a Luxembourg S.A. will act as Paying Agent and Registrar in
Luxembourg. The Company may change any Paying Agent or Registrar without
notice to the Holders. The Company or any of its Subsidiaries may, subject
to certain exceptions, act as Registrar.
4. Indenture.
The Company issued the Securities under an Indenture, dated as of January
4, 1999 (the "Indenture"), among the Company and the Trustee. Capitalized
terms herein are used as defined in the Indenture unless otherwise defined
herein. The terms of the Securities include those stated in the Indenture
and those made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S.C. Section Section 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which
the Indenture is qualified under the TIA. Notwithstanding anything to the
contrary herein, the Securities are subject to all such terms, and holders
of Securities are referred to the Indenture and the TIA for a statement of
them. This is one of the Series A Securities referred to in the Indenture.
The Series A Securities and the Series B Securities referred to in the
Indenture are general obligations of the Company limited in aggregate
principal amount to Euro 85,000,000.
5. Optional Redemption.
(a) The Securities will be redeemable at the option of the Company, in
whole or in part, at any time or from time to time, on or after January 15,
2003 at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest thereon, if any,
to the redemption date if redeemed during the twelve-month period
commencing on January 15 of the years set forth below:
Year Redemption Price
----- --------
2003 105.188%
2004 102.594%
2005 and thereafter 100.000%
(b) Redemption Upon Public Equity Offering or Strategic Equity Investment.
At any time, or from time to time, prior to January 15, 2002, the
Company may redeem Securities at a redemption price equal to 110.375%
of the principal amount of the Securities so redeemed, plus accrued
and unpaid interest thereon, if any, to the redemption date, with the
net cash proceeds of one or more Public Equity Offerings or Strategic
Equity Investments resulting in aggregate gross cash proceeds to the
Company
58
of at least $75.0 million; provided, however, that at least two-thirds
of the principal amount of Securities originally issued would remain
outstanding immediately after giving effect to any such redemption
(excluding any Securities owned by the Company or any of its
Affiliates). Notice of any such redemption must be given within 60
days after the date of the last Public Equity Offering or Strategic
Equity Investment resulting in gross cash proceeds to the Company,
when aggregated with all prior Public Equity Offerings and Strategic
Equity Investments, of at least $75.0 million.
(c) Redemption for Changes in Withholding Taxes.
The Company may, at its option, redeem all (but not less than all) of
the Securities then outstanding at 100% of the principal amount
thereof, plus accrued and unpaid interest, if any, to the date of
redemption, if the Company has become or would become obligated to
pay, on the next date on which any amount would be payable with
respect to the Securities, any Additional Amounts as a result of
change in law (including any regulations promulgated thereunder) or in
the interpretation or administration thereof, if such change is
announced and becomes effective on or after the Issue Date. Notice of
any such redemption must be given within 60 days of the earlier of the
announcement and the effectiveness of any such change.
6. Notice of Redemption.
Notice of redemption will be mailed by first-class mail at least 30
days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at its registered address;
provided, however, that notice of redemption pursuant to paragraph
5(b) of this Security will be mailed to each Holder of Securities to
be redeemed no later than 60 days following the consummation of the
last Public Equity Offering resulting in gross cash proceeds to the
Company, when aggregated with all prior Public Equity Offerings, of at
least $75.0 million. The Company will cause a copy of such notice to
be published in a daily newspaper with general circulation in
Luxembourg (which is expected to the Luxemburger Wort). The Trustee
may select for redemption portions of the principal amount of
Securities that have denominations equal to or larger than Euro 1,000
principal amount. Securities and portions of them the Trustee so
selects shall be in amounts of Euro 1,000 principal amount or integral
multiples thereof.
If any Security is to be redeemed in part only, the notice of
redemption that relates to such Security shall state the portion of
the principal amount thereof to be redeemed. A new Security in a
principal amount equal to the unredeemed portion thereof will be
issued in the name of the Holder thereof upon cancellation of the
original Security. On and after the Redemption Date, interest will
cease to accrue on Securities or portions thereof called for
redemption so long as the Company has deposited with the Paying Agent
for the Securities funds in satisfaction of the redemption price
pursuant to the Indenture.
7. Change of Control Offer.
Upon the occurrence of a Change of Control, the Company will be
required to offer to purchase all outstanding Securities at a purchase
price in cash equal to 101% of the aggregate principal amount thereof,
plus accrued and unpaid interest thereon, if any, to the Purchase
Date. The Company will cause a copy of such notice to be published in
a daily newspaper with general circulation in Luxembourg (which is
expected to the Luxemburger Wort).
