1
EXHIBIT 4.5
INDENTURE
DATED AS OF JANUARY 4, 1999
BETWEEN
HERMES EUROPE RAILTEL B.V., AS ISSUER
AND
THE BANK OF NEW YORK, AS TRUSTEE
--------------------
$200,000,000
10 3/8% SENIOR NOTES DUE 2009
10 3/8% SENIOR NOTES DUE 2009, SERIES B
CROSS-REFERENCE TABLE
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
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Sections 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.
Sections 311(a) 7.11
(b) 7.11
(c) N.A.
Sections 312(a) 2.05
(b) 10.03
(c) 10.03
Sections 313(a) 7.06
(b)(1) 7.06
(b)(2) 7.06
(c) 7.06; 10.02
(d) 7.06
Sections 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.
Sections 315(a) 7.01(b)
(b) 7.05; 10.02
(c) 7.01(a)
(d) 7.01(c)
(e) 6.11
Sections 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
Sections 317(a)(1) 6.08
(a)(2) 6.09
(b) 2.04
Sections 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
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
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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
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:
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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 business.
"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.
"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 the place of payment are open for business.
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"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.
"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 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
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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 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
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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, The Depository Trust Company or another
Person designated as Depository by the Company, which must be a clearing
agency registered under the Exchange Act.
"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
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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.
"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.
"Euro Notes" means (1) Euro 85,000,000 aggregate principal amount of 10
3/8% Senior Notes due 2006 of the Company and (2) the 10 3/8% Senior Notes
due 2006, Series B, of the Company issued in exchange for the securities
referred to in clause (1).
"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 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,
9
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, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Bear,
Xxxxxxx & Co. Inc., BT Alex. Xxxxx Incorporated and Xxxxxx Brothers Inc.
"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.
10
"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.
"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
11
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 $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 $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 $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.
"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'
12
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 any property or assets
of the Company or any Restricted Subsidiary securing on a pari passu basis
all of the Securities and the Euro 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,
13
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 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
14
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.
"Series A Securities" means the 10 3/8% Senior Notes due 2009 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 2009, 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
15
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, 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.
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"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. 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
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"Regulation S Global Security"). The Company shall cause the QIB Global
Securities and Regulation S Global Securities to have separate CUSIP
numbers.
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 nevertheless.
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 $200,000,000 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
$200,000,000, 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 $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 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 Registrar and Paying Agent
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
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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 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
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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.
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 10:00 a.m. New York City time on 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
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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:
(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
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(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 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.
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(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 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.
(f) 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
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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 $1,000 principal
amount. Securities and portions of them the Trustee so selects shall
be in amounts of $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 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
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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 10:00 a.m. New York City time on 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 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 Luxembourg
Stock Exchange and the rules of such stock exchange require, in
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 and (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.
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
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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 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.
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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).
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 $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
27
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 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
28
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.
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 Euro 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
29
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.
(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
30
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:
(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
31
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 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
32
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 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.
33
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 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
34
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 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,
35
(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.
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
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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.
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
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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 7.01. 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 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.
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(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.
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
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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 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.
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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.
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
41
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 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
42
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 9.02. 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:
(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
43
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 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,
44
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 Sections 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
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
45
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.
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
46
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 business. 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.
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]
47
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
48
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.
49
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2009
CUSIP No.:
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 Dollars, on January 15, 2009.
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:
50
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/8% Senior Notes due 2009, described in the
within-mentioned Indenture.
Dated: January 4, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
------------------------------------
Authorized Signatory
(REVERSE OF SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2009
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 and premium, if any, will be made (on
presentation of such Securities if in certificated form) at
the corporate trust office of the Paying Agent in New York
City or, subject to any applicable laws and regulations, at
the office of the Paying Agent in Luxembourg by United States
dollar check drawn on, or wire transfer to a United States
dollar account maintained by the Holder with, a bank located
in New York City. Payments of any installment of interest on
Securities will be made by a United States dollar check drawn
on a bank in New York City mailed to the Holder at such
Holder's registered address or (if arrangements satisfactory
to the Company and the Paying Agents are made) by wire
transfer to a dollar account maintained by the holder with a
bank in New York City.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent and Registrar in the Borough of Manhattan, The
City of New York, 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
51
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. Sections
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 $200,000,000.
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, 2004 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:
Redemption
Year Price
---- -------
2004 105.188%
2005 103.459%
2006 101.729%
2007 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, 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 $1,000 principal amount.
Securities and portions of them the Trustee so selects shall
be in amounts of $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
52
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 $1,000 and integral multiples of $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
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
53
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).
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.
54
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)
55
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: $_____________
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)
56
EXHIBIT B
(FORM OF SERIES B SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2009, Series B
CUSIP No.:
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 Dollars, on January 15, 2009.
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:
57
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the 10 3/8% Senior Notes due 2009, Series B, described
in the within-mentioned Indenture.
Dated: January 4, 0000
XXX XXXX XX XXX XXXX,
as Trustee
By:
-----------------------------------
Authorized Signatory
58
(REVERSE OF SECURITY)
HERMES EUROPE RAILTEL B.V.
10 3/8% Senior Note due 2009, 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 and premium, if any, will be made (on
presentation of such Securities if in certificated form) at
the corporate trust office of the Paying Agent in New York
City or, subject to any applicable laws and regulations, at
the office of the Paying Agent in Luxembourg by United States
dollar check drawn on, or wire transfer to a United States
dollar account maintained by the Holder with, a bank located
in New York City. Payments of any installment of interest on
Securities will be made by a United States dollar check drawn
on a bank in New York City mailed to the
59
Holder at such Holder's registered address or (if arrangements
satisfactory to the Company and the Paying Agents are made) by
wire transfer to a dollar account maintained by the holder
with a bank in New York City.
3. Paying Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as
Paying Agent and Registrar in the Borough of Manhattan, The
City of New York, 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. Sections 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 $200,000,000.
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, 2004 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:
Redemption
Year Price
---- -------
2004 105.188%
2005 103.459%
2006 101.729%
2007 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, 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
60
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 $1,000 principal amount. Securities and portions
of them the Trustee so selects shall be in amounts of $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 $1,000 and integral multiples of $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
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
61
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).
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.
62
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)
63
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: $_____________
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)
64
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 A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. THIS
SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE
DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY
BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE
INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION
("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
65
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 2009
(the "Securities"), of Hermes Europe Railtel B.V.
This Certificate relates to $_______ principal amount of
Securities held in the form of* ___ a beneficial interest in a Global Security
or* _______ Physical Securities by (the "Transferor").
The Transferor:*
66
[ ] 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.
67
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 2009
Ladies and Gentlemen:
In connection with our proposed purchase of $ aggregate
principal amount of 10 3/8% Senior Notes due 2009 (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
68
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 $250,000.
4. We understand that the Company, Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation, Xxxxxxx Lynch, Pierce, Xxxxxx
& Xxxxx Incorporated, Bear, Xxxxxxx & Co. Inc., BT Alex. Xxxxx
Incorporated and Xxxxxx Brothers Inc., 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:
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69
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 2009 (the "Securities")
Ladies and Gentlemen:
In connection with our proposed sale of $____________
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:
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