EXHIBIT 4.3
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VERSATEL TELECOM INTERNATIONAL N.V.
as Issuer,
AND
UNITED STATES TRUST COMPANY OF NEW YORK
as Trustee, Registrar and
Paying Agent
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INDENTURE
Dated as of December 3, 1998
----------------------
$150,000,000 13 1/4% Senior Notes due 2008
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE................ 1
SECTION 1.1 Definitions................................................... 1
SECTION 1.2 Incorporation by Reference of TIA............................. 21
SECTION 1.3 Rules of Construction......................................... 22
ARTICLE II
THE NOTES................................ 22
SECTION 2.1 Form and Dating............................................... 22
SECTION 2.2 Execution and Authentication.................................. 24
SECTION 2.3 Registrar and Paying Agent.................................... 25
SECTION 2.4 Paying Agent To Hold Assets in Trust.......................... 26
SECTION 2.5 List of Holders............................................... 26
SECTION 2.6 Book-Entry Provisions for Global Notes........................ 26
SECTION 2.7 Registration of Transfer and Exchange......................... 27
SECTION 2.8 Replacement Notes............................................. 33
SECTION 2.9 Outstanding Notes............................................. 34
SECTION 2.10 Treasury Notes................................................ 34
SECTION 2.11 Temporary Notes............................................... 35
SECTION 2.12 Cancellation.................................................. 35
SECTION 2.13 Defaulted Interest............................................ 35
SECTION 2.14 CUSIP, ISIN and Common Code Numbers........................... 36
SECTION 2.15 Deposit of Moneys............................................. 36
SECTION 2.16 Certain Matters Relating to Global Notes...................... 36
SECTION 2.17 Separation of Warrants and Notes.............................. 36
ARTICLE III
REDEMPTION................................ 37
SECTION 3.1 Optional Redemption........................................... 37
SECTION 3.2 Notices to Trustee............................................ 37
SECTION 3.3 Selection of Notes To Be Redeemed............................. 37
SECTION 3.4 Notice of Redemption.......................................... 38
SECTION 3.5 Effect of Notice of Redemption................................ 39
SECTION 3.6 Deposit of Redemption Price................................... 39
SECTION 3.7 Notes Redeemed in Part........................................ 40
ARTICLE IV
COVENANTS................................ 40
SECTION 4.1 Payment of Notes.............................................. 40
SECTION 4.2 Maintenance of Office or Agency............................... 41
SECTION 4.3 Limitation on Restricted Payments............................. 41
SECTION 4.4 Limitation on Indebtedness.................................... 43
SECTION 4.5 Corporate Existence........................................... 47
SECTION 4.6 Payment of Taxes and Other Claims............................. 47
SECTION 4.7 Maintenance of Properties and Insurance....................... 48
SECTION 4.8 Compliance Certificate; Notice of Default..................... 48
SECTION 4.9 Compliance with Laws.......................................... 49
SECTION 4.10 Reports....................................................... 49
SECTION 4.11 Waiver of Stay, Extension or Usury Laws....................... 50
SECTION 4.12 Limitation on Transactions with Shareholders and Affiliates... 51
SECTION 4.13 Limitation on Dividend and Other Payment Restrictions
Affecting Restricted Subsidiaries............................. 51
SECTION 4.14 Limitation on Liens........................................... 53
SECTION 4.15 Change of Control............................................. 53
SECTION 4.16 Limitation on Asset Sales..................................... 55
SECTION 4.17 Limitation on Issuance of Guarantees of Indebtedness by
Restricted Subsidiaries....................................... 59
SECTION 4.18 Business of the Company; Restriction on Transfers of
Existing Business............................................. 59
SECTION 4.19 Limitation on the Issuance and Sale of Capital Stock of
Restricted Subsidiaries....................................... 60
SECTION 4.20 Additional Amounts............................................ 60
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges............... 61
ARTICLE V
SUCCESSOR CORPORATION.......................... 61
SECTION 5.1 Consolidation, Merger, and Sale of Assets..................... 61
SECTION 5.2 Successor Corporation Substituted............................. 62
ARTICLE VI
DEFAULT AND REMEDIES........................... 62
SECTION 6.1 Events of Default............................................. 62
SECTION 6.2 Acceleration.................................................. 64
SECTION 6.3 Other Remedies................................................ 64
SECTION 6.4 The Trustee May Enforce Claims Without Possession of
Securities.................................................... 64
SECTION 6.5 Rights and Remedies Cumulative................................ 65
SECTION 6.6 Delay or Omission Not Waiver.................................. 65
SECTION 6.7 Waiver of Past Defaults....................................... 65
SECTION 6.8 Control by Majority........................................... 66
SECTION 6.9 Limitation on Suits........................................... 66
SECTION 6.10 Rights of Holders To Receive Payment.......................... 66
SECTION 6.11 Collection Suit by Trustee.................................... 67
SECTION 6.12 Trustee May File Proofs of Claim.............................. 67
SECTION 6.13 Priorities.................................................... 67
SECTION 6.14 Restoration of Rights and Remedies............................ 68
SECTION 6.15 Undertaking for Costs......................................... 68
SECTION 6.16 Compliance Certificate; Notices of Default.................... 68
ARTICLE VII
TRUSTEE................................. 69
SECTION 7.1 Duties of Trustee............................................. 69
SECTION 7.2 Rights of Trustee............................................. 70
SECTION 7.3 Individual Rights of Trustee.................................. 71
SECTION 7.4 Trustee's Disclaimer.......................................... 72
SECTION 7.5 Notice of Default............................................. 72
SECTION 7.6 Report by Trustee to Holders.................................. 72
SECTION 7.7 Compensation and Indemnity.................................... 73
SECTION 7.8 Replacement of Trustee........................................ 74
SECTION 7.9 Successor Trustee by Merger, Etc.............................. 75
SECTION 7.10 Corporate Trustee Required; Eligibility....................... 75
SECTION 7.11 Disqualification; Conflicting Interests....................... 75
SECTION 7.12 Preferential Collection of Claims Against Company............. 75
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE................. 76
SECTION 8.1 Option To Effect Legal Defeasance or Covenant Defeasance...... 76
SECTION 8.2 Legal Defeasance and Discharge................................ 76
SECTION 8.3 Covenant Defeasance........................................... 76
SECTION 8.4 Conditions to Legal or Covenant Defeasance.................... 77
SECTION 8.5 Satisfaction and Discharge of Indenture....................... 79
SECTION 8.6 Survival of Certain Obligations............................... 79
SECTION 8.7 Acknowledgement of Discharge by Trustee....................... 80
SECTION 8.8 Application of Trust Moneys................................... 80
SECTION 8.9 Repayment to the Company; Unclaimed Money..................... 80
SECTION 8.10 Reinstatement................................................. 81
ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS................... 81
SECTION 9.1 Without Consent of Holders of Notes........................... 81
SECTION 9.2 With Consent of Holders of Notes.............................. 82
SECTION 9.3 Compliance with TIA........................................... 83
SECTION 9.4 Revocation and Effect of Consents............................. 83
SECTION 9.5 Notation on or Exchange of Notes.............................. 84
SECTION 9.6 Trustee To Sign Amendments, Etc............................... 84
ARTICLE X
COLLATERAL AND SECURITY......................... 84
SECTION 10.1 Escrow Agreement.............................................. 84
SECTION 10.2 Recording and Opinions........................................ 85
SECTION 10.3 Release of Collateral......................................... 86
SECTION 10.4. Certificates of the Company................................... 86
SECTION 10.5. Authorization of Actions to be Taken by the Trustee Under
the Escrow Agreement.......................................... 87
SECTION 10.6. Authorization of Receipt of Funds by the Trustee Under the
Escrow Agreement.............................................. 87
SECTION 10.7. Termination of Security Interest.............................. 87
ARTICLE XI
MISCELLANEOUS.............................. 88
SECTION 11.1 TIA Controls.................................................. 88
SECTION 11.2 Notices....................................................... 88
SECTION 11.3 Communications by Holders with Other Holders.................. 89
SECTION 11.4 Certificate and Opinion as to Conditions Precedent............ 89
SECTION 11.5 Statements Required in Certificate or Opinion................. 90
SECTION 11.6 Rules by Trustee, Paying Agent, Registrar..................... 90
SECTION 11.7 Legal Holidays................................................ 90
SECTION 11.8 Governing Law................................................. 90
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent for
Service; Waiver............................................... 90
SECTION 11.10 No Adverse Interpretation of Other Agreements................. 91
SECTION 11.11 No Personal Liability of Directors, Officers, Employees,
Stockholders or Incorporators................................. 91
SECTION 11.12 Currency Indemnity............................................ 92
SECTION 11.13 Successors.................................................... 92
SECTION 11.14 Counterpart Originals......................................... 92
SECTION 11.15 Severability.................................................. 92
SECTION 11.16 Table of Contents, Headings, etc.............................. 93
EXHIBITS
Exhibit A - Form of Initial Global Note
Exhibit B - Form of Initial Definitive Note
Exhibit C - Form of Exchange Global Note
Exhibit D - Form of Exchange Definitive Note
Exhibit E - Form of Transfer Certificate for Transfer from U.S. Global
Note to Regulation S Global Note
Exhibit F - Form of Transfer Certificate for Transfer from Regulation S
Global Note to U.S. Global Note
NOTE: This Table of Contents shall not, for any purpose, be deemed to
be part of this Indenture.
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)......................................................... 7.10
(a)(2)...................................................... 7.10
(a)(3)...................................................... NA
(a)(4)...................................................... NA
(a)(5)...................................................... 7.8; 7.11
(b)......................................................... 7.8; 7.11
(c)......................................................... NA
311(a)............................................................ 7.12
(b)......................................................... 7.12
(c)......................................................... NA
312(a)............................................................ 2.5
(b)......................................................... 11.3
(c)......................................................... 11.3
313(a)............................................................ 7.6
(b)(1)...................................................... 11.3
(b)(2)...................................................... 7.6
(c)......................................................... 7.6; 11.2
(d)......................................................... 7.6
314(a)............................................................ 4.8; 4.10;
11.2; 11.4
(b)......................................................... 11.2
(c)(1)...................................................... 7.2; 11.4
(c)(2)...................................................... 7.2; 11.4
(c)(3)...................................................... NA
(d)......................................................... 11.3;11.4;
11.5
(e)......................................................... 11.5
(f)......................................................... NA
315(a)............................................................ 7.1(c)
(b)......................................................... 7.5; 11.2
(c)......................................................... 7.1(a)
(d)......................................................... 6.8; 7.1(c)
(e)......................................................... 6.15
316(a)(last sentence)............................................. 2.9
(a)(1)(A)................................................... 6.8
(a)(1)(B)................................................... 6.7
(a)(2)...................................................... NA
(b)......................................................... 6.10
317(a)(1)......................................................... 6.11
(a)(2)...................................................... 6.12
(b)......................................................... 2.4
318(a)............................................................ 11.1
(c)......................................................... 11.1
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NA means Not Applicable.
NOTE: This Cross-Reference Table shall not, for any purpose,
be deemed to be a part of this Indenture.
1
INDENTURE, dated as of December 3, 1998,
between VERSATEL TELECOM INTERNATIONAL N.V., a
company organized under the laws of The Netherlands,
and having its corporate seat in Amsterdam, The
Netherlands (the "Company"), and United States Trust
Company of New York, a New York banking corporation,
as Trustee, Registrar and Paying Agent.
The Company has duly authorized the creation and issuance of
its 13 1/4% Senior Notes due 2008 (the "Initial Notes") and 13 1/4% Senior Notes
due 2008 to be issued in exchange for the Initial Notes pursuant to the
Registration Rights Agreement (the "Exchange Notes" and, together with the
Initial Notes, the "Notes"); and, to provide therefor, the Company has duly
authorized the execution and delivery of this Indenture.
The Company and the Trustee agree as follows for the benefit
of each other and for the equal and ratable benefit of the Holders of the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1 Definitions. For purposes of this Indenture,
unless otherwise specifically indicated herein, the term "consolidated" with
respect to any Person refers to such Person consolidated with its Restricted
Subsidiaries, and excludes from such consolidation any Unrestricted Subsidiary
as if such Unrestricted Subsidiary were not an Affiliate of such Person. In
addition, for purposes of the following definitions and this Indenture
generally, all calculations and determinations shall be made in accordance with
U.S. GAAP and shall be based upon the consolidated financial statements of the
Company and its subsidiaries prepared in accordance with U.S. GAAP. As used in
this Indenture, the following terms shall have the following meanings:
"Acquired Indebtedness" means, 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 or assumed in
connection with an Asset Acquisition by the Company or a Restricted Subsidiary
and not incurred in connection with, or in anticipation of, such Person becoming
a Restricted Subsidiary, such merger or consolidation or such Asset Acquisition;
provided that Indebtedness of such Person which is redeemed, defeased, retired
or otherwise repaid at the time of or immediately upon the consummation of the
transactions by which such Person becomes a Restricted Subsidiary or is merged
or consolidated with or into the Company or any Restricted Subsidiary or such
Asset Acquisition shall not be Indebtedness.
"Additional Amounts" shall have the meaning set forth in
Section 4.20.
2
"Affiliate" as applied to any Person means any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, such Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as applied to any Person, is defined to mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agent" means any Registrar, Paying Agent, Authenticating
Agent or co-Registrar.
"Agent Members" shall have the meaning set forth in Section
2.16.
"Asset 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) an acquisition by the Company or any of its
Restricted Subsidiaries of the property and assets of any Person (other than the
Company or any of its Restricted Subsidiaries) that constitute substantially all
of an operating unit or line of business of such Person or which is otherwise
outside the ordinary course of business.
"Asset Disposition" means the sale or other disposition by the
Company or any of its Restricted Subsidiaries (other than to the Company or
another Restricted Subsidiary of the Company) of (i) all or substantially all of
the Equity Interests in any Restricted Subsidiary of the Company or (ii) all or
substantially all of the assets that constitute an operating unit or line of
business of the Company or any of its Restricted Subsidiaries or which is
otherwise outside the ordinary course of business.
"Asset Sale" means any sale, transfer or other disposition
(including by way of merger, consolidation or sale-leaseback transactions) in
one transaction or a series of related transactions by the Company or any of its
Restricted Subsidiaries to any Person (other than the Company or any of its
Restricted Subsidiaries) of (i) all or any of the Equity Interests in any
Subsidiary, (ii) all or substantially all of the property and assets of an
operating unit or line of business of the Company or any of its Restricted
Subsidiaries or (iii) any other property and assets of the Company or any of its
Restricted Subsidiaries outside 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
3
consummated in compliance with Section 5.1 and the creation of any Lien not
prohibited by Section 4.14; provided, however, that any transaction consummated
in compliance with such Section 5.1, 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 4.3.
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."
"Asset Sale Offer" shall have the meaning set forth in Section
4.16.
"Authenticating Agent" shall have the meaning set forth in
Section 2.2.
"Bankruptcy Law" means (i) for purposes of the Company, the
Faillissementswet and any similar statute, regulation or provision of any other
jurisdiction in which the Company is organized or conducting business and (ii)
for purposes of the Trustee, Title 11, U.S. Code or any similar United States
Federal, state or foreign law for the relief of creditors.
"Board of Directors" means the Supervisory Board of the
Company.
"Board Resolution" means a duly authorized resolution of the
Board of Directors certified by an Officer and delivered to the Trustee.
"Business Day" means a day other than a Saturday, Sunday or
other day on which commercial banking institutions are authorized or required by
law to close in New York City or Amsterdam.