8. Limitation on Disposition of Assets.
Upon the occurrence of certain Asset Sales, the Company is, subject to
certain conditions, obligated to make an offer to purchase Securities
at a purchase price in cash equal to 100% of the aggregate principal
amount thereof, plus accrued and unpaid interest thereon, if any, to
the Purchase Date.
9. Denominations; Transfer; Exchange.
The Securities are in registered form, without coupons, in
denominations of Euro 1,000 and integral multiples of Euro 1,000. A
Holder shall register the transfer of or exchange Securities in
accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer
documents and to pay certain transfer taxes or similar governmental
charges payable in connection therewith as permitted by the Indenture.
The Registrar need not register the transfer of or exchange any
Securities or portions thereof selected for redemption, except the
unredeemed portion of any security being redeemed in part.
10. Persons Deemed Owners.
The registered Holder of a Security shall be treated as the owner of
it for all purposes.
11. Unclaimed Funds.
If funds for the payment of principal or interest remain unclaimed for
two years, the Trustee and the Paying Agent will repay the funds to
the Company at its written request. After that, all liability of the
Trustee and such Paying Agent with respect to such funds shall cease.
59
12. Legal Defeasance and Covenant Defeasance.
The Company may be discharged from its obligations under the Indenture
and the Securities except for certain provisions thereof, and may be
discharged from obligations to comply with certain covenants contained
in the Indenture and the Securities, in each case upon satisfaction of
certain conditions specified in the Indenture.
13. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture and the Securities may be
amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Securities then
outstanding, and any existing Default or compliance with any provision
may be waived with the consent of the Holders of a majority in
aggregate principal amount of the Securities then outstanding. Without
notice to or consent of any Holder, the parties thereto may amend or
supplement the Indenture and the Securities to, among other things,
cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated
Securities, effect the assumption by a successor person of all
obligations of the Company under the Securities, the Indenture and the
Registration Rights Agreement in connection with any transaction
complying with Article Five of the Indenture or comply with any
requirements of the SEC in connection with the qualification of the
Indenture under the TIA, or make any other change that does not
materially adversely affect the rights of any Holder of a Security.
14. Restrictive Covenants.
The Indenture contains certain covenants that, among other things,
limit the ability of the Company and the Restricted Subsidiaries to
make restricted payments, to incur indebtedness, to create liens, to
sell assets, to permit restrictions on dividends and other payments to
become applicable to Restricted Subsidiaries, to consolidate, merge or
sell all or substantially all of its assets, to engage in transactions
with affiliates or certain other related persons. The limitations are
subject to a number of important qualifications and exceptions. The
Company must annually report to the Trustee on compliance with such
limitations.
15. Defaults and Remedies.
If an Event of Default (other than certain events of bankruptcy,
insolvency or reorganization affecting the Company) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate
principal amount of Securities then outstanding by notice in writing
to the Company may declare all the Securities to be due and payable
immediately in the manner and with the effect provided in the
Indenture. If certain events of bankruptcy, insolvency or
reorganization affecting the Company occur under the Indenture, the
Securities will ipso facto become immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder
of Securities. Holders of Securities may not enforce the Indenture or
the Securities except as provided in the Indenture. The Trustee is not
obligated to enforce the Indenture or the Securities unless it has
received indemnity reasonably satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a
majority in aggregate principal amount of the Securities then
outstanding to direct the Trustee in its exercise of any trust or
power. The Trustee may withhold from Holders of Securities notice of
certain continuing Defaults if it determines that withholding notice
is in their interest.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may
otherwise deal with the Company, its Subsidiaries or their respective
Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No stockholder, director, officer, employee or incorporator, as such,
of the Company or any of its Affiliates shall have any liability for
any obligation of the Company or any of its Affiliates under the
Securities or the Indenture or for any claim based on, in respect of
or by reason of, such obligations or their creation. Each Holder of a
Security by accepting a Security waives and releases all such
liability. The waiver and release are part of the consideration for
the issuance of the Securities.
18. Authentication.
This Security shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on this Security.
19. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a
Security or an assignee, such as: TEN COM (= tenants in common), TEN
ENT (= tenants by the entireties), JT TEN (= joint tenants with right
of survivorship and not as tenants in common), CUST (= Custodian), and
U/G/M/A (= Uniform Gifts to Minors Act).
60
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP
numbers to be printed on the Securities as a convenience to the
Holders of the Securities. No representation is made as to the
accuracy of such numbers as printed on the Securities and reliance may
be placed only on the other identification numbers printed hereon.
21. Governing Law.
The laws of the State of New York shall govern the Indenture and this
Security without regard to principles of conflicts of laws.
