Exhibit 4.4
{FACE OF NOTE}
COMPLETEL EUROPE N.V.
14% Series B Senior Note Due 2010
(Euro)
ISIN No.
No.
COMPLETEL EUROPE N.V., a Netherlands public company with limited
liability (incorporated with limited liability in The Netherlands and having its
statutory seat in Amsterdam), (the "Company," which term includes any successor
under the Indenture hereinafter referred to), for value received, promises to
pay to _______________, or its registered assigns, the principal sum of
Euro ((Euro) ) on April 15, 2010.
Interest Payment Dates: April 15 and October 15, commencing October
15, 2000.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually by its duly authorized signatories.
COMPLETEL EUROPE N.V.
By: ______________________________
Name:
Title:
By: ______________________________
Name:
Title:
(Trustee's Certificate of Authentication)
This is one of the 14% Series B Senior Notes due 2010 described in the
within-mentioned Indenture.
Date:
THE CHASE MANHATTAN BANK,
as Trustee
By: ______________________________
Authorized Signatory
REVERSE SIDE OF NOTE
COMPLETEL EUROPE N.V.
14% Series B Senior Note due 2010
1. Principal and Interest.
----------------------
The Company will pay the principal of this Note on April 15, 2010.
The Company promises to pay interest on the principal amount of this
Note on each Interest Payment Date, as set forth below, at the rate per annum
shown above.
Interest will be payable semiannually (to the holders of record of the
Notes) at the close of business on April 1 or October 1 immediately preceding
the Interest Payment Date (the "Regular Record Date"), on each Interest Payment
Date, commencing October 15, 2000; provided that no interest shall accrue on the
principal amount of this Note prior to April 13, 2000.
Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from April 13, 2000.
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 and premium, if
any, and interest on overdue installments of interest, to the extent lawful, at
a rate per annum that is the then applicable interest rate borne by the Notes.
2. Method of Payment.
-----------------
The Company will pay interest (except defaulted interest) on the
principal amount of the Notes as provided above on each April 15 and October 15
to the persons who are Holders (as reflected in the Security Register at the
close of business on the Regular Record Date), in each case, even if the Note is
canceled on registration of transfer or registration of exchange after such
record date; provided that, with respect to the payment of principal, the
Company will make payment to the Holder that surrenders this Note to a Principal
Paying Agent on or after April 15, 2010.
The Company will pay principal, premium, Additional Amounts if any,
and as provided above, interest in euro, in same day funds, that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may
pay principal, premium, if any, and interest by its check payable in such money.
It may mail an interest check to a Holder's registered address (as reflected in
the Security Register). If a payment date is a date other than a Business Day at
a place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Principal Paying Agent and Registrar.
------------------------------------
Initially, the Trustee will act as authenticating agent, Principal
Paying Agent and Registrar in the Borough of Manhattan, The City of New York and
London, England and Banque Internationale a Luxembourg S.A. will act as
Principal Paying Agent and Registrar in Luxembourg. The Company may change any
authenticating agent, Principal Paying Agent or Registrar without notice. The
Company, any Subsidiary or any Affiliate of any of them may act as Principal
Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
----------------------
The Company issued the Notes under an Indenture dated as of April 13,
2000 (the "Indenture"), between the Company and The Chase Manhattan Bank (the
"Trustee"). Capitalized terms herein are used as defined in the Indenture
unless otherwise indicated. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act. The Notes are subject to all such terms, and Holders are
referred to the Indenture and the Trust Indenture Act for a statement of all
such terms. To the extent permitted by applicable law, in the event of any
inconsistency between the terms of this Note and the terms of the Indenture, the
terms of the Indenture shall control. This is one of the Notes referred to in
the Indenture. The Initial Notes and the Exchange Notes are unsecured (except
to the limited extent provided in the Indenture and the Pledge Agreement) and
unsubordinated obligations of the Company limited in aggregate principal amount
not to exceed (Euro)300,000,000, as provided in the Indenture.