"Capital Stock" means with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) in equity of such Person, including, without
limitation, if such Person is a partnership, partnership interests (whether
general or limited) and any other interest or participation that confers on a
Person the right to receive a share of the profits and losses of, or
distributions of assets of, such partnership.
"Capitalized Lease" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) of which the discounted
present value of the
4
rental obligations of such Person as lessee, in conformity with U.S. GAAP, is
required to be capitalized and reflected as a liability on the balance sheet of
such Person; and "Capitalized Lease Obligation" is defined to mean, at the time
any determination thereof is to be made, the discounted present value of the
rental obligations under such lease.
"Cash Equivalents" means (a) 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 360 days from the
date of acquisition; (b) certificates of deposit and eurodollar time deposits
with maturities of 360 days or less from the date of acquisition, bankers'
acceptances with maturities not exceeding 360 days and overnight bank deposits,
in each case with any commercial bank having capital and surplus in excess of
$500 million; provided, however, that, with respect to both clause (a) and
clause (b) above, securities deposited in the Escrow Account may have a Stated
Maturity as late as May 15, 2001; (c) repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clauses
(a) and (b) entered into with any financial institution meeting the
qualifications specified in clause (b) above; (d) 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; (e) marketable direct obligations of the United
Kingdom, The Netherlands, Belgium, Germany or France or obligations fully and
unconditionally guaranteed by such sovereign nation (or any agency thereof), of
the type and maturity described in clauses (a) through (d) above of foreign
obligors, which have ratings described in such clauses or equivalent ratings
from comparable foreign rating agencies; and (f) investments in money market
funds which invest substantially all their assets in securities of the types
described in clauses (a) through (e) above.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means such time as (i) a "person" or
"group" (within the meaning of Sections 13(d) and 14(d)(2) of the Exchange Act)
(other than a Permitted Holder) becomes the ultimate "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act) of more than 50% of the total
voting power of the then outstanding Voting Stock of the Company on a fully
diluted basis; (ii) individuals who at the beginning of any period of two
consecutive calendar years constituted the Board of Directors (together with any
directors who are members of the Board of Directors on the date hereof and any
new directors whose election by the Board of Directors or whose nomination for
election by the Company's stockholders was approved by a vote of at least two
thirds of the members of the Board of Directors then still in office who either
were members of the Board of Directors at the beginning of such period or whose
election or nomination for election was previously so approved) cease for any
reason to constitute a majority of the members of such Board of Directors then
in office; (iii) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation),
5
in one or a series of related transactions, of all or substantially all of the
assets of the Company to any such "person" or "group" (other than to a
Restricted Subsidiary); or (iv) the merger or consolidation of the Company with
or into another corporation or the merger of another corporation with or into
the Company with the effect that immediately after such transaction any such
"person" or "group" of persons or entities shall have become the beneficial
owner of securities of the surviving corporation of such merger or consolidation
representing a majority of the total voting power of the then outstanding Voting
Stock of the surviving corporation.
"Change of Control Offer" shall have the meaning set forth in
Section 4.15.
"Change of Control Payment" shall have the meaning set forth
in Section 4.15.
"Change of Control Payment Date" shall have the meaning set
forth in Section 4.15.
"Class A Shares" means the Class A Shares, par value NLG 0.10
per share, of the Company.
"Class B Shares" means the Class B Shares, par value NLG 0.10
per share, of the Company.
"Company" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
such successor.
"Company Order" means a written order or request signed in the
name of the Company by two officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of the Company or any other officer so
authorized and delivered to the Trustee.
"Consolidated Cash Flow" means, with respect to any Person for
any period, the (i) Consolidated Net Income of such Person for such period plus,
to the extent deducted in computing such Consolidated Net Income (and without
duplication) Consolidated Fixed Charges, (ii) any provision for taxes (other
than taxes (either positive or negative) attributable to extraordinary and non
recurring gains or losses or sales of assets), (iii) any amount attributable to
depreciation and amortization expense and (iv) all other non-cash items reducing
Consolidated Net Income (excluding any non-cash charge to the extent that it
requires or represents an accrual of, or reserve for, cash charges in any future
period), less all non-cash items increasing Consolidated Net Income (excluding
any items which represent the reversal of an accrual of, or reserve for,
anticipated cash charges at any prior period), all as determined on a
consolidated basis for such Person
6
and its Restricted Subsidiaries in accordance with U.S. GAAP; provided, however,
that there shall be excluded therefrom the Consolidated Cash Flow (if positive)
of any Restricted Subsidiary (calculated separately for such Restricted
Subsidiary in the same manner as provided above) that is subject to a
restriction which prevents the payment of dividends or the making of
distributions to the Company or another Restricted Subsidiary to the extent of
such restriction.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, Consolidated Interest Expense plus dividends declared and
payable on Preferred Stock.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate amount of interest in respect of
Indebtedness (including capitalized interest, amortization of original issue
discount on any Indebtedness and the interest portion of any deferred payment
obligation) calculated in accordance with U.S. GAAP; all commissions, discounts
and other fees and charges owed with respect to letters of credit and bankers'
acceptance financing; the net costs associated with Interest Rate Agreements;
and interest on Indebtedness that is Guaranteed or secured by such Person or any
of its Restricted Subsidiaries), less the principal component of rentals in
respect of Capitalized Lease Obligations paid, accrued or scheduled to be paid
or to be accrued by such Person and its Restricted Subsidiaries during such
period; excluding, however, any amount of such interest of any Restricted
Subsidiary to the extent the net income of such Restricted Subsidiary is
excluded in the calculation of Consolidated Net Income pursuant to the last
proviso of such definition.
"Consolidated Net Income" means, with respect to any Person
for any period, the aggregate net income (or loss) of such Person and its
Restricted Subsidiaries for such period determined on a consolidated basis and
in conformity with U.S. GAAP; provided that the following items shall be
excluded in computing Consolidated Net Income (without duplication): (i) the net
income (or loss) of any Restricted Subsidiary accrued prior to the date it
becomes a Restricted Subsidiary or is merged into or consolidated with such
Person or any of its Restricted Subsidiaries or all or substantially all of the
property and assets of such Restricted Subsidiary are acquired by such Person or
any of its Restricted Subsidiaries; (ii) any gains or losses (on an after-tax
basis) but not losses attributable to Asset Sales; (iii) all extraordinary gains
and gains from Currency Agreements or Interest Rate Agreements and gains from
the extinguishment of debt; (iv) the net income (or loss) of any other Person
(other than net income (or loss) attributable to a Restricted Subsidiary) in
which such other Person (other than such Person or any of its Restricted
Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to such Person or any of its
Restricted Subsidiaries by such other Person during such period; (v) net gains
attributable to write-ups of assets or write-downs of liabilities (determined
after taking into account losses attributable to write-downs of assets or
write-ups of liabilities up to but not in
7
excess of such gains); and (vi) the cumulative effect of a change in accounting
principles after the Issue Date; and provided, further, that there shall be
further excluded therefrom the net income (but not the net loss) of any
Restricted Subsidiary (calculated separately for such Restricted Subsidiary in
the same manner as provided above) that is subject to a restriction which
prevents the payment of dividends or the making of distributions to the Company
or another Restricted Subsidiary to the extent of such restriction.
"Consolidated Net Worth" means, at any date of determination,
stockholders' equity as set forth on the most recently available quarterly or
annual consolidated balance sheet of such Person and its Restricted Subsidiaries
(which shall be as of a date not more than 90 days prior to the date of
determination), less any amounts attributable to Redeemable Stock or any equity
security convertible into or exchangeable for Indebtedness, the cost of treasury
stock and the principal amount of any promissory notes receivable from the sale
of Equity Interests in the Company or any of its Restricted Subsidiaries, each
item to be determined in conformity with U.S. GAAP (excluding the effects of
foreign currency exchange adjustments under Financial Accounting Standards Board
Statement of Financial Accounting Standards No. 52).
"Continuing Director" means, as of any date of determination,
any member of the Board of Directors who (i) was a member of such Board of
Directors on the Issue Date or (ii) was nominated for election or elected to
such Board of Directors with, or whose election to such Board of Directors was
approved by, the affirmative vote of a majority of the Continuing Directors who
were members of such Board of Directors at the time of such nomination or
election or (iii) is any designee of any Permitted Holder or was nominated by
any Permitted Holder.
"Corporate Trust Office" means the address of the Trustee
specified in Section 11.2.
"Covenant Defeasance" shall have the meaning set forth in
Section 8.3.
"Credit Facilities" means one or more senior credit
agreements, senior loan agreements or similar senior facilities with banks or
other institutional lenders providing for revolving credit loans, term loans,
receivables financing (including through the sale of receivables to such lenders
or to special purpose entities formed to borrow from such lenders against such
receivables) or letters of credit, in each case, as amended, restated, modified,
renewed, refunded, replaced or refinanced in whole or in part from time to time.
"Cumulative Consolidated Cash Flow" means, for the period
beginning on the Issue Date through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, Consolidated
8
Cash Flow of the Company and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with U.S. GAAP.
"Cumulative Consolidated Fixed Charges" means, for the period
beginning on the Issue Date through and including the end of the last fiscal
quarter (taken as one accounting period) preceding the date of any proposed
Restricted Payment, Consolidated Fixed Charges of the Company and its Restricted
Subsidiaries for such period determined on a consolidated basis in accordance
with U.S. GAAP.
"Currency Agreement" means any foreign exchange contract,
currency swap agreement and any other arrangement or agreement designed to
provide protection against fluctuations in currency values.
"Custodian" means any receiver, trustee, assignee, liquidator,
sequestrator or similar official under any Bankruptcy Law.
"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Default Interest Payment Date" shall have the meaning set
forth in Section 2.13.
"Definitive Notes" means Notes in definitive registered form
substantially in the form of Exhibits B and D.
"DTC" means The Depository Trust Company or its successors.
"DWAC" means the Depositary/Deposit Withdraw at Custodian
system.
"Eligible Accounts Receivable" means the accounts receivables
(net of any reserves and allowances for doubtful accounts in accordance with
U.S. GAAP) of any Person that are not more than 60 days past their due date and
that were entered into in the ordinary course of business on normal payment
terms as shown on the most recent consolidated balance sheet of such Person
filed with the Commission, all in accordance with U.S. GAAP.
"Equity Interests" means Capital Stock and all warrants,
options or other rights to acquire Capital Stock (but excluding any debt
security that is convertible into, or exchangeable for, Capital Stock).
"Escrow Account" means the account established by the Escrow
Agent pursuant to the terms of the Escrow Agreement for the deposit of the
Government
9
Securities purchased by, or purchased at the direction of, the Company with a
portion of the net proceeds from the Offering.
"Escrow Agent" means United States Trust Company of New York,
as escrow agent under the Escrow Agreement until a successor replaces it in
accordance with the terms of the Escrow Agreement and thereafter means such
successor.
"Escrow Agreement" means the Escrow Agreement, dated as of the
date of this Indenture, among the Escrow Agent, the Trustee and the Company,
governing the disbursement of funds from the Escrow Account.
"Escrow Collateral" means all funds and securities in the
Escrow Account and the proceeds thereof.
"Euroclear Operator" means Xxxxxx Guaranty Trust Company of
New York (Brussels office), as operator of the Euroclear System.
"Event of Default" shall have the meaning set forth in Section
6.1.
"Excess Proceeds" shall have the meaning set forth in Section
4.16.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Exchange Notes" have the meaning provided in the preamble to
this Indenture.
"Exchange Offer" shall have the meaning set forth in the
Registration Rights Agreement.
"Existing Warrants" means warrants to purchase 6.667 Ordinary
Shares of the Company, issued by the Company on May 27, 1998 pursuant to the
First Offering Warrant Agreement.
"Fair Market Value" means, with respect to any asset or
property, 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 acting in good faith, which determination
shall be evidenced by a resolution of such Board delivered to the Trustee.
11
"First Offering Warrant Agreement" means the Warrant
Agreement, dated as of May 27, 1998, between the Company and the United States
Trust Company of New York, as warrant agent thereunder.
"Global Note" shall have the meaning set forth in Section 2.1.
"Government Securities" means direct obligations of, or
obligations guaranteed by, the United States of America for the payment of which
obligations or guarantee the full faith and credit of the United States is
pledged and are not callable or redeemable at the option of the issuer thereof.
"Guarantee" means any obligation, contingent or otherwise, of
any Person directly or indirectly guaranteeing any Indebtedness or other
obligation in any manner (including, without limitation, letters of credit and
reimbursement agreements in respect thereof) of any other Person; provided that
the term "Guarantee" shall not include endorsements for collection or deposit in
the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Holder" means a Person in whose name a Note is registered on
the Registrar's books.
"Incur" means, with respect to any Indebtedness, to incur,
create, issue, assume, Guarantee or otherwise become liable for or with respect
to, or become responsible for, the payment of, contingently or otherwise, such
Indebtedness, including an Incurrence of Indebtedness by reason of the
acquisition of more than 50% of the Equity Interests in any Person; provided
that the accrual of interest shall not be considered an Incurrence of
Indebtedness.
"Indebtedness" means, with respect to any Person at any date
of determination (without duplication), (i) all indebtedness of such Person,
whether or not contingent (A) in respect of borrowed money, (B) evidenced by
bonds, debentures, notes or other similar instruments or letters of credit or
other similar instruments (including reimbursement obligations with respect
thereto), (C) representing the balance deferred and unpaid of the purchase price
of property or services, which purchase price is due more than six months after
the date of placing such property in service or taking delivery and title
thereto or the completion of such services, except Trade Payables, (D)
representing Capitalized Lease Obligations, (ii) all Indebtedness of other
Persons secured by a Lien on any asset of such Person, whether or not such
Indebtedness is assumed by such Person; provided that the amount of such
Indebtedness shall be the lesser of
12
(A) the fair market value of such asset at such date of determination and (B)
the amount of such Indebtedness, (iii) all Indebtedness of other Persons
Guaranteed by such Person to the extent such Indebtedness is Guaranteed by such
Person, (iv) the maximum fixed redemption or repurchase price of Redeemable
Stock of such Person at the time of determination and (v) to the extent not
otherwise included in this definition, obligations under Currency Agreements and
Interest Rate Agreements. The amount of Indebtedness of any Person at any date
shall be the outstanding balance at such date of all unconditional obligations
as described above and, with respect to contingent obligations, the maximum
liability upon the occurrence of the contingency giving rise to the obligation;
provided (x) that the amount outstanding at any time of any Indebtedness issued
with original issue discount is the face amount of such Indebtedness less the
remaining unamortized portion of the original issue discount of such
Indebtedness at such time as determined in conformity with U.S. GAAP and (y)
that Indebtedness shall not include any liability for federal, state, local or
other taxes.
"Indebtedness to Consolidated Cash Flow Ratio" shall have the
meaning set forth in Section 4.4.
"Indenture" means this Indenture, as amended, modified or
supplemented from time to time in accordance with the terms hereof.
"Initial Global Notes" means the Regulation S Global Note and
the U.S. Global Note.
"Initial Notes" shall have the meaning set forth in the
preamble to this Indenture.
"Initial Purchasers" means Xxxxxx Brothers Inc., Xxxxxx
Brothers International (Europe) and Paribas Corporation.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Notes.
"Interest Rate Agreement" means any interest rate swap
agreement, interest rate cap agreement, interest rate insurance, and any other
arrangement or agreement designed to provide protection against fluctuations in
interest rates.