61
ASSIGNMENT FORM
I or we assign and transfer this Security to
(Print or type name, address and zip code of assignee or transferee)
(Insert Social Security or other identifying number of assignee or transferee)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Dated: Signed:
--------------------------- ---------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
Participant in a recognized Signature Guarantee
Medallion Program (or other signature guarantor program
reasonably acceptable to the Trustee)
62
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company
pursuant to Section 4.10 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.10 [ ]
Section 4.16 [ ]
If you want to elect to have only part of this Security purchased by
the Company pursuant to Section 4.10 or Section 4.16 of the Indenture,
state the amount: Euro _____________
Dated: Your Signature:
------------------- -----------------------------------
(Signed exactly as name appears
on the other side of this Security)
Signature Guarantee:
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program reasonably
acceptable to the Trustee)
63
EXHIBIT C
FORM OF LEGEND FOR GLOBAL SECURITIES
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS SECURITY IS HELD BY THE DEPOSITORY (AS DEFINED IN THE INDENTURE
GOVERNING THIS SECURITY) IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL OWNERS
HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT
THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED PURSUANT
TO SECTION 2.06 OF THE INDENTURE, (II) THIS GLOBAL SECURITY MAY BE EXCHANGED IN
WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06 OF THE INDENTURE, (III) THIS
GLOBAL SECURITY MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL SECURITY MAY BE TRANSFERRED
TO A SUCCESSOR DEPOSITORY WITH THE PRIOR WRITTEN CONSENT OF THE ISSUER.
64
EXHIBIT D
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Re: 10 3/8% Senior Notes due 2006
(the "Securities"), of Hermes Europe Railtel B.V.
This Certificate relates to Euro _______ principal amount of
Securities held in the form of* ___ a beneficial interest in a
Global Security or* _______ Physical Securities by (the
"Transferor").
The Transferor:*
[ ] has requested by written order that the Registrar deliver in
exchange for its beneficial interest in the Global Security held
by the Depositary a Physical Security or Physical Securities in
definitive, registered form of authorized denominations and an
aggregate number equal to its beneficial interest in such Global
Security (or the portion thereof indicated above); or
[ ] has requested that the Registrar by written order to exchange
or register the transfer of a Physical Security or Physical
Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor
is familiar with the Indenture relating to the above captioned
Securities and the restrictions on transfers thereof as provided
in Section 2.06 of such Indenture, and that the transfer of the
Securities does not require registration under the Securities Act
of 1933, as amended (the "Act"), because*:
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 2.06 of the
Indenture).
[ ] Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on
Rule 144A.
[ ] Such Security is being transferred to an institutional
"accredited investor" (within the meaning of subparagraph (a)(1),
(2), (3) or (7) of Rule 501 under the Act) which delivers a
certificate to the Trustee in the form of Exhibit E to the
Indenture. An opinion of counsel to the effect that such transfer
does not require registration under the Securities Act
accompanies this certification.
[ ] Such Security is being transferred in reliance on Regulation S
under the Act. An opinion of counsel to the effect that such
transfer does not require registration under the Securities Act
accompanies this certification.
[ ] Such Security is being transferred in reliance on Rule 144 under
the Act. An opinion of counsel to the effect that such transfer
does not require registration under the Securities Act
accompanies this certification.
[ ] Such Security is being transferred in reliance on and in
compliance with an exemption from the registration requirements
of the Act other than Rule 144A or Rule 144 or Regulation S under
the Act to a person other than an institutional "accredited
investor." An opinion of counsel to the effect that such transfer
does not require registration under the Securities Act
accompanies this certification.
------------------------------
[INSERT NAME OF TRANSFEROR]
By:
---------------------------
[Authorized Signatory]
Date:
---------------
*Check applicable box.