5. Additional Amounts.
------------------
The Company will pay to the Holders of Notes such Additional Amounts
as may become payable under Section 4.20 of the Indenture.
6. Redemption.
----------
(a) The Notes will be redeemable, at the Company's option, in whole
or in part, at any time or from time to time, on or after April 15, 2005 and
prior to maturity, at the
Redemption Prices (expressed in percentages of principal amount) set forth
below, plus accrued and unpaid interest, if any, to the Redemption Date (subject
to the right of Holders of record on the relevant Regular Record Date that is on
or prior to the Redemption Date to receive interest due on an Interest Payment
Date), if redeemed during the 12-month period commencing on April 15 of the
years set forth below:
Redemption
Year Price
---- ----------
2005 107.000%
2006 104.667%
2007 102.333%
2008 and thereafter 100.000%
(b) In addition, at any time on or prior to April 15, 2003 the
Company may redeem up to 35% of the principal amount of the Notes originally
issued with the proceeds of one or more Public Equity Offerings following which
there is a Public Market, at the Company's option, at any time or from time to
time in part, at a Redemption Price (expressed as a percentage of principal
amount on the Redemption Date) of 114.00% plus accrued and unpaid interest, if
any, to the Redemption Date; provided that (i) at least 65% of the aggregate
principal amount of Notes remains outstanding after each such redemption and
(ii) the Company mails a notice of such redemption within 60 days of receipt of
the Public Equity Offering proceeds to be so applied.
Notice of any optional redemption will be mailed at least 30 days but
not more than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at his last address as it appears in the Security Register. So long as
the Notes are listed on the Luxembourg Stock Exchange and the rules of such
exchange so require, notice of redemption shall be published in a daily
newspaper of general circulation in Luxembourg (which is expect to be the
Luxemberger Wort). On and after the Redemption Date, interest ceases to accrue
on Notes or portions of Notes called for redemption, unless the Company defaults
in the payment of the Redemption Price. The Trustee may select for redemption
portions of the principal amount of the Notes that have denominations equal to
(Euro)1,000 integral multiples thereof, so long as no Holder holds Notes with
less than (Euro)50,000 principal amount after such redemption.
7. Redemption for Changes in Withholding Taxes.
-------------------------------------------
The Company may also have the option to redeem the Notes, in whole,
but not in part, in the event of certain changes in the tax laws such that the
Company would be required to pay Additional Amounts, subject to Section 3.01(c)
of the Indenture.
8. Repurchase upon Change in Control.
---------------------------------
Upon the occurrence of an Change of Control, each Holder shall have
the right to require the repurchase of its Notes by the Company in cash pursuant
to the offer described in the Indenture at a purchase price equal to 101% of the
principal amount thereof plus accrued interest, if any, to the date of purchase
(the "Change of Control Payment").
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at his last address as it appears in
the Security Register. On and after the Change of Control Payment Date,
interest ceases to accrue and the original issue discount ceases to accrete on
Notes or portions of Notes surrendered for purchase by the Company, unless the
Company defaults in the payment of the Change of Control Payment.
9. Denominations; Transfer; Exchange.
---------------------------------
The Notes are in registered form without coupons in denominations of
(Euro)50,000 of principal amount and multiples of (Euro)1,000 in excess thereof.
A Holder may register the transfer or exchange of Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not register
the transfer or exchange of any Notes selected for redemption. Also, it need not
register the transfer or exchange of any Notes for a period of 15 days before a
selection of Notes to be redeemed is made.
10. Persons Deemed Owners.
---------------------
A Holder shall be treated as the owner of a Note for all purposes.
11. Unclaimed Money.
---------------
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Principal Paying Agent will
pay the money back to the Company at its request. After that, Holders entitled
to the money must look to the Company for payment, unless an abandoned property
law designates another Person, and all liability of the Trustee and such
Principal Paying Agent with respect to such money shall cease.