"Investment" in any Person means, any direct or indirect
advance, loan or other extension of credit (including, without limitation, by
way of Guarantee or similar arrangement; but excluding advances to customers in
the ordinary course of business that are, in conformity with U.S. GAAP, recorded
as accounts receivable on the balance sheet of such Person or its Restricted
Subsidiaries) or
13
capital contribution to (by means of any transfer of cash or other tangible or
intangible property to others or any payment for any property or services for
the account or use of others), or any purchase or acquisition of Equity
Interests, bonds, notes, debentures, or other similar instruments issued by, any
other Person. For purposes of the definition of "Unrestricted Subsidiary" and
Sections 4.3 and 4.19, (i) "Investment" shall include (a) the Fair Market Value
of the assets (net of liabilities) of any Restricted Subsidiary of the Company
at the time that such Restricted Subsidiary of the Company is designated an
Unrestricted Subsidiary and shall exclude the Fair Market Value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company and
(b) the Fair Market Value, in the case of a sale of Equity Interests in
accordance with Section 4.19 such that a Person no longer constitutes a
Restricted Subsidiary, of the remaining assets (net of liabilities) of such
Person after such sale, and shall exclude the fair market value of the assets
(net of liabilities) of any Unrestricted Subsidiary at the time that such
Unrestricted Subsidiary is designated a Restricted Subsidiary of the Company and
(ii) any property transferred to or from an Unrestricted Subsidiary shall be
valued at its Fair Market Value at the time of such transfer.
"Issue Date" means the date on which the Notes are originally
issued under this Indenture.
"Legal Defeasance" shall have the meaning set forth in Section
8.2.
"Legal Holiday" means a Saturday, a Sunday or a day on which
banking institutions in the City of Amsterdam, The Netherlands or The City of
New York or a place of payment are authorized or required by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next succeeding day
that is not a Legal Holiday, and no interest shall accrue for the intervening
period.
"Lien" means, any mortgage, pledge, security interest,
encumbrance, lien or charge of any kind in respect of an asset, whether or not
filed, recorded or otherwise perfected under applicable law (including, without
limitation, any conditional sale or other title retention agreement or lease in
the nature thereof, any sale with recourse against the seller or any Affiliate
of the seller, or any option or other agreement to sell or give any security
interest).
"Liquidated Damages" shall have the meaning set forth in the
Registration Rights Agreement.
14
"Maturity Date" means May 15, 2008.
"Most Recent Balance Sheet" means, with respect to any Person,
the most recent consolidated balance sheet of such Person reported on by an
internationally recognized firm of independent accountants without qualification
as to scope.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Net Cash Proceeds" means, (a) with respect to any Asset Sale,
the proceeds of such Asset Sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations (to the extend
corresponding to the principal, but not interest, component thereof) when
received in the form of cash or Cash Equivalents (except to the extent such
obligations are financed or sold with recourse to the Company or any Restricted
Subsidiary of the Company) and proceeds from the conversion of other property
received when converted to cash or Cash Equivalents, net of (i) brokerage
commissions and other fees and expenses (including fees and expenses of counsel
and investment bankers) related to such Asset Sale, (ii) taxes paid or payable
as a result thereof (after taking into account any available tax credits or
deductions and any tax sharing agreements), (iii) payments made to repay
Indebtedness or any other obligation outstanding at the time of such Asset Sale
that either (A) is secured by a Lien on the property or assets sold or (B) is
required to be paid as a result of such sale and (iv) appropriate amounts to be
provided by the Company or any Restricted Subsidiary of the Company as a reserve
against any liabilities associated with such Asset Sale, including, without
limitation, pension and other post-employment benefit liabilities, liabilities
related to environmental matters and liabilities under any indemnification
obligations associated with such Asset Sale, all as determined in conformity
with U.S. GAAP; provided that such amounts which cease to be held as reserves
shall be deemed Net Cash Proceeds; and (b) with respect to any capital
contribution or any issuance or sale of Equity Interests (other than Redeemable
Stock), the proceeds of such capital contribution, issuance or sale in the form
of cash or Cash Equivalents, including payments in respect of deferred payment
obligations (to the extent corresponding to the principal, but not interest,
component thereof) when received in the form of cash or Cash Equivalents (except
to the extent (1) such obligations are financed, directly or indirectly, with
money borrowed from the Company or any Restricted Subsidiary or otherwise
financed or sold with recourse to the Company or any Restricted Subsidiary or
(2) the capital contribution or purchase of the Equity Interests is otherwise
financed, directly or indirectly, by the Company or any Restricted Subsidiary,
including through funds contributed, extended, guaranteed or otherwise advanced
by the Company or
15
any Affiliate) and proceeds from the conversion of other property received when
converted to cash or Cash Equivalents, net of attorney's fees, accountants'
fees, underwriters' or placement agents' fees, discounts or commissions and
brokerage, consultant and other fees incurred in connection with such issuance
or sale and net of taxes paid or payable as a result thereof.
"Non-U.S. Person" means a person who is not a U.S. Person, as
defined in Regulation S.
"Notes" shall have the meaning set forth in the preamble of
this Indenture.
"Offer Amount" shall have the meaning set forth in Section
4.16.
"Offering" means the offering of the Notes described in the
Offering Memorandum.
"Offering Memorandum" means the Offering Memorandum, dated as
of November 17, 1998, relating to the Units.
"Offer Period" shall have the meaning set forth in Section
4.16.
"Officer" means, with respect to any Person (other than any
Agent), the Chairman of the Board, any Director, the Chief Executive Officer,
the President, any Vice President, the Chief Financial Officer, the Treasurer,
the Assistant Treasurer, the Controller or the Secretary of such Person.
"Officers' Certificate" means a certificate signed on behalf
of the Company by two officers of the Company, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Company that meets the requirements set
forth in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion from legal
counsel which and who are reasonably acceptable to, and addressed to, the
Trustee complying with the requirements of Sections 11.4 and 11.5. Unless
otherwise required by the TIA, the legal counsel may be an employee of or
counsel to the Company or the Trustee.
"Ordinary Shares" means the ordinary shares, consisting of the
Class A Shares and the Class B Shares, each par value NLG 0.10 per share, of the
Company.
"Paying Agent" shall have the meaning set forth in Section
2.3.
16
"Permitted Business" means the business of (i) transmitting,
or providing services relating to the transmission of, voice, video or data
through owned or leased transmission facilities, (ii) constructing, creating,
developing or marketing communications related network equipment, software and
other devices for use in a telecommunications business or (iii) evaluating,
participating or pursuing any other activity or opportunity that is primarily
related to those identified in clause (i) or (ii) above.
"Permitted Holder" means, collectively, Telecom Founders B.V.,
NeSBIC Venture Fund C.V., Cromwilld Limited, Paribas Deelnemingen N.V.,
Nederlandse Participatie Maatschappij N.V. and any Affiliate of the foregoing
Persons.
"Permitted Investment" means (i) an Investment in a Restricted
Subsidiary or a Person which will, upon the making of such Investment, become a
Restricted Subsidiary or be merged or consolidated with or into or transfer or
convey all or substantially all its assets to, the Company or a Restricted
Subsidiary; (ii) payroll, travel and similar advances to cover matters that are
expected at the time of such advance ultimately to be treated as expenses in
accordance with U.S. GAAP; (iii) stock, obligations or securities received in
satisfaction of judgments; (iv) Investments in any Person (the primary business
of which is related, ancillary or complementary to the business of the Company
on the date of such Investment) at any one time outstanding (measured on the
date each such Investment was made without giving effect to subsequent changes
in value) in an aggregate amount not to exceed the greater of (x) $10.0 million
and (y) 5.0% of the Company's total consolidated assets as of the end of the
most recently completed fiscal quarter; (v) Investments in Cash Equivalents;
(vi) Investments made as a result of the receipt of noncash consideration from
any Asset Sale made in compliance with Section 4.16; (vii) Investments made in
the ordinary course of the telecommunications business in the Permitted Business
and on ordinary business terms in the Permitted Business in consortia formed to
construct transmission infrastructure for use primarily in the Permitted
Business, provided such Investment entitles the Company to rights of way or
rights of use on such transmission infrastructure; (viii) Investments made in
the ordinary course of the telecommunications business and on ordinary business
terms as partial payment for constructing a network relating principally to the
Permitted Business; and (ix) any Investment in Pledged Securities.
"Permitted Liens" means (i) Liens for taxes, assessments,
governmental charges or claims that are being contested in good faith by
appropriate legal proceedings
17
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with U.S. GAAP
shall have been made; (ii) statutory Liens of landlords and carriers,
warehousemen, mechanics, suppliers, materialmen, repairmen or other similar
Liens arising in the ordinary course of business and with respect to amounts not
yet delinquent or being contested in good faith by appropriate legal proceedings
promptly instituted and diligently conducted and for which a reserve or other
appropriate provision, if any, as shall be required in conformity with U.S. GAAP
shall have been made; (iii) Liens incurred or deposits made in the ordinary
course of business in connection with workers' compensation, unemployment
insurance and other types of social security; (iv) easements, rights-of-way,
municipal and zoning ordinances and similar charges, encumbrances, title defects
or other irregularities that do not materially interfere with the ordinary
course of business of the Company or any of its Restricted Subsidiaries; (v)
Liens (including extensions and renewals thereof) upon real or personal property
of a Restricted Subsidiary purchased or leased after the Issue Date; provided
that (a) such Lien is created solely for the purpose of securing Indebtedness
Incurred by such Restricted Subsidiary in compliance with Section 4.4 (1) to
finance the cost of the item of property or assets subject thereto and such Lien
is created prior to, at the time of or within six months after the later of the
acquisition and the Incurrence of such Indebtedness or (2) to refinance any
Indebtedness of a Restricted Subsidiary previously so secured, (b) the principal
amount of the Indebtedness secured by such Lien does not exceed 100% of such
cost and (c) any such Lien shall not extend to or cover any property or assets
other than such item of property or assets; (vi) any interest or title of a
lessor in the property subject to any Capitalized Lease or operating lease of a
Restricted Subsidiary which, in each case, is permitted under the Indenture;
(vii) Liens on property of, or on Equity Interests in or Indebtedness of, any
Person existing at the time such Person becomes, or becomes a part of, any
Restricted Subsidiary; provided that such Liens were not created, incurred or
assumed in contemplation of such transaction and do not extend to or cover any
property or assets of the Company or any Restricted Subsidiary other than the
property or assets so acquired; (viii) Liens arising from the rendering of a
final judgment or order against the Company or any Restricted Subsidiary of the
Company that does not give rise to an Event of Default; (ix) Liens encumbering
customary initial deposits and margin deposits and other Liens that are either
within the general parameters customary in the industry or incurred in the
ordinary course of business, in each case, securing Indebtedness under Interest
Rate Agreements and Currency Agreements; (x) Liens arising out of conditional
sale, title retention, consignment or similar
18
arrangements for the sale of goods entered into by the Company or any of its
Restricted Subsidiaries in the ordinary course of business in accordance with
the past practices of the Company and its Restricted Subsidiaries prior to the
Issue Date; (xi) Liens existing on the Issue Date or securing the Notes or any
Guarantee of the Notes; (xii) Liens granted after the Issue Date on any assets
or Equity Interests in the Company or its Restricted Subsidiaries created in
favor of the Holders; (xiii) Liens created in connection with the incurrence of
any Indebtedness permitted to be Incurred under clause (iii) of paragraph (b) of
Section 4.4; provided that the Indebtedness which it refinances is secured by
similar Liens; (xiv) Liens securing Indebtedness under Credit Facilities
incurred in compliance with clause (viii) of paragraph (b) of Section 4.4; and
(xv) Liens with respect to the Escrow Account arising under the Escrow Agreement
(or any similar escrow arrangement entered into in connection with the Existing
Notes).
"Person" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
"Pledged Securities" means the Government Securities purchased
by the Company and deposited by the Company in the Escrow Account.
"Preferred Stock" means, with respect to any Person, any and
all shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) 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.
"Private Placement Legend" means the legend set forth in
Section 2.7(g).
"Pro Forma Consolidated Cash Flow" means, with respect to any
Person for any period, the Consolidated Cash Flow of such Person for such period
calculated on a pro forma basis to give effect to any Asset Disposition or Asset
Acquisition (including acquisitions of other Persons by merger, consolidation or
purchase of Equity Interests) during such period as if such Asset Disposition or
Asset Acquisition had taken place on the first day of such period and income (or
losses) ceased to accrue or accrued, as the case may be, therefrom from such
date.
"Public Equity Offering" means an underwritten primary public
offering of Ordinary Shares of the Company
19
pursuant to an effective registration statement under the Securities Act.
"Purchase Date" shall have the meaning set forth in Section
4.16.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A under the Securities Act.
"Record Date" means the Record Dates specified in the Notes.
"Redeemable Stock" means , with respect to any Person, any
Capital Stock which by its terms (or by the terms of any security into which it
is convertible or for which it is exchangeable) or upon the happening of any
event (i) matures or is mandatorily redeemable pursuant to a sinking fund
obligation or otherwise, (ii) is convertible or exchangeable for Indebtedness or
Redeemable Stock or (iii) is redeemable or must be purchased, upon the
occurrence of certain events or otherwise, by such Person at the option of the
holder thereof, in whole or in part, in each case on or prior to the first
anniversary of the Stated Maturity of the Notes; provided, however, that any
Capital Stock that would not constitute Redeemable Stock but for provisions
thereof giving holders thereof the right to require such Person to purchase or
redeem such Capital Stock upon the occurrence of an "asset sale" or "change of
control" occurring prior to the first anniversary of the Stated Maturity of the
Notes shall not constitute Redeemable Stock if (x) the "asset sale" or "change
of control" provisions applicable to such Capital Stock are not more favorable
to the holders of such Capital Stock than the terms applicable to the Notes and
described under Section 4.15 and Section 4.16 and (y) any such requirement only
becomes operative after compliance with such terms applicable to the Notes
including the purchase of any Notes tendered pursuant thereto.
"Redemption Date" when used with respect to any Note to be
redeemed, means the date fixed for such redemption pursuant to this Indenture
and Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the
Exchange Notes.
"Redemption Price" when used with respect to any Note to be
redeemed, means the price fixed for such redemption pursuant to this Indenture
and Paragraphs 8 and 9 of the Initial Notes and Paragraphs 7 and 8 of the
Exchange Notes.
"Registrar" shall have the meaning set forth in Section 2.3.
20
"Registration Rights Agreement" means the Registration Rights
Agreement between the Company and the Initial Purchasers, relating to the Notes
and dated as of December 3, 1998, as the same may be amended, supplemented or
modified from time to time in accordance with the terms thereof.
"Regulation S" means Regulation S (including any successor
regulation thereto) under the Securities Act, as it may be amended from time to
time.
"Regulation S Global Note" shall have the meaning set forth in
Section 2.1.
"Regulation S Note" shall have the meaning set forth in
Section 2.1.
"Relevant Taxing Jurisdiction" shall have the meaning set
forth in Section 4.20.
"Replacement Assets" means any property, plant or equipment of
a nature or type that are used or usable in Permitted Businesses.
"Representatives" means Xxxxxx Brothers Inc. and Xxxxxx
Brothers International (Europe), on behalf of the Initial Purchasers.
"Restricted Period" shall have the meaning set forth in
Section 2.7(c).
"Restricted Subsidiary" means, at any time, any direct or
indirect Subsidiary of the Company that is then not an Unrestricted Subsidiary.
"Rule 144" means Rule 144 (including any successor regulation
thereto) under the Securities Act, as it may be amended from time to time.