65
EXHIBIT E
Form of Certificate To Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
-------------------
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Hermes Europe Railtel B.V. (the "Company")
Indenture (the "Indenture") relating to 10 3/8%
Senior Notes due 2006
Ladies and Gentlemen:
In connection with our proposed purchase of Euro aggregate
principal amount of 10 3/8% Senior Notes due 2006 (the
"Notes") of Hermes Europe Railtel B.V., a Netherlands
limited company (the "Company"), we confirm that:
1. We understand that the Notes have not been registered
under the Securities Act of 1933, as amended (the
"Securities Act"), and may not be sold except as permitted
in the following sentence. We understand and agree, on our
own behalf and on behalf of any accounts for which we are
acting as hereinafter stated, (x) that such Notes are being
offered only in a transaction not involving any public
offering within the meaning of the Securities Act and (y)
that if we decide to resell, pledge or otherwise transfer
such Notes within two years after the date of the original
issuance of the Notes or if within three months after we
cease to be an affiliate (within the meaning of Rule 144
under the Securities Act) of the Company, such Notes may be
resold, pledged or transferred only (i) to the Company, (ii)
so long as the Notes are eligible for resale pursuant to
Rule 144A under the Securities Act ("Rule 144A"), to a
person whom we reasonably believe is a "qualified
institution buyer" (as defined in Rule 144A) ("QIB") that
purchases for its own account or for the account of a QIB to
whom notice is given that the resale, pledge or transfer is
being made in reliance on Rule 144A (as indicated by the box
checked by the transferor on the Certificate of Transfer on
the reverse of the certificate for the Notes), (iii) in an
offshore transaction in accordance with Regulation S under
the Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of
the Note if the Note is not in book-entry form), and, if
such transfer is being effected by certain transferors prior
to the expiration of the "40-day distribution compliance
period" (within the meaning of Rule 903(b)(2) of Regulation
S under the Securities Act), a certificate that may be
obtained from the Trustee is delivered by the transferee,
(iv) to an institution that is an "accredited investor" as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (as indicated by the box checked by the
transferor on the Certificate of Transfer on the reverse of
the certificate for the Notes) which has certified to the
Company and the Trustee for the Notes that it is such an
accredited investor and is acquiring the Notes for
investment purposes and not for distribution (provided that
no Notes purchased from a foreign purchaser or from any
person other than a QIB or an institutional accredited
investor pursuant to this clause (iii) shall be permitted to
transfer any Notes so purchased to an institutional
accredited investor pursuant to this clause (iv) prior to
the expiration of the "applicable restricted period" (within
the meaning of Regulation S under the Securities Act)), (v)
pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under
the Securities Act, or (vi) pursuant to an effective
registration statement under the Securities Act, in each
case in accordance with any applicable securities laws of
any state of the United States, and we will notify any
purchaser of the Notes from us of the above resale
restriction, if then applicable. We further understand that
in connection with any transfer of the Notes by us that the
Company and the Trustee for the Notes may request, and if so
requested we will furnish, such certificates, legal opinions
and other information as they may reasonably require to
confirm that any such transfer complies with the foregoing
restrictions.
2. We are able to fend for ourselves in the transactions
contemplated by this Offering Memorandum, we have such
knowledge and experience in financial and business matters
as to be capable of evaluating the merits and risks of our
investment in the Notes, and we and any accounts for which
we are acting are each able to bear the economic risk of our
or its investment and can afford the complete loss of such
investment.
3. We understand that the minimum principal amount of Notes
that may be purchased by an investor is Euro 250,000.
66
4. We understand that the Company, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx International, Xxxxxxx Xxxxx International, Bear,
Xxxxxxx International Limited, BT Alex. Xxxxx International,
a division of Bankers Trust International, PLC, and Xxxxxx
Brothers International (Europe), as the initial purchasers
of the Securities ("Initial Purchasers"), and others will
rely upon the truth and accuracy of the foregoing
acknowledgments, representations and agreements and we agree
that if any of the acknowledgments, representations and
warranties deemed to have been made by us by our purchase of
Notes, for our own account or of one or more accounts as to
each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company and
the Initial Purchasers.
5. We are acquiring the Notes purchased by us for investment
purposes and not for distribution of our own account or for
one or more accounts as to each of which we exercise sole
investment discretion and we are or such account is an
institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the
Securities Act).
6. You are entitled to rely upon this letter and you are
irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or
legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
---------------------------------------
(Name of Purchaser)
By:
---------------------------------------
Date:
---------------------------------------
67
EXHIBIT F
Form of Certificate To Be
Delivered in Connection
with Regulation S Transfers
------------------
The Bank of New York
000 Xxxxxxx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Re: Hermes Europe Railtel B.V. (the "Company") 10 3/8%
Senior Notes due 2006 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of Euro ____________
aggregate principal amount of the Securities, we confirm that
such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the
"Securities Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the
United States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person
acting on our behalf reasonably believed that the transferee was
outside the United States, or (b) the transaction was executed
in, on or through the facilities of a designated off-shore
securities market and neither we nor any person acting on our
behalf knows that the transaction has been prearranged with a
buyer in the United States;
(3) no directed selling efforts have been made in the United
States in contravention of the requirements of Rule 903(a) or
Rule 904(a) of Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions
applicable to the Securities.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to
any interested party in any administrative or legal proceedings
or official inquiry with respect to the matters covered hereby.
Defined terms used herein without definition have the respective
meanings provided in Regulation S.
Very truly yours,
[Name of Transferor]
By:
--------------------------------