12. Discharge Prior to Redemption or Maturity.
-----------------------------------------
If the Company deposits with the Trustee money or Government
Securities sufficient to pay the then outstanding
principal of, premium, if any, and accrued interest on the Notes (a) to
redemption or maturity, the Company will be discharged from this Indenture and
the Notes, except in certain circumstances for certain sections thereof, and (b)
to the Stated Maturity, the Company will be discharged from certain covenants
set forth in the Indenture.
13. Legal Defeasance and Covenant Defeasance.
----------------------------------------
The Company may be discharged from its obligations under the Indenture
and the Notes except for certain provisions thereof, and may be discharged from
obligations to comply with certain covenants contained in the Indenture and the
Notes, in each case upon satisfaction of certain conditions specified in the
Indenture.
14. Amendment; Supplement; Waiver.
-----------------------------
Subject to certain exceptions, the Indenture or the Notes may be
amended or supplemented with the consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing default or
compliance with any provision may be waived with the consent of the Holders of
at least a majority in principal amount of the Notes then outstanding. Without
notice to or the consent of any Holder, the parties thereto may amend or
supplement the Indenture or the Notes to, among other things, cure any
ambiguity, defect or inconsistency and make any change that does not adversely
affect the rights of any Holder in any material respect. Certain modifications
will require the consent of each Holder affected thereby.
15. Restrictive Covenants.
---------------------
The Indenture imposes certain limitations on the ability of the
Company and its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates or merge, consolidate or transfer
substantially all of its assets. Within 90 days after the end of each fiscal
quarter, the Company must report to the Trustee on compliance with such
limitations.
16. Successor Persons.
-----------------
When a successor person or other entity assumes all the obligations of
its predecessor under the Notes and the Indenture, the predecessor person will
be released from those obligations.
17. Defaults and Remedies.
---------------------
If an Event of Default (other than an Event of Default specified in
clause (g) or (h) of Section 6.01 of the Indenture that occur with respect to
the Company) occurs and is continuing, the Trustee or the Holders of at least
25% in principal amount of the Notes may declare all the Notes to be due and
payable. If a bankruptcy or insolvency default with respect to the Company
occurs and is continuing, the Notes automatically become due and payable.
Holders may not enforce this Indenture or the Notes except as provided in the
Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Notes. Subject to certain limitations, Holders of
at least a majority in principal amount of the Notes then outstanding may direct
the Trustee in its exercise of any trust or power.
18. Trustee Dealings with Company.
-----------------------------
Subject to the Trust Indenture Act, the Trustee under the Indenture,
in its individual or any other capacity, may make loans to, accept deposits from
and perform services for the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates as if it were not the Trustee.
19. No Recourse Against Others.
--------------------------
No incorporator or any past, present or future partner, shareholder,
other equity holder, officer, director, manager, employee, board member or
controlling person as such, of the Company or of any successor Person shall have
any liability for any obligations of the Company under the Notes 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 Note waives and
releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
20. Authentication.
--------------
This Note shall not be valid until the Trustee or authenticating agent
signs the certificate of authentication on the other side of this Note.
21. Abbreviations.
-------------
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), 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).
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to CompleTel
Europe N.V., Xxxxxxxx 000, 0000 XX Xxxxxxxxx, Xxx Xxxxxxxxxxx, Attention: Chief
Financial Officer.
22. Choice of Law.
-------------
The laws of the State of New York shall govern the Indenture and this
Note without giving effect to applicable principles of conflicts of laws to the
extent that the application of the law of another jurisdiction would be required
thereby.
ASSIGNMENT FORM
I or we assign and transfer this Note 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 Note)
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 wish to have this Note purchased by the Company pursuant to
Section 4.10 or Section 4.12 of this Indenture, check the Box: [_]
If you wish to have a portion of this Note purchased by the Company
pursuant to Section 4.10 or Section 4.12 of the Indenture, state the amount (in
principal amount): (Euro)_________.
Date: _________________
Your Signature:
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Note)