"Rule 144A" means Rule 144A (including any successor
regulation thereto) under the Securities Act, as it may be amended from time to
time.
"S&P" means Standard and Poor's Ratings Group.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Share Capital" means, at any time of determination, the
stated capital of the Equity Interests
21
(other than Redeemable Stock) and additional paid-in capital of the Company as
set forth on the most recent balance sheet of the Company at such time.
"Significant Subsidiary" shall have the meaning set forth in
Rule 405 (including any successor regulation thereto) of the rules and
regulations (the "Rules and Regulations") of the Commission, as they may be
amended from time to time.
"Stated Maturity" means, (i) with respect to any debt
security, the date specified in such debt security as the fixed date on which
the final installment of principal of such debt security is due and payable and
(ii) with respect to any scheduled installment of principal of or interest on
any debt security, the date specified in such debt security as the fixed date on
which such installment is due and payable.
"Strategic Minority Capital Stock Issues" means issuances or
sales of common stock of a Restricted Subsidiary, principally engaged in
business outside The Netherlands, to a Person which is principally engaged in
the Permitted Business and which has an equity market capitalization, a net
asset value or annual revenues of at least $500 million, which issuances or
sales do not represent more than 49% of the outstanding common stock of such
Restricted Subsidiary; provided that any such Strategic Minority Capital Stock
Issue is made to only one such Person with respect to any Restricted Subsidiary.
"Subsidiary" means, with respect to any Person (i) any
corporation, association or other business entity of which more than 50% of the
outstanding Voting Stock is at the time of determination owned, directly or
indirectly, by such Person or one or more other Subsidiaries of such Person and
(ii) any partnership, joint venture, limited liability company or similar entity
of which (A) more than 50% of the capital accounts, distribution rights, total
equity and voting interests or general or limited partnership interests, as
applicable, are owned or controlled, directly or indirectly, by such Person or
one or more of the other Subsidiaries of that Person or a combination thereof
whether in the form of membership, general, special or limited partnership or
otherwise and (B) such Person or any Restricted Subsidiary of such Person is a
controlling general partner, co-venturer or manager or is in a similar position
or otherwise controls such entity.
"Successor Company" shall have the meaning set forth in
Section 5.1.
22
"Taxes" shall have the meaning set forth in
Section 4.20.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
Sections 77aaa-77bbbb), as it may be amended from time to time.
"Telecommunications Assets" means, with respect to any Person,
assets used in the Permitted Business (or Equity Interests of a Person that
becomes a Restricted Subsidiary, the assets of which consist principally of such
Telecommunications Assets) that are purchased or acquired by the Company or a
Restricted Subsidiary after the Issue Date.
"Trade Payables" means any accounts payable or any other
indebtedness or monetary obligation to trade creditors created, assumed or
Guaranteed by the Company or any of its Restricted Subsidiaries arising in the
ordinary course of business in connection with the acquisition of goods and
services.
"Transaction Date" means, with respect to the Incurrence of
any Indebtedness by the Company or any of its Restricted Subsidiaries, the date
such Indebtedness is to be Incurred and, with respect to any Restricted Payment,
the date such Restricted Payment is to be made.
"Trust Officer" means any officer within the corporate trust
department (or any successor group of the Trustee), including any vice
president, assistant vice president, corporate trust officer, assistant
corporate trust officer, 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 or her knowledge of and
familiarity with the particular subject.
"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.
"Unit Agent" means United States Trust Company of New York, as
Unit Agent, under the Unit Agreement.
"Unit Agreement" means the Unit Agreement, dated as of
December 3, 1998, among the Company, the Trustee, the Unit Agent and United
States Trust Company of New York, as Warrant Agent.
23
"Units" means units each consisting of $1,000 aggregate
principal amount of Notes and one Warrant to purchase 6.667 Class B Shares of
the Company, issued by the Company on the Issue Date.
"Unrestricted Subsidiary" means (i) any Subsidiary of the
Company which at the time of determination is an Unrestricted Subsidiary (as
designated by the Board of Directors in the manner provided below) and (ii) any
Subsidiary of an Unrestricted Subsidiary. The Board of Directors may designate
any Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary of the Company) to be an Unrestricted Subsidiary unless such
Subsidiary, or any of its Subsidiaries, owns any Equity Interests or
Indebtedness of, or owns or holds any Lien on any property of, the Company or
any Restricted Subsidiary; provided that (a) the Company certifies in an
Officers' Certificate that such designation complies with the covenants
described under Section 4.3, (b) such Subsidiary is not party to any agreement,
contract, arrangement or understanding with the Company or any Restricted
Subsidiary of the Company unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Restricted Subsidiary than those that might reasonably be obtained in a
comparable arm's-length transaction at the time from Persons who are not
Affiliates of the Company, (c) neither the Company nor any of its Restricted
Subsidiaries has any direct or indirect obligation (1) to subscribe for
additional Equity Interests in such Subsidiary or any Subsidiary of such
Subsidiary or (2) to maintain or preserve such Subsidiary's financial condition
or to cause such Subsidiary to achieve any specified levels of operating results
and (d) such Subsidiary and its Subsidiaries has not at the time of designation,
and does not thereafter, Incur any Indebtedness other than Unrestricted
Subsidiary Indebtedness. The Board of Directors may designate any Unrestricted
Subsidiary to be a Restricted Subsidiary of the Company; provided that
immediately after giving effect to such designation (x) the Company could Incur
$1.00 of additional Indebtedness under Section 4.4(a) on a pro forma basis
taking into account such designation and (y) no Default or Event of Default
shall have occurred and be continuing. Any such designation by the Board of
Directors shall be evidenced to the Trustee by promptly filing with the Trustee
a copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing provisions.
"Unrestricted Subsidiary Indebtedness" means Indebtedness of
any Unrestricted Subsidiary (i) as to which neither the Company nor any
Restricted Subsidiary is directly or indirectly liable (by virtue of the Company
or any such
24
Restricted Subsidiary being the primary obligor on, guarantor of, or otherwise
liable in any respect to, such Indebtedness), and (ii) which, upon the
occurrence of a default with respect thereto, does not result in, or permit any
holder of any Indebtedness of the Company or any Restricted Subsidiary to
declare, a default on such Indebtedness of the Company or any Restricted
Subsidiary or cause the payment thereof to be accelerated or payable prior to
its Stated Maturity.
"U.S. GAAP" means, at any date of determination,
generally accepted accounting principles as in effect in the
United States of America which are applicable at the date of
determination and which are consistently applied for all
applicable periods.
"U.S. Global Note" shall have the meaning set forth in Section
2.1.
"U.S. Notes" shall have the meaning set forth in Section 2.1.
"U.S. Person" means a "U.S. person" as defined in Rule 902
under the Securities Act or any successor to such Rule.
"Voting Stock" means, with respect to any Person, Capital
Stock of any class or kind ordinarily entitled to vote for the election of
directors thereof at a meeting of Stockholders called for such purpose, without
the occurrence of any additional event or contingency.
"Warrant Agreement" means the Warrant Agreement, dated as of
the Issue Date, between the Company and the United States Trust Company of New
York, as Warrant Agent.
"Warrants" means warrants issued by the Company on the Issue
Date pursuant to the Warrant Agreement, each of which represents the right to
purchase 6.667 Class B Shares of the Company.
"Weighted Average Life to Maturity" means, at any date of
determination with respect to any Indebtedness, the quotient obtained by
dividing (i) (a) the sum of the products of the number of years from such date
of determination to the dates of each successive scheduled principal payment of,
or redemption or similar payment with respect to, such Indebtedness multiplied
by (b) the amount of such principal payment, by (ii) the sum of all such
principal payments.
"Wholly Owned Restricted Subsidiary" means any Restricted
Subsidiary all of the outstanding voting Equity
25
Interests (other than directors' qualifying shares) of which are owned, directly
or indirectly, by the Company.
SECTION 1.2 Incorporation by Reference of TIA. This Indenture
is subject to the mandatory provisions of the TIA which as of the date hereof
and thereafter as in effect are 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 Notes;
"indenture security holder" means a Holder;
"indenture to be qualified" means this Indenture;
"indenture trustee" or "institutional trustee"
means the Trustee; and
"obligor" on the indenture securities means the
Company or any other obligor on the Notes.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.3 Rules of Construction. Unless the
context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has
the meaning assigned to it in accordance with U.S. GAAP;
(c) "or" is not exclusive;
(d) words in the singular include the plural, and
words in the plural include the singular;
(e) provisions apply to successive events and
transactions; and
(f) "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.
26
ARTICLE II
THE NOTES
SECTION 2.1 Form and Dating. The Initial Notes and the
notation relating to the Trustee's certificate of authentication shall be
substantially in the form of Exhibits A or B, as applicable. The Exchange Notes
and the notation relating to the Trustee's certificate of authentication shall
be substantially in the form of Exhibits C or D, as applicable. The Notes 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 Notes and any
notation, legend or endorsement on them. Each Note shall be dated the date of
its issuance and shall show the date of its authentication.
The terms and provisions contained in the Notes, annexed
hereto as Exhibits A, B, C or D shall constitute, and are hereby expressly made,
a part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. The Notes will initially be
represented by the Initial Global Notes.
Notes offered and sold in their initial distribution in
reliance on Regulation S shall be initially issued as one or more global notes,
in registered global form without interest coupons, substantially in the form of
Exhibit A hereto, with such applicable legends as are provided in Exhibit A
hereto, except as otherwise permitted herein. Such Initial Global Notes shall be
referred to collectively herein as the "Regulation S Global Note." Such
Regulation S Global Note shall be deposited on behalf of the holders of the
Notes represented thereby with the Trustee, at its New York office, as custodian
for DTC, and registered in the name of DTC or its nominee, duly executed by the
Company and authenticated by the Trustee or an Authenticating Agent as provided
herein, for credit to the accounts of the respective depositaries for Euroclear
and Cedel (or such other accounts as they may direct); provided that until such
time as the Notes Separate (as defined herein) from the Warrants, the Regulation
S Global Note shall be registered in the name of the Unit Agent and shall be
represented by a Global Unit (as defined in the Unit Agreement) deposited with
the Unit Agent as custodian for and registered in the name of DTC or its
nominee, for credit to the subscribers' respective accounts at Euroclear and
Cedel. The aggregate principal amount of the Regulation S Global Note may from
time to time be increased or decreased by adjustments made on the records of the
Trustee, as custodian for DTC, or the records of DTC or its nominee, as the case
may be, as hereinafter provided (or by the issue of a further Regulation S
Global Note), in
27
connection with a corresponding decrease or increase in the aggregate principal
amount of the U.S. Global Note or in consequence of the issue of Definitive
Notes or additional Regulation S Notes, as hereinafter provided. The Regulation
S Global Note and all other Initial Notes that are not U.S. Global Notes shall
collectively be referred to herein as the "Regulation S Notes".
Notes offered and sold in their initial distribution in
reliance on Rule 144A shall be initially issued as one or more global notes in
registered, global form without interest coupons, substantially in the form of
Exhibit A hereto, with such applicable legends as are provided in Exhibit A
hereto, except as otherwise permitted herein. Such Initial Global Note shall be
referred to collectively herein as the "U.S. Global Note." Such U.S. Global
Notes shall be deposited on behalf of the holders of the Notes represented
thereby by the Trustee, at its New York office, as custodian for DTC, duly
executed by the Company and authenticated by the Trustee or Authenticating Agent
as provided herein; provided until such time as the Notes Separate from the
Warrants, the U.S. Global Note shall be registered in the name of the Unit Agent
and shall be represented by a Global Unit deposited with the Unit Agent as
custodian for and registered in the name of DTC or its nominee. The aggregate
principal amount of the U.S. Global Note may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
DTC, or the records of DTC or its nominee, as the case may be, as hereinafter
provided (or by the issue of a further U.S. Global Note), in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Regulation S Global Note or in consequence of the issue of Definitive Notes or
additional U.S. Notes, as hereinafter provided. The U.S. Global Note and all
other Initial Notes evidencing the debt, or any portion of the debt, initially
evidenced by such U.S. Global Note, shall collectively be referred to herein as
the "U.S. Notes."
SECTION 2.2 Execution and Authentication. Two Officers, or an
Officer and a Secretary, shall sign, or one Officer shall sign and one Officer
or an Assistant Secretary (each of whom shall, in each case, have been duly
authorized by all requisite corporate actions) shall attest to, the Notes for
the Company by manual or facsimile signature.
If an Officer or Secretary whose signature is on a Note was an
Officer or Secretary at the time of such execution but no longer holds that
office or position at the time the Trustee authenticates the Note, the Note
shall be valid nevertheless.
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A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate (i) Initial Notes for original
issue in the aggregate principal amount not to exceed $150,000,000, and (ii)
Exchange Notes from time to time for issue in the aggregate principal amount not
to exceed $150,000,000 for issuance in exchange for a like principal amount of
Initial Notes pursuant to an exchange offer registration statement under the
Securities Act or pursuant to a Private Exchange (as defined in the Registration
Rights Agreement), in each case upon receipt of a Company Order in the form of
an Officers' Certificate. Exchange Notes may have such distinctive series
designation, and such changes in the form thereof, as are specified in the
written order referred to in the preceding sentence. The Officers' Certificate
shall specify the amount of Notes to be authenticated, the series and type of
Notes and the date on which the Notes are to be authenticated, whether the Notes
are to be Initial Notes or Exchange Notes, whether the Notes are to be issued as
Definitive Notes or Global Notes and whether or not the Notes shall bear the
Private Placement Legend, or such other information as the Trustee may
reasonably request. In authenticating the Notes and accepting the
responsibilities under this Indenture in relation to the Notes the Trustee shall
be entitled to receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the form and terms thereof have been established in
conformity with the provisions of this Indenture. The aggregate principal amount
of Notes outstanding at any time may not exceed $150,000,000, except as provided
in Section 2.8. Upon receipt of a Company Order, the Trustee shall authenticate
Notes in substitution of Notes originally issued to reflect any name change of
the Company.
The Trustee may appoint an authenticating agent
("Authenticating Agent") reasonably acceptable to the Company to authenticate
Notes. Unless otherwise provided in the appointment, an Authenticating Agent may
authenticate Notes whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such
Authenticating Agent. An Authenticating Agent has the same rights as an Agent to
deal with the Company and Affiliates of the Company. The Trustee hereby appoints
United States Trust Company of New York to be the Authenticating Agent on the
Issue Date.
The Notes shall be issuable only in denominations of $1,000
and any integral multiple thereof.
29
SECTION 2.3 Registrar and Paying Agent. The Company shall
maintain an office or agency in the Borough of Manhattan, The City of New York
and, if and so long as the Notes are listed on the Luxembourg Stock Exchange and
the rules of such stock exchange so require, in Luxembourg, where (i) Global
Notes may be presented or surrendered for registration of transfer or for
exchange ("Registrar"), (ii) Global Notes may be presented or surrendered for
payment ("Paying Agent") and (iii) notices and demands in respect of such Global
Notes and this Indenture may be served. In the event that Definitive Notes are
issued, (x) Definitive Notes may be presented or surrendered for registration of
transfer or for exchange, (y) Definitive Notes may be presented or surrendered
for payment and (z) notices and demands in respect of the Definitive Notes and
this Indenture may be served at an office of the Registrar or the Paying Agent,
as applicable, in the Borough of Manhattan, The City of New York. The Registrar
shall keep a register of the Notes and of their transfer and exchange. The
Company, upon notice to the Trustee, may have one or more co-Registrars and one
or more additional Paying Agents reasonably acceptable to the Trustee. The term
"Registrar" includes any co-Registrar and the term "Paying Agent" includes any
additional Paying Agent. The Company initially appoints United States Trust
Company of New York as Registrar and Paying Agent until such time as United
States Trust Company of New York has resigned or a successor has been appointed.
The Company may change any Registrar or Paying Agent without notice to any
Holder. Payment of principal will be made upon the surrender of Definitive Notes
at the office of the Paying Agent, including, if any, the Paying Agent in
Luxembourg. In the case of a transfer of a Definitive Note in part, upon
surrender of the Definitive Note to be transferred, a Definitive Note shall be
issued to the transferee in respect of the principal amount transferred and a
Definitive Note shall be issued to the transferor in respect of the balance of
the principal amount of the transferred Definitive Note at the office of any
transfer agent, including, if any, the transfer agent in Luxembourg.
If Definitive Notes are issued, the Company will appoint
Kredietbank S.A. Luxembourgeoise, or such other Person located in Luxembourg and
reasonably acceptable to the Trustee, as an additional paying and transfer
agent. Upon the issuance of Definitive Notes, Holders will be able to receive
principal and interest on the Notes and will be able to transfer Definitive
Notes at the Luxembourg office of such paying and transfer agent, subject to the
right of the Company to mail payments in accordance with the terms of this
Indenture.
30
SECTION 2.4 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, Additional
Amounts, if any, Liquidated Damages, if any, premium, if any, or interest on,
the Notes, and shall notify the Trustee of any Default by the Company in making
any such payment. The Company at any time may require a Paying Agent to
distribute all assets held by it to the Trustee and account for any assets
disbursed and the Trustee may at any time during the continuance of any payment
Default, upon written request to a Paying Agent, require such Paying Agent to
distribute all assets held by it to the Trustee and to account for any assets
distributed. Upon distribution to the Trustee of all assets that shall have been
delivered by the Company to the Paying Agent, the Paying Agent shall have no
further liability for such assets.
SECTION 2.5 List of Holders. 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 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 2.6 Book-Entry Provisions for Global Notes. (a) The
Global Notes initially shall (i) be registered in the name of DTC or the nominee
of such depositary, (ii) be delivered to the Trustee as custodian for such
depositary and (iii) bear legends as set forth in Section 2.7(g) hereto.
(b) Restrictions on Transfer and Exchange of Global Notes.
Notwithstanding any other provisions of this Indenture, a Global Note may not be
transferred as a whole except by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another successor of DTC or a nominee of such successor depositary.
Interests of beneficial owners in the Global Notes may be transferred or
exchanged for Definitive Notes in accordance with the rules and procedures of
DTC and the provisions of Section 2.7. All Global Notes shall be exchanged by
the Company (with authentication by the Trustee) for one or more Definitive
Notes, if (a) DTC (i) has notified the Company that it is unwilling or unable to
continue as, or ceases to be, a clearing agency registered under the Exchange
Act and (ii) a successor to DTC registered as a clearing agency under the
Exchange Act is not able to be appointed by the Company within 90 days of such
notification or (b) at any
31
time at the option of the Company. If an Event of Default occurs and is
continuing, the Company shall, at the request of the Holder thereof, exchange
all or part of a Global Note for one or more Definitive Notes (with
authentication by the Trustee); provided, however, that the principal amount at
maturity of such Definitive Notes and such Global Note after such exchange shall
be $1,000 or integral multiples thereof. Whenever all of a Global Note is
exchanged for one or more Definitive Notes, it shall be surrendered by the
Holder thereof to the Trustee for cancellation. Whenever a part of a Global Note
is exchanged for one or more Definitive Notes the Global Note shall be
surrendered by the Holder thereof to the Trustee who shall cause an adjustment
to be made to Schedule A of such Global Note such that the principal amount of
such Global Note will be equal to the portion of such Global Note not exchanged
and shall thereafter return such Global Note to such Holder. A Global Note may
not be exchanged for a Definitive Note other than as provided in this Section
2.6(b).
(c) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b) of this Section 2.6, the
Global Notes 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 DTC in exchange for its beneficial interest in
the Global Notes, an equal aggregate principal amount of Definitive Notes of
authorized denominations.
(d) Any Definitive Note constituting a U.S. Note delivered in
exchange for an interest in a Global Note pursuant to paragraph (b) of this
Section 2.6 shall, except as otherwise provided by Section 2.8, bear the Private
Placement Legend.
SECTION 2.7 Registration of Transfer and Exchange. (a)
Notwithstanding any provision to the contrary herein, so long as a Note remains
outstanding, transfers of beneficial interests in Global Notes or transfers of
Definitive Notes, in whole or in part, shall be made only in accordance with
this Section 2.7.
(b) U.S. Global Note to Regulation S Global Note. If a holder
of a beneficial interest in the U.S. Global Note deposited with DTC wishes at
any time to exchange its interest in such U.S. Global Note for an interest in
the Regulation S Global Note, or to transfer its interest in such U.S. Global
Note to a Person who wishes to take delivery thereof in the form of an interest
in such Regulation S Global Note, such holder may, subject to the rules and
procedures of DTC and to the requirements set forth in the following sentence,
32
exchange or cause the exchange or transfer or cause the transfer of such
interest for an equivalent beneficial interest in such Regulation S Global Note.
Upon receipt by the Trustee, as Transfer Agent, at its office in The City of New
York of (1) instructions given in accordance with DTC's procedures from or on
behalf of a holder of a beneficial interest in the U.S. Global Note, directing
the Trustee (via DWAC), as Transfer Agent, to credit or cause to be credited a
beneficial interest in the Regulation S Global Note in an amount equal to the
beneficial interest in the U.S. Global Note to be exchanged or transferred, (2)
a written order given in accordance with DTC's procedures containing information
regarding the Euroclear or Cedel account to be credited with such increase and
the name of such account, and (3) a certificate in the form of Exhibit E given
by the holder of such beneficial interest stating that the exchange or transfer
of such interest has been made pursuant to and in accordance with Rule 904 of
Regulation S or Rule 144 under the Securities Act, the Trustee, as Transfer
Agent, shall promptly deliver appropriate instructions (via DWAC) to DTC, its
nominee, or the custodian for DTC, as the case may be, to reduce or reflect on
its records a reduction of the U.S. Global Note by the aggregate principal
amount of the beneficial interest in such U.S. Global Note to be so exchanged or
transferred from the relevant participant, and the Trustee, as Transfer Agent,
shall promptly deliver appropriate instructions (via DWAC) to DTC, its nominee,
or the custodian for DTC, as the case may be, concurrently with such reduction,
to increase or reflect on its records an increase of the principal amount of
such Regulation S Global Note by the aggregate principal amount of the
beneficial interest in such U.S. Global Note to be so exchanged or transferred,
and to credit or cause to be credited to the account of the Person specified in
such instructions (who shall be the agent member of Euroclear or Cedel, or both,
as the case may be) a beneficial interest in such Regulation S Global Note equal
to the reduction in the principal amount of such U.S. Global Note.
(c) Regulation S Global Note to U.S. Global Note. If a holder
of a beneficial interest in the Regulation S Global Note wishes at any time to
exchange its interest in such Regulation S Global Note for an interest in the
U.S. Global Note, or to transfer its interest in such Regulation S Global Note
to a Person who wishes to take delivery thereof in the form of an interest in
such U.S. Global Note, such holder may, subject to the rules and procedures of
Euroclear or Cedel and DTC, as the case may be, and to the requirements set
forth in the following sentence, exchange or cause the exchange or transfer or
cause the transfer of such interest for an equivalent beneficial interest in
such U.S. Global Note. Upon receipt by the Trustee, as Transfer Agent, at its
office in The City of New York of (l) instructions given in accordance with the
procedures of Euroclear or Cedel and DTC,
33
as the case may be, from or on behalf of a beneficial owner of an interest in
the Regulation S Global Note directing the Trustee, as Transfer Agent, to credit
or cause to be credited a beneficial interest in the U.S. Global Note in an
amount equal to the beneficial interest in the Regulation S Global Note to be
exchanged or transferred, (2) a written order given in accordance with the
procedures of Euroclear or Cedel and DTC, as the case may be, containing
information regarding the account with DTC to be credited with such increase and
the name of such account, and (3) prior to or on the 40th day after the later of
the commencement of the offering of the Notes and the Closing Date (the
"Restricted Period"), a certificate in the form of Exhibit F given by the
holder of such beneficial interest and stating that the Person transferring such
interest in such Regulation S Global Note reasonably believes that the Person
acquiring such interest in such U.S. Global Note is a Qualified Institutional
Buyer (as defined in Rule 144A) and is obtaining such beneficial interest in a
transaction meeting the requirements of Rule 144A and any applicable securities
laws of any state of the United States or any other jurisdiction, the Trustee,
as Transfer Agent, shall promptly deliver (via DWAC) appropriate instructions to
DTC, its nominee, or the custodian for DTC, as the case may be, to reduce or
reflect on its records a reduction of the Regulation S Global Note by the
aggregate principal amount of the beneficial interest in such Regulation S
Global Note to be exchanged or transferred, and the Trustee, as Transfer Agent,
shall promptly deliver (via DWAC) appropriate instructions to DTC, its nominee,
or the custodian for DTC, as the case may be, concurrently with such reduction,
to increase or reflect on its records an increase of the principal amount of
such U.S. Global Note by the aggregate principal amount of the beneficial
interest in such Regulation S Global Note to be so exchanged or transferred, and
to credit or cause to be credited to the account of the Person specified in such
instructions a beneficial interest in such U.S. Global Note equal to the
reduction in the principal amount of such Regulation S Global Note. After the
expiration of the Restricted Period, the certification requirement set forth in
clause (3) of the second sentence of this Section 2.7(c)(iii) will no longer
apply to such transfers.
(d) Any beneficial interest in one of the Global Notes that is
transferred to a Person who takes delivery in the form of an interest in the
other Global Note will, upon transfer, cease to be an interest in such Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
(e) Other Exchanges. In the event that a Global
Note is exchanged for Definitive Notes in registered form
34
without interest coupons, pursuant to Section 2.6(b), or a Definitive Note in
registered form without interest coupons is exchanged for another such
Definitive Note in registered form without interest coupons, or a Definitive
Note is exchanged for a beneficial interest in a Global Note, such Notes may be
exchanged or transferred for one another only in accordance with such procedures
as are substantially consistent with the provisions of Sections 2.7(b) and (c)
above (including the certification requirements intended to ensure that such
exchanges or transfers comply with Rule 144, Rule 144A or Regulation S, as the
case may be) and as may be from time to time adopted by the Company and the
Trustee.
(f) Interests in Regulation S Global Note to be Held Through
Euroclear or Cedel. Prior to the expiration of the Restricted Period, beneficial
interests in the Regulation S Global Note may only be held by DTC through its
member participants who are agent members of Euroclear and Cedel, unless
delivery is made through the U.S. Global Note in accordance with the
certification requirements hereof.
(g) Private Placement Legend. Each Note issued hereunder
shall, upon issuance, bear the legend set forth herein and such legend shall not
be removed from such Note except as provided in the next sentence. The legend
required for a U.S. Note may be removed from a U.S. Note if there is delivered
to the Company and the Trustee such satisfactory evidence, which may include an
opinion of independent counsel licensed to practice law in the State of New
York, as may be reasonably required by the Company and the Trustee, that neither
such legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Note will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the direction of the Company, shall authenticate and
deliver in exchange for such Note another Note or Notes having an equal
aggregate principal amount that does not bear such legend. If such a legend
required for a U.S. Note has been removed from a U.S. Note as provided above, no
other Note issued in exchange for all or any part of such Note shall bear such
legend, unless the Company has reasonable cause to believe that such other Note
is a "restricted security" within the meaning of Rule 144 and instructs the
Trustee to cause a legend to appear thereon.
The Initial Notes shall bear the following legend (the
"Private Placement Legend") on the face thereof:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE OR OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST
OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,
35
TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS EXEMPT FROM,
OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1) REPRESENTS
THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS
ACQUIRING THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE
904 OF REGULATION S, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE
WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(k) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER)
AFTER THE LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR OF ANY
PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE COMPANY OR
ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY
BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION
DATE"), OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED
IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON RULE
144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT
WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY
AND THE TRUSTEE SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER (I) PURSUANT TO CLAUSE (D) OR (E) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE FOREGOING CASES,
TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM APPEARING ON
THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED
HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE
SECURITIES ACT.
36
After Separation, the Global Notes shall also bear the
following legend on the face thereof:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
REPRESENTATIVE OF DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT HEREON 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 SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.6 OF THE INDENTURE DATED
DECEMBER 3, 1998 PURSUANT TO WHICH THEY WERE ISSUED.
(h) General. By its acceptance of any Note bearing the Private
Placement Legend, each Holder of such a Note acknowledges the restrictions on
transfer of such Note set forth in this Indenture and in the Private Placement
Legend and agrees that it will transfer such Note 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 Note (including any transfers between or among Agent Members or
beneficial owners of interest in any Global Note) 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 2.6 or this Section
2.7. 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.
37
(i) Any Initial Notes which are presented to the Registrar for
exchange pursuant to the Exchange Offer shall be exchanged for Exchange Notes of
equal principal amount upon surrender to the Registrar of the Initial Notes to
be exchanged; provided, however, that the Initial Notes so surrendered for
exchange shall be duly endorsed and accompanied by a letter of transmittal or
written instrument of transfer in form satisfactory to the Company, the Trustee
and the Registrar duly executed by the Holder thereof or his attorney who shall
be duly authorized in writing to execute such document. Whenever any Initial
Notes are so surrendered for exchange, the Company shall execute, and upon
receipt of the Company Order provided for in Section 2.2, the Trustee shall
authenticate and deliver to the Holder the same aggregate principal amount of
Exchange Notes as those Initial Notes that have been surrendered.
(j) Definitive Notes shall be transferable only upon the
surrender of a Definitive Note for registration of transfer. When a Definitive
Note is presented to the Registrar or a co-registrar with a request to register
a transfer, the Registrar shall register the transfer as requested if its
requirements for such transfers are met. When Definitive Notes are presented to
the Registrar or a co-registrar with a request to exchange them for an equal
principal amount of Definitive Notes of other denominations, the Registrar shall
make the exchange as requested if the same requirements are met. To permit
registration of transfers and exchanges, the Company shall execute and the
Trustee shall authenticate Definitive Notes at the Registrar's or co-registrar's
request.
(k) The Company shall not be required to make, and the
Registrar need not register transfers or exchanges of, Definitive Notes selected
for redemption (except, in the case of Definitive Notes to be redeemed in part,
the portion thereof not to be redeemed) or any Definitive Notes for a period of
15 days before a selection of Definitive Notes to be redeemed.
(l) Prior to the due presentation for registration of transfer
of any Definitive Note, the Company, the Trustee, the Paying Agent, the
Registrar or any co-registrar may deem and treat the Person in whose name a
Definitive Note is registered as the absolute owner of such Definitive Note for
the purpose of receiving payment of principal, interest, Additional Amounts, if
any, or Liquidated Damages, if any, on such Definitive Note and for all other
purposes whatsoever, whether or not such Definitive Note is overdue, and none of
the Company, the Trustee, the Paying Agent, the Registrar or any co-registrar
shall be affected by notice to the contrary.
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(m) The Company may require payment of a sum sufficient to pay
all taxes, assessments or other governmental charges in connection with any
transfer or exchange pursuant to this Section 2.7 (other than in respect of the
Exchange Offer, except as otherwise provided in the Registration Rights
Agreement).
(n) All Notes issued upon any transfer or exchange pursuant to
the terms of this Indenture will evidence the same debt and will be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(o) Holders of Initial Notes (or holders of interests therein)
and prospective purchasers designated by such Holders (or holders of interests
therein) will have the right to obtain from the Company upon request by such
Holders (or holders of interests therein) or prospective purchasers, during any
period in which the Company is not subject to Section 13 or 15(d) of the
Exchange Act, or is exempt from reporting pursuant to 12g3-2(b) under the
Exchange Act, the information required by paragraph d(4)(i) of Rule 144A in
connection with any transfer or proposed transfer of such Notes.
SECTION 2.8 Replacement Notes. If a mutilated Definitive Note
is surrendered to the Registrar, if a mutilated Global Note is surrendered to
the Company or if the Holder of a Note claims that such Note has been lost,
destroyed or wrongfully taken, the Company shall issue and the Trustee shall
authenticate a replacement Note in such form as the Note being replaced if the
requirements of the Trustee, the Registrar and the Company are met. If required
by the Trustee, the Registrar or the Company, such Holder must provide an
indemnity bond or other indemnity, sufficient in the judgment of the Company,
the Registrar and the Trustee, to protect the Company, the Registrar, the
Trustee and any Agent from any loss which any of them may suffer if a Note is
replaced. The Company may charge such Holder for its reasonable, out-of-pocket
expenses in replacing a Note, including reasonable fees and expenses of counsel.
Every replacement Note is an additional obligation of the Company.
SECTION 2.9 Outstanding Notes. Notes outstanding at any time
are all the Notes that have been authenticated by the Trustee except those
cancelled by it, those delivered to it for cancellation, those reductions in the
Global Note effected in accordance with the provisions hereof and those
described in this Section as not outstanding. Subject to Section 2.10, a Note
does not cease to be outstanding because the Company or any of its Affiliates
holds the Note.
39
If a Note is replaced pursuant to Section 2.8 (other than a
mutilated Note surrendered for replacement), it ceases to be outstanding unless
the Trustee receives proof satisfactory to it that the replaced Note is held by
a bona fide purchaser. A mutilated Note ceases to be outstanding upon surrender
of such Note and replacement thereof pursuant to Section 2.8.
If the principal amount of any Note is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest, Additional
Amounts, if any and Liquidated Damages, if any, on it cease to accrue.
If on a Redemption Date or the Maturity Date the Paying Agent
holds cash in U.S. dollars or Government Securities sufficient to pay all of the
principal and interest due on the Notes payable on that date, then on and after
that date such Notes cease to be outstanding and interest, Additional Amounts,
if any, and Liquidated Damages, if any, on such Notes cease to accrue.
SECTION 2.10 Treasury Notes. In determining whether the
Holders of the required principal amount of Notes have concurred in any
direction, waiver or consent, Notes owned by the Company or 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
Notes that a Trust Officer of the Trustee actually knows are so owned shall be
disregarded.
The Company shall notify the Trustee, in writing, when it or
any of its Affiliates repurchases or otherwise acquires Notes of the aggregate
principal amount of such Notes so repurchased or otherwise acquired. The Trustee
may require an Officers' Certificate listing Notes owned by the Company, a
Subsidiary of the Company or an Affiliate of the Company.
SECTION 2.11 Temporary Notes. Until permanent Definitive Notes
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Definitive Notes upon receipt of a Company Order in the
form of an Officers' Certificate. The Officers' Certificate shall specify the
amount of temporary Definitive Notes to be authenticated and the date on which
the temporary Definitive Notes are to be authenticated. Temporary Definitive
Notes shall be substantially in the form of permanent Definitive Notes but may
have variations that the Company considers appropriate for temporary Definitive
Notes. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate upon receipt of a Company Order pursuant to Section 2.2
permanent Definitive Notes in exchange for temporary Definitive Notes.
40
SECTION 2.12 Cancellation. The Company at any time may deliver
Notes to the Trustee for cancellation. The Registrar and the Paying Agent shall
forward to the Trustee any Notes 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 and, at the written direction of the
Company, shall dispose of (subject to the record retention requirements of the
Exchange Act) all Notes surrendered for transfer, exchange, payment or
cancellation; provided, however, that the Trustee may, but shall not be required
to, destroy such cancelled Notes. Subject to Section 2.7, the Company may not
issue new Notes to replace Notes that it has paid or delivered to the Trustee
for cancellation. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption or satisfaction of the
Indebtedness represented by such Notes unless and until the same are surrendered
to the Trustee for cancellation pursuant to this Section 2.12.
SECTION 2.13 Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, it shall pay the defaulted interest, plus (to
the extent lawful) any interest payable on the defaulted interest, to the Holder
thereof on a subsequent special record date, which date shall be the fifteenth
day next preceding the date fixed by the Company for the payment of defaulted
interest. The Company shall notify the Trustee and Paying Agent in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment (a "Default Interest Payment Date"), and at the same
time the Company shall deposit with the Trustee or Paying Agent an amount of
money equal to the aggregate amount proposed to be paid in respect of such
defaulted interest or shall make arrangements satisfactory to the Trustee or
Paying Agent for such deposit prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons entitled
to such defaulted interest as in this Section 2.13; provided, however, that in
no event shall the Company deposit monies proposed to be paid in respect of
defaulted interest later than 11:00 a.m. New York City time on the proposed
Default Interest Payment Date with respect to defaulted interest to be paid on
the Note. At least 15 days before the subsequent special record date, the
Company shall mail to each Holder, with a copy to the Trustee, a notice that
states the subsequent special record date, the payment date and the amount of
defaulted interest, and interest payable on such defaulted interest, if any, to
be paid.
SECTION 2.14 CUSIP, ISIN and Common Code Numbers. The Company
in issuing the Notes may use a "CUSIP", "ISIN" or "Common Code" number, and if
so, the Trustee shall use the CUSIP, ISIN and Common Code number in notices of
redemption
41
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, ISIN and Common Code number printed in the notice or on the Notes,
and that reliance may be placed only on the other identification numbers printed
on the Notes. The Company shall promptly notify the Trustee of any change in any
CUSIP, ISIN or Common Code number.
SECTION 2.15 Deposit of Moneys. Prior to 11:00 a.m. New York
City time on each Interest Payment Date and Maturity Date, the Company shall
have deposited with the Paying Agent in immediately available funds money
sufficient to make cash payments, if any, due on such Interest Payment Date or
Maturity Date, as the case may be, on all Notes then outstanding. Such payments
shall be made by the Company in a timely manner which permits the Paying Agent
to remit payment to the Holders on such Interest Payment Date or Maturity Date,
as the case may be.
SECTION 2.16 Certain Matters Relating to Global Notes. (a)
Members of, or participants in, DTC ("Agent Members") shall have no rights under
this Indenture with respect to any Global Note held on their behalf by DTC or
the Trustee as its custodian, or under the Global Note, and DTC may be treated
by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Note 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 DTC or impair, as
between DTC and its Agent Members, the operation of customary practices
governing the exercise of the rights of a Holder of any Note.
(b) The Holder of any Global Note may grant proxies and
otherwise authorize any person, including DTC and its Agent Members and persons
that may hold interests through Agent Members, to take any action which a Holder
is entitled to take under this Indenture or the Notes.
SECTION 2.17 Separation of Warrants and Notes. The Notes and
Warrants will not be separately transferable until the Separation Date. The
"Separation Date" will be the earliest of (i) May 15, 1999, (ii) the
commencement of an exchange offer or the effectiveness of a Shelf Registration
Statement with respect to the Notes, (iii) the Exercisability Date (as defined
in the Warrant Agreement) and (iv) such other date as the Representatives will
determine in their sole discretion. The surrender of a Unit Certificate (as
defined in the Unit Agreement) for separate Warrant and Note certificates is
herein referred to as a "Separation" and the related Notes being referred to as
"Separated." Upon
42
Separation of the Warrants and the Notes, the Global Notes shall be transferred
to and deposited with the Trustee, as custodian for, and registered in the name
of DTC or its nominee, duly executed by the Company and countersigned by the
Trustee as provided herein.
ARTICLE III
REDEMPTION
SECTION 3.1 Optional Redemption. The Company may redeem all or
any portion of the Notes, upon the terms and at the redemption prices set forth
in each of the Notes. Any redemption pursuant to this Section 3.1 shall be made
pursuant to the provisions of this Article III.
SECTION 3.2 Notices to Trustee. If the Company elects to
redeem Initial Notes pursuant to Paragraphs 8 or 9 of such Notes or Exchange
Notes pursuant to Paragraphs 7 or 8 thereof, it shall notify the Trustee in
writing of the Redemption Date and the principal amount of Notes to be redeemed
at least 15 days prior to the giving of the notice contemplated by Section 3.4
(or such shorter period as the Trustee in its sole discretion shall determine).
The Company shall give notice of redemption as required under the relevant
paragraph of the Notes pursuant to which such Notes are being redeemed.
SECTION 3.3 Selection of Notes To Be Redeemed. If less than
all of the Notes are to be redeemed at any time, selection of such Notes for
redemption will be made by the Trustee in compliance with the requirements of
the principal securities exchange, if any, on which such Notes are listed, or if
such Notes are not so listed or such exchange prescribes no method of selection,
on a pro rata basis, by lot or by such other method as the Trustee in its sole
discretion shall deem fair and appropriate (and in such manner as complies with
applicable legal and exchange requirements); provided, however, that no Note of
$1,000 in aggregate principal amount or less shall be redeemed in part. In the
event of partial redemption by lot, the particular Notes to be redeemed shall be
selected, unless otherwise provided herein, not less than 30 nor more than 60
days prior to the Redemption Date by the Trustee from the outstanding Notes not
previously called for redemption.
SECTION 3.4 Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, the Company shall publish in a
leading newspaper having a general circulation in New York (which is expected to
be The Wall
43
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad) (and, if and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) or in the case of Definitive Notes, mail to Holders by
first-class mail, postage prepaid, at their respective addresses as they appear
on the registration books of the Registrar (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, publish in a newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort)). At the Company's
request made at least 45 days before the Redemption Date (or such shorter period
as the Trustee in its sole discretion shall determine), the Trustee shall give
the notice of redemption in the Company's name and at the Company's expense;
provided, however, that the Company shall deliver to the Trustee, an Officers'
Certificate requesting that the Trustee give such notice and setting forth the
information to be stated in such notice as provided in the following items. Each
notice for redemption shall identify the Notes to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Prices and the amount of
interest, if any, Additional Amounts, if any, and
Liquidated Damages, if any, to be paid;
(c) the name and address of the Paying Agent;
(d) that Notes called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price plus accrued and
unpaid interest, if any, Additional Amounts, if any, and Liquidated
Damages, if any;
(e) that, unless the Company defaults in making the redemption
payment, interest, Additional Amounts, if any, and Liquidated Damages,
if any, on Notes called for redemption cease to accrue on and after the
Redemption Date, and the only remaining right of the Holders of such
Notes is to receive payment of the Redemption Price upon surrender to
the Paying Agent of the Notes redeemed;
(f) (i) if any Global Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and that,
after the Redemption Date, interest, Additional Amounts, if any, and
Liquidated Damages, if any, shall cease to accrue on the portion
44
called for redemption, and upon surrender of such Global Note, the
Global Note with a notation on Schedule A thereof adjusting the
principal amount thereof to be equal to the unredeemed portion, will be
returned and (ii) if any Definitive Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed, and that,
after the Redemption Date, upon surrender of such Definitive Note, a
new Definitive Note or Notes in aggregate principal amount equal to the
unredeemed portion thereof will be issued in the name of the Holder
thereof, upon cancellation of the original Note;
(g) if fewer than all the Notes are to be redeemed, the
identification of the particular Notes (or portion thereof) to be
redeemed, as well as the aggregate principal amount of Notes to be
redeemed and the aggregate principal amount of Notes to be outstanding
after such partial redemption;
(h) the paragraph of the Notes pursuant to which
the Notes are to be redeemed; and
(i) the CUSIP, ISIN or Common Code number, and that no
representation is made as to the correctness or accuracy of the CUSIP,
ISIN or Common Code number, if any, listed in such notice or printed on
the Notes.
SECTION 3.5 Effect of Notice of Redemption. Once notice of
redemption is given in accordance with Section 3.4, Notes called for redemption
become due and payable on the Redemption Date and at the Redemption Price plus
accrued and unpaid interest, if any, Additional Amounts, if any, and Liquidated
Damages, if any. Upon surrender to the Trustee or Paying Agent, such Notes
called for redemption shall be paid at the Redemption Price (which shall include
accrued and unpaid interest thereon, if any, Additional Amounts, if any, and
Liquidated Damages, if any, to the Redemption Date), but installments of
interest, the maturity of which is on or prior to the Redemption Date, shall be
payable to Holders of record at the close of business on the relevant Record
Dates.
SECTION 3.6 Deposit of Redemption Price. Prior to 11:00 a.m.
New York City time on the Redemption Date, the Company shall deposit with the
Paying Agent cash in U.S. dollars sufficient to pay the Redemption Price plus
accrued and unpaid interest, if any, Additional Amounts, if any, and Liquidated
Damages, if any, of all Notes to be redeemed on that date. The Paying Agent
shall promptly return to the Company any cash in U.S. dollars so deposited which
is not required for that purpose upon the written request of the Company.
45
If the Company complies with the preceding paragraph, then,
unless the Company defaults in the payment of such Redemption Price plus accrued
and unpaid interest, if any, Additional Amounts, if any, and Liquidated Damages,
if any, interest, Additional Amounts and Liquidated Damages on the Notes to be
redeemed will cease to accrue on and after the applicable Redemption Date,
whether or not such Notes are presented for payment. With respect to Definitive
Notes, if a Definitive Note is redeemed on or after an interest Record Date but
on or prior to the related Interest Payment Date, then any accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages, if any, shall be
paid to the Person in whose name such Note was registered at the close of
business on such Record Date. If any Note called for redemption shall not be so
paid upon surrender for redemption because of the failure of the Company to
comply with the preceding paragraph, interest, Additional Amounts, if any, and
Liquidated Damages, if any, shall be paid on the unpaid principal, from the
redemption date until such principal is paid, and to the extent lawful on any
interest not paid on such unpaid principal, in each case at the rate provided in
the Notes and in Section 4.1.
SECTION 3.7 Notes Redeemed in Part. Upon surrender and
cancellation of a Definitive Note that is redeemed in part, the Company shall
execute and the Trustee shall authenticate for the Holder (at the Company's
expense) a new Definitive Note equal in principal amount to the unredeemed
portion of the Definitive Note surrendered and cancelled; provided, however,
that each such Definitive Note shall be in a principal amount at maturity of
$1,000 or an integral multiple thereof. Upon surrender of a Global Note that is
redeemed in part, the Paying Agent shall forward such Global Note to the Trustee
who shall make a notation on Schedule A thereof to reduce the principal amount
of such Global Note to an amount equal to the unredeemed portion of the Global
Note surrendered; provided, however, that each such Global Note shall be in a
principal amount at maturity of $1,000 or an integral multiple thereof.
ARTICLE IV
COVENANTS
SECTION 4.1 Payment of Notes. (a) The Company shall pay the
principal, premium, if any, interest, Additional Amounts, if any, and Liquidated
Damages, if any, on the Notes in the manner provided in such Notes and this
Indenture. An installment of principal of or interest on the Notes shall be
considered paid on the date it is due if the Trustee or Paying Agent holds at
11:00 a.m. New York City time on that date money deposited by the Company in
46
immediately available funds and designated for, and sufficient to pay the
installment in full and is not prohibited from paying such money to the Holders
pursuant to the terms of this Indenture.
(b) The Company shall pay, to the extent such payments are
lawful, interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue principal and on overdue installments of interest
(without regard to any applicable grace periods), on any Additional Amounts, and
on any Liquidated Damages, from time to time on demand at the rate borne by the
Notes plus 1.5% per annum. Interest will be computed on the basis of a 360-day
year comprised of twelve 30-day months.
SECTION 4.2 Maintenance of Office or Agency. The Company shall
maintain the office or agency (which office may be an office of the Trustee or
an affiliate of the Trustee, Registrar or co-Registrar) required under Section
2.3 where Notes may be surrendered for registration of transfer or for exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company shall give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at 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 11.2. The Company hereby initially
designates the office of CT Corporation System, located at 0000 Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, as its office or agency outside The Netherlands as
required under Section 2.3 hereof. If Definitive Notes are issued, and if the
Notes are listed on the Luxembourg Stock Exchange, the Company will appoint
Kredietbank S.A. Luxembourgeoise, or such other Person located in Luxembourg and
reasonably acceptable to the Trustee, as an additional paying and transfer
agent.
SECTION 4.3 Limitation on Restricted Payments. (a) The Company
will not, and will not permit any Restricted Subsidiary to, directly or
indirectly, (i) declare or pay any dividend or make any distribution on account
of any Equity Interest in the Company or any Restricted Subsidiary to the
holders thereof, including any dividend or distribution payable in connection
with any merger or consolidation (other than (A) dividends or distributions
payable solely in Equity Interests (other than Redeemable Stock) of the Company,
(B) dividends or distributions made only to the Company or a Restricted
Subsidiary and (C) pro rata dividends or distributions on Capital Stock of a
Restricted Subsidiary held by Persons other than the Company or a Restricted
Subsidiary), (ii) purchase, redeem, retire or otherwise
47
acquire for value any Equity Interests of the Company or any Equity Interests of
any Restricted Subsidiary (other than any such Equity Interests owned by the
Company or any Restricted Subsidiary), (iii) make any principal payment or
redeem, repurchase, defease, or otherwise acquire or retire for value, in each
case, prior to any scheduled repayment, or maturity, any Indebtedness of the
Company that is subordinated in right of payment to the Notes, or (iv) make any
Investment, other than a Permitted Investment, in any Person (all such payments
or any other actions described in clauses (i) through (iv) above being
collectively referred to as "Restricted Payments") unless, at the time of, and
after giving effect to, the proposed Restricted Payment:
(A) no Default or Event of Default shall have occurred and be
continuing;
(B) the Company could Incur at least $1.00 of additional Indebtedness
under Section 4.4(a); and
(C) the aggregate amount expended for all Restricted Payments (the
amount so expended, if other than in cash, to be determined in good faith by the
Board of Directors, whose determination shall be conclusive and evidenced by a
Board Resolution) after the Issue Date is less than the sum of (1) Cumulative
Consolidated Cash Flow minus 150% of Cumulative Consolidated Fixed Charges plus
(2) 100% of the aggregate Net Cash Proceeds received by the Company after the
Issue Date as a capital contribution or from the issuance and sale of its Equity
Interests (other than Redeemable Stock, and excluding any Ordinary Shares issued
in connection with the Offering or the Recapitalization, as defined in the
Offering Memorandum) to a Person (other than a Restricted Subsidiary of the
Company), plus (3) the aggregate amount by which Indebtedness (other than any
Indebtedness subordinated in right of payment to the Notes) of the Company or
any Restricted Subsidiary is reduced on the Company's balance sheet upon the
conversion or exchange (other than by a Restricted Subsidiary of the Company)
subsequent to the Issue Date into Equity Interests (other than Redeemable Stock
and 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) and
plus (4) without duplication of any amount included in the calculation of
Consolidated Net Income, in the case of repayment of, or return of capital in
respect of, any Investment constituting a Restricted Payment made after the
Issue Date, an amount equal to the lesser of the repayment of, the return of
capital with respect to, such Investment and the cost of such Investment, in
either case less the cost of the disposition of such Investment and net of
taxes.
48
(b) The foregoing provisions in Section 4.3(a)
shall not prohibit:
(i) the payment of any dividend within 60 days after the date
of declaration thereof if, at said date of declaration, such payment
would comply with the provisions of the Indenture; (ii) the redemption,
repurchase, defeasance or other acquisition or retirement for value of
Indebtedness that is subordinated in right of payment to the Notes
including premium, if any, and accrued and unpaid interest, with the
proceeds of, or in exchange for, Indebtedness Incurred under clause
(iii) of paragraph Section 4.4(b); (iii) the repurchase, redemption or
other acquisition of Equity Interests in the Company in exchange for,
or out of the Net Cash Proceeds of, a substantially concurrent capital
contribution or offering of Equity Interests (other than Redeemable
Stock) in the Company to any Person (other than a Restricted
Subsidiary); (iv) the repurchase, redemption or other acquisition of
Indebtedness of the Company which is subordinated in right of payment
to the Notes in exchange for, or out of the Net Cash Proceeds of, a
substantially concurrent capital contribution or offering of Equity
Interests (other than Redeemable Stock) in the Company to any Person
(other than a Restricted Subsidiary); (v) the purchase of any
subordinated Indebtedness at a purchase price not greater than 101% of
the principal amount thereof following a Change of Control pursuant to
an obligation in the instruments governing such subordinated
Indebtedness to purchase or redeem such subordinated Indebtedness as a
result of such Change of Control; provided, however, that no such
purchase or redemption shall be permitted until the Company has
completely discharged its obligations described under Section 4.15
(including the purchase of all Notes tendered for purchase by holders)
arising as a result of such Change of Control; (vi) repurchases of
Warrants in accordance with Section 5.3 of the Warrant Agreement; (vii)
repurchases of Existing Warrants in accordance with Section 5.3 of the
First Offering Warrant Agreement; and (viii) repurchases of Equity
Interests of the Company from employees of the Company or any of its
Restricted Subsidiaries deemed to occur upon exercise of stock options
if such Equity Interests represent a portion of the exercise price of
such options; provided that any payments made pursuant to this clause
(viii) may not exceed in aggregate $500,000 in any fiscal year of the
Company;
provided that in the case of clauses (ii) through (viii), no Default or Event of
Default shall have occurred and be
49
continuing or occur as a consequence of the actions or
payments set forth therein.
Each Restricted Payment permitted pursuant to this Section 4.3(b) (other than
the Restricted Payment referred to in clause (ii) hereof) and the Net Cash
Proceeds from any capital contribution or issuance of Equity Interests referred
to in clauses (iii) and (iv), shall be included in calculating whether the
conditions of clause (C) of Section 4.3(a) have been met with respect to any
subsequent Restricted Payments. In the event the proceeds of an issuance of
Equity Interests (other than Redeemable Stock) of the Company are used for the
redemption, repurchase or other acquisition of the Notes, then the Net Cash
Proceeds of such issuance shall be included in clause (C) of the Section 4.3(a)
only to the extent such proceeds are not used for such redemption, repurchase or
other acquisition of the Notes.
(c) Not later than the date of making any Restricted Payment,
the Company shall deliver to the Trustee an Officers' Certificate stating that
such Restricted Payment is permitted and setting forth the basis upon which the
calculations required by this Section 4.3 were computed, which calculations may
be based upon the Company's latest available financial statements. The Trustee
shall have no duty to recompute or recalculate or verify the accuracy of the
information set forth in such Officers' Certificate.
SECTION 4.4 Limitation on Indebtedness. (a) The Company will
not, and will not permit any of its Restricted Subsidiaries to, Incur any
Indebtedness; provided, however, that if no Default or Event of Default shall
have occurred and be continuing at the time, or would occur as a consequence, of
the Incurrence of any such Indebtedness, the Company may Incur Indebtedness if
immediately thereafter the ratio of (i) the aggregate principal amount of
Indebtedness of the Company and its Restricted Subsidiaries on a consolidated
basis outstanding as of the Transaction Date to (ii) the pro forma Consolidated
Cash Flow (the "Indebtedness to Consolidated Cash Flow Ratio") for the preceding
two full fiscal quarters multiplied by two, determined on a pro forma basis as
if any such Indebtedness had been Incurred and the proceeds thereof had been
applied at the beginning of such two fiscal quarters, would be greater than zero
and less than or equal to 5.0 to 1.
(b) Notwithstanding the foregoing, (except for Indebtedness under
subsection (vii) below) the Company and (except for Indebtedness under
subsections (v), (vi) and (x) (A) below) any Restricted Subsidiary may Incur
each and all of the following:
50
(i) Indebtedness (other than Acquired Indebtedness) Incurred
to finance the cost (provided that such Indebtedness is Incurred at any time on
or before, or within 90 days following, the incurrence of such cost) (including
the cost of design, development, construction, acquisition, installation or
integration) of assets used in the Permitted Business or Equity Interests of (A)
a Restricted Subsidiary, that owns principally such assets, from a Person other
than the Company or a Restricted Subsidiary of the Company or (B) any Person
that is principally engaged in the Permitted Business, that would become a
Restricted Subsidiary and owns principally such assets; provided that (x) any
such Indebtedness of a Restricted Subsidiary must be Incurred under one or more
Credit Facilities, under one or more Capitalized Leases or from the vendor of
the assets, property or services acquired with the proceeds of such
Indebtedness, (y) the amount of such Indebtedness of a Restricted Subsidiary may
not exceed the Fair Market Value of the assets so acquired and (z) the amount of
such Indebtedness of the Company, Incurred to acquire Equity Interests under
clauses (A) and (B) above, may not exceed the Fair Market Value of such assets
of any Restricted Subsidiary or any such Person so acquired;
(ii) Indebtedness of any Restricted Subsidiary to the Company
or Indebtedness of the Company or any Restricted Subsidiary to any other
Restricted Subsidiary; provided that any subsequent issuance or transfer of any
Capital Stock which results in any such Restricted Subsidiary ceasing to be a
Restricted Subsidiary or any subsequent transfer of such Indebtedness not
permitted by this clause (ii) (other than to the Company or another Restricted
Subsidiary) shall be deemed, in each case, to constitute the Incurrence of such
Indebtedness; and provided, further, that Indebtedness of the Company to a
Restricted Subsidiary must be unsecured and subordinated in right of payment to
the Notes;
(iii) Indebtedness issued in exchange for, or the net proceeds
of which are used to refinance or refund, then outstanding Indebtedness of the
Company or a Restricted Subsidiary, other than Indebtedness Incurred under this
Section 4.4(b) (ii), (iv), (vii), (viii) and (xii), and any refinancings thereof
in an amount not to exceed the amount so refinanced or refunded (plus premiums,
accrued interest, and reasonable fees and expenses); provided that such new
Indebtedness shall only be permitted under this Section 4.4(b) (iii) if (A) in
case the Notes are refinanced in part or the Indebtedness to be refinanced or
refunded is pari passu with the Notes, such new Indebtedness, by its terms or by
the terms of any agreement or instrument pursuant to which such new Indebtedness
is issued or remains outstanding, is expressly made pari passu with, or
subordinate in right of
51
payment to, the remaining Notes, (B) in case the Indebtedness to be refinanced
is subordinated in right of payment to the Notes, such new Indebtedness, by its
terms or by the terms of any agreement or instrument pursuant to which such new
Indebtedness is issued or remains outstanding, is expressly made subordinate in
right of payment to the Notes at least to the extent that the Indebtedness to be
refinanced or refunded is subordinated to the Notes, (C) the Stated Maturity of
such new Indebtedness, determined as of the date of Incurrence of such new
Indebtedness, is no earlier than the Stated Maturity of the Indebtedness being
refinanced or refunded and (D) such new Indebtedness, determined as of the date
of Incurrence of such new Indebtedness, has a Weighted Average Life to Maturity
which is not less than the remaining Weighted Average Life to Maturity of the
Indebtedness to be refinanced or refunded; and provided, further, that in no
event may Indebtedness of the Company be refinanced or refunded by means of any
Indebtedness of any Restricted Subsidiary pursuant to this Section 4.4(b) (iii);
(iv) Indebtedness (A) in respect of performance, surety or
appeal bonds or letters of credit supporting Trade Payables, in each case
provided in the ordinary course of business, (B) under Currency Agreements and
Interest Rate Agreements; provided that such agreements do not increase the
Indebtedness of the obligor outstanding at any time other than as a result of
fluctuations in foreign currency exchange rates or interest rates or by reason
of fees, indemnities and compensation payable thereunder, and (C) arising from
agreements providing for indemnification, adjustment of purchase price or
similar obligations, or from Guarantees or letters of credit, surety bonds or
performance bonds securing any obligations of the Company or any of its
Restricted Subsidiaries pursuant to such agreements, in any case Incurred in
connection with the disposition of any business, assets or Restricted Subsidiary
of the Company (other than Guarantees of Indebtedness Incurred for the purpose
of financing such acquisition by the Person acquiring all or any portion of such
business, assets or Restricted Subsidiary), in a principal amount not to exceed
the gross proceeds actually received by the Company or any Restricted Subsidiary
in connection with such disposition;
(v) Indebtedness, to the extent that the net proceeds thereof
are promptly (A) used to repurchase Notes tendered in a Change of Control Offer
or (B) deposited to defease all of the Notes as described in Sections 8.1 and
8.2;
(vi) Indebtedness of the Company represented by the Notes;
52
(vii) Indebtedness represented by a Guarantee of the Notes and
Guarantees of other Indebtedness of the Company by a Restricted Subsidiary, in
each case permitted by and made in accordance with Section 4.17;
(viii) Indebtedness under one or more Credit Facilities, in an
aggregate principal amount at any one time outstanding not to exceed the greater
of (x) NLG 70.0 million and (y) 80.0% of Eligible Accounts Receivable at any one
time outstanding, subject to any permanent reductions required by any other
terms of the Indenture;
(ix) Acquired Indebtedness; provided that the aggregate amount
of such Acquired Indebtedness (other than the Indebtedness Incurred under one or
more Credit Facilities, under one or more Capitalized Leases or from the vendor
of assets, property or services acquired with the proceeds of such Indebtedness)
of the Person 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 does not
exceed the Fair Market Value of the plant, property and equipment (excluding
property, plant and equipment securing any of the Credit Facilities or vendor
financings or subject to any Capital Leases referred to in this clause (ix)) of
any Restricted Subsidiary so acquired;
(x) Indebtedness of (A) the Company not to exceed, at any one
time outstanding, 2.00 times the Net Cash Proceeds from (1) the issuance and
sale, other than to a Subsidiary, of Equity Interests (other than Redeemable
Stock and excluding any Ordinary Shares issued in connection with the
Recapitalization) of the Company and (2) capital contributions made in the
Company (other than by a Subsidiary) less, in each case, the amount of such
proceeds used to make Restricted Payments as provided in Section 4.3(a) (C)(2)
or Section 4.3(b) (iii) or (iv) and (B) the Company or Acquired Indebtedness of
a Restricted Subsidiary (provided that any such Indebtedness of such Restricted
Subsidiary must be incurred under one or more Credit Facilities, under one or
more Capitalized Leases or from the vendor of the assets, property or services
acquired with the proceeds of such Indebtedness) not to exceed, at any one time
outstanding, the fair market value of any Telecommunications Assets acquired by
the Company or such Restricted Subsidiary in exchange for Equity Interests of
the Company issued after the Issue Date; provided, however, that in determining
the fair market value of any such Telecommunications Assets so acquired, if the
estimated fair market value of such Telecommunications Assets exceeds (x) $2.0
million (as estimated in good faith by the Board of Directors), then the fair
market value of such Telecommunications Assets will be determined by a majority
of the Board of Directors of the
53
Company, which determination will be evidenced by a resolution thereof, and (y)
$10.0 million (as estimated in good faith by the Board of Directors), then the
Company will deliver the Trustee a written appraisal as to the fair market value
of such Telecommunications Assets prepared by an internationally recognized
investment banking or public accounting firm (or, if no such investment banking
or public accounting firm is qualified to prepare such an appraisal, by an
internationally recognized appraisal firm); and provided, further, that such
Indebtedness (other than the Indebtedness Incurred under one or more Credit
Facilities, under one or more Capitalized Leases or from the vendor of assets,
property or services acquired with the proceeds of such Indebtedness) does not
mature prior to the Stated Maturity of the Notes and the Weighted Average Life
to Maturity of such Indebtedness is longer than that of the Notes;
(xi) Indebtedness outstanding as of the Issue Date; and
(xii) Indebtedness (in addition to Indebtedness permitted
under clauses (i) through (x) above) in an aggregate principal amount
outstanding at any one time not to exceed the greater of (A) NLG 100 million and
(B) an amount equal to 5% of the Company's consolidated net tangible assets as
of such date.
(c) For purposes of determining any particular amount of Indebtedness
under Section 4.4(b), 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
4.17. For purposes of determining compliance with Section 4.4, (A) in the event
that an item of Indebtedness meets the criteria of more than one of the types of
Indebtedness described above, the Company, in its sole discretion, shall
classify (or from time to time reclassify) such item of Indebtedness and only be
required to include the amount and type of such Indebtedness in one of such
clauses and (B) the principal amount of Indebtedness issued at a price that is
less than the principal amount thereof shall be equal to the amount of the
liability in respect thereof determined in conformity with U.S. GAAP.
SECTION 4.5 Corporate Existence. Except as otherwise permitted
by Article V, the Company shall do or cause to be done all things necessary to
preserve and keep in full force and effect its corporate existence and the
corporate, partnership, limited liability or other existence of each of its
Subsidiaries in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and the rights
(charter and
54
statutory) of the Company and each of its Subsidiaries; provided, however, that
the Company shall not be required to preserve any such right, or the corporate,
partnership, limited liability or other existence of any 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 each of
its Subsidiaries, taken as a whole, and that the loss thereof is not, and will
not be, adverse in any material respect to the Holders.
SECTION 4.6 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, (i) all material taxes, assessments and governmental charges
levied or imposed upon it or any of its Subsidiaries or upon the income, profits
or property of it or any of its Subsidiaries and (ii) 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 it or any of its
Subsidiaries; 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 4.7 Maintenance of Properties and Insurance. (a) The
Company shall cause all material properties owned by or leased by it or any of
its Subsidiaries useful and necessary to the conduct of its business or the
business of any of its Subsidiaries to be improved or maintained and kept in
normal condition, repair and working order and shall cause to be made all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in its judgment may be necessary, so that the business carried on in
connection therewith may be properly conducted at all times; provided, however,
that nothing in this Section 4.7 shall prevent the Company or any of its
Subsidiaries 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 any
Subsidiary of the Company concerned, or of an officer (or other agent employed
by the Company or of any of its Subsidiaries) of the Company or any of its
Subsidiaries having managerial responsibility for any such property, desirable
in the conduct of the business of the Company or any Subsidiary of the Company,
and if such discontinuance or disposal is not adverse in any material respect to
the Holders.
55
(b) To the extent available at commercially reasonable rates,
the Company shall maintain, and shall cause its 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.
SECTION 4.8 Compliance Certificate; Notice of Default. (a) The
Company shall deliver to the Trustee, within 90 days after the close of each
fiscal year, an Officers' Certificate stating that a review of the activities of
the Company and its Subsidiaries during the preceding fiscal year has been made
under the supervision of the signing Officers with a view to determining whether
it has kept, observed, performed and fulfilled, and has caused each of its
Subsidiaries to keep, observe, perform and fulfill its obligations under this
Indenture and the Escrow Agreement and further stating, as to each such Officer
signing such certificate, that, to the best of his knowledge, the Company during
such preceding fiscal year has kept, observed, performed and fulfilled, and has
caused each of its Subsidiaries to keep, observe, perform and fulfill each and
every such covenant contained in this Indenture and the Escrow Agreement and no
Default occurred during such year and at the date of such certificate there is
no Default which has occurred and is continuing or, if such signers do know of
such Default, the certificate shall describe its status, with particularity and
that, to the best of his or her knowledge, no event has occurred and remains by
reason of which payments on the account of the principal of or interest, if any,
Additional Amounts, if any, or Liquidated Damages, if any, on the Notes is
prohibited or if such event has occurred, a description of the event and what
action each is taking or proposes to take with respect thereto. The Officers'
Certificate shall also notify the Trustee should the Company elect to change the
manner in which it fixes its fiscal year end. The Company shall notify the
Trustee of any default or defaults in the performance of any covenants or
agreements under this Indenture or the Escrow Agreement within five Business
Days of becoming aware of any such default.
(b) The annual financial statements delivered pursuant to Section 4.10
shall include, so long as not contrary to the then current recommendations of
the American Institute of Certified Public Accountants, a written report of the
Company's independent accountants (who shall be a firm of established
international reputation) that in conducting their audit of such financial
statements nothing has come to their attention that would lead them to believe
that the Company has violated any provisions of Articles IV, V or VI of this
Indenture or, if any such violation has occurred, specifying the nature and
period of existence thereof, it
56
being understood that such accountants shall not be liable directly or
indirectly to any Person for any failure to obtain knowledge of any such
violation.
(b) The Company shall deliver to the Trustee, within 5
Business Days, upon any officer becoming aware of any Default or any default or
event of default under any document, instrument or agreement representing
Indebtedness of the Company, an Officers' Certificate specifying the Default or
such default or event of default and describing its status with particularity.
SECTION 4.9 Compliance with Laws. The Company shall comply,
and shall cause each of its Subsidiaries to comply, with all applicable
statutes, rules, regulations, orders of the relevant jurisdiction in which they
are incorporated and/or in which they carry on business, all political
subdivisions thereof, and of any relevant governmental regulatory authority, in
respect of the conduct of their respective businesses and the ownership of their
respective properties, except for such noncompliances as would not in the
aggregate have a material adverse effect on the financial condition or results
of operations of the Company and its Subsidiaries taken as a whole.
SECTION 4.10 Reports. (a) The Company will file on a timely
basis with the SEC, to the extent such filings are accepted by the SEC and
whether or not the Company has a class of securities registered under the
Exchange Act, (i) all annual and quarterly financial statements and other
financial information that would be required to be contained in a filing with
the Commission on Forms 20-F and 10-Q if the Company were required to file such
Forms (which financial statements shall be prepared in accordance with U.S.
GAAP), including a "Management's Discussion and Analysis of Financial Condition
and Results of Operations" and, with respect to the annual financial
information, a report thereon by the Company's certified independent accountants
and (ii) all current reports that would be required to be filed with the
Commission on Form 8-K if the Company were required to file such reports. Such
quarterly financial information shall be filed with the Commission within 45
days following the end of each fiscal quarter of the Company, and such annual
financial information shall be furnished within 90 days following the end of
each fiscal year of the Company. Such annual financial information shall include
the geographic segment financial information required to be disclosed by the
Company under Item 101(d) of Regulation S-K under the Securities Act. The
Company shall also (a) file with the Trustee, and provide to each holder,
without cost to such holder, copies of such reports and documents within 15 days
after the date on which the Company files such reports and documents with the
Commission or the date on
which the Company would be required to file such reports and documents if the
Company were so required, and (b) if filing such reports and documents with the
Commission is not accepted by the Commission or is prohibited under the Exchange
Act, to supply at the Company's cost copies of such reports and documents to any
prospective holder promptly upon request. In addition, for so long as the Notes
remain outstanding and the Company is not subject to the reporting requirements
of Section 13 or 15(d) of the Exchange Act nor exempt from reporting under Rule
12g3-2(b) of the Exchange Act, the Company shall furnish to the Holders and to
securities analysts and prospective investors, upon their request, any
information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act and, to any beneficial holder of Notes, information of the type
that would be filed with the Commission pursuant to the foregoing provisions,
upon the request of any such holder, and if, and so long as the Notes are listed
on the Luxembourg Stock Exchange and the rules of such exchange shall so
require, copies of all such reports and documents described above will be
deposited with the Company's listing agent in Luxembourg.
(b) Such reports shall be delivered to the Registrar and the
Registrar will mail them at the Company's expense to the Holders at their
addresses appearing in the register of Notes maintained by the Registrar.
(c) Upon qualification of this Indenture with the TIA, the
Company shall also comply with the provisions of TIA Section 314(a).
SECTION 4.11 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
that would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest on the Notes 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 will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and permit
the execution of every such power as though no such law had been enacted.
SECTION 4.12 Limitation on Transactions with Shareholders and
Affiliates. (a) The Company will not, and will not permit any Restricted
Subsidiary to, directly or indirectly, enter into, renew or extend any
transaction or series of transactions (including, without limitation, the
58
purchase, sale, lease or exchange of property or assets, or the rendering of any
service) with any direct or indirect holder (or any Affiliate of such holder) of
5% or more of any class of Capital Stock of the Company or with any Affiliate of
the Company or any Restricted Subsidiary, unless:
(i) such transaction or series of transactions is on terms
that are no less favorable to the Company or such Restricted Subsidiary
than could reasonably be obtained in a comparable arm's-length
transaction with a Person that is not such a holder or Affiliate;
(ii) if such transaction or series of transactions involves
aggregate consideration in excess of $2.0 million, then the Company
shall deliver to the Trustee a resolution set forth in an Officers'
Certificate adopted by a majority of the Board of Directors, including
a majority of the independent, disinterested directors, approving such
transaction or series of transactions and certifying that such
transaction or series of transactions comply with Section 4.12(a)(i);
and
(iii) if such transaction or series of transactions involves
aggregate consideration in excess of $5.0 million, then the Company
will deliver to the Trustee a written opinion as to the fairness to the
Company or such Restricted Subsidiary of such transaction or series of
transactions from a financial point of view from an internationally
recognized investment banking firm (or, if an investment banking firm
is generally not qualified to give such an opinion, by an
internationally recognized appraisal firm or accounting firm).
(b) The foregoing limitation does not limit and will not apply
to (i) any transaction between the Company and any of its Restricted
Subsidiaries or between Restricted Subsidiaries; (ii) the payment of reasonable
and customary regular fees to directors of the Company who are not employees of
the Company; and (iii) payment of dividends or other distributions in respect of
Equity Interests of the Company or any Restricted Subsidiary permitted by
Section 4.3.
SECTION 4.13 Limitation on Dividend and Other Payment
Restrictions Affecting Restricted Subsidiaries. (a) The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create or
otherwise cause or suffer to exist or become effective any consensual
encumbrance or restriction of any kind on the ability of any Restricted
Subsidiary to:
59
(i) pay dividends or make any other distributions permitted
by applicable law on any Equity Interests of such Restricted Subsidiary
owned by the Company or any other Restricted Subsidiary,
(ii) pay any Indebtedness owed to the Company or any other
Restricted Subsidiary,
(iii) make loans or advances to the Company or any other
Restricted Subsidiary, or
(iv) transfer any of its property or assets to the Company or
any other Restricted Subsidiary.
(b) The foregoing provisions shall not prohibit any
encumbrances or restrictions:
(i) existing under or by reason of any agreement in effect on
the Issue Date, and any amendments, supplements, extensions,
refinancings, renewals or replacements of such agreements; provided
that the encumbrances and restrictions in any such amendments,
supplements, extensions, refinancings, renewals or replacements are no
more restrictive than those encumbrances or restrictions that are then
in effect and that are being amended, supplemented, extended,
refinanced, renewed or replaced;
(ii) existing under or by reason of applicable law;
(iii) existing with respect to any Restricted Subsidiary
acquired by the Company or any Restricted Subsidiary after the Issue
Date, or the property or assets of such Restricted Subsidiary, and
existing at the time of such acquisition and not incurred in
contemplation thereof, which encumbrances or restrictions are not
applicable to any Person or the property or assets of any Person other
than such Person or the property or assets of such Person so acquired,
and any amendments, supplements, extensions, refinancings, renewals or
replacements of agreements containing such encumbrances or
restrictions; provided that the encumbrances and restrictions in any
such amendments, supplements, extensions, refinancings, renewals or
replacements are no more restrictive than those encumbrances or
restrictions that are then in effect and that are being amended,
supplemented, extended, refinanced, renewed or replaced;
(iv) in the case of Section 4.13(a)(iv), (A) that restrict in
a customary manner the subletting, assignment or transfer of any
property or asset that is, or is subject to, a lease, purchase mortgage
obligation,
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license, conveyance or contract or similar property or asset, (B)
existing by virtue of any transfer of, agreement to transfer, option or
right with respect to, or Lien on, any property or assets of the
Company or any Restricted Subsidiary not otherwise prohibited by this
Indenture or (C) arising or agreed to in the ordinary course of
business, not relating to any Indebtedness, and that do not,
individually or in the aggregate, materially detract from the value of
property or assets of the Company or any Restricted Subsidiary to the
Company or any Restricted Subsidiary;
(v) with respect to a Restricted Subsidiary and imposed
pursuant to an agreement that has been entered into for the sale or
disposition of all or substantially all of the Capital Stock in, or
property and assets of, such Restricted Subsidiary; provided that such
restriction shall terminate if such transaction is abandoned or if such
transaction is not consummated within six months of the date such
agreement was entered into; or
(vi) contained in the terms of any Indebtedness or any
agreement pursuant to which such Indebtedness was issued if (A) the
encumbrance or restriction applies only in the event of a payment
default or a default with respect to a financial covenant contained in
such Indebtedness or agreement, (B) the encumbrance or restriction is
not materially more disadvantageous to the holders of the Notes than is
customary in comparable financings (as determined by the Board of
Directors) and (C) the Board of Directors determines that any such
encumbrance or restriction will not materially affect the Company's
ability to make principal or interest payments on the Notes.
Nothing contained in this Section 4.13 shall prevent the Company or any
Restricted Subsidiary from creating, incurring, assuming or suffering to exist
any Liens otherwise permitted in Section 4.14 that limit the right of the debtor
to dispose of the assets securing such Indebtedness.
SECTION 4.14 Limitation on Liens. The Company will not, and
will not permit any Restricted Subsidiary to, directly or indirectly, create,
incur, assume or suffer to exist any Lien (other than Permitted Liens) on any
asset or property of the Company or any Restricted Subsidiary without making
effective provisions for all of the Notes and all other amounts due under the
Indenture to be directly secured equally and ratably with (or, if the obligation
or liability to be secured by such Lien is subordinated in right of payment to
the Notes, prior to) the obligation or liability secured by such Lien.
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SECTION 4.15 Change of Control. (a) Upon the occurrence of a
Change of Control, the Company will make an offer to purchase all or any part
(equal to $1,000 aggregate principal amount and integral multiple thereof) of
the Notes pursuant to the offer described below (the "Change of Control Offer")
at a price in cash (the "Change of Control Payment") equal to 101% of the
aggregate principal amount thereof plus accrued and unpaid interest, thereon to
the date of repurchase, plus Additional Amounts, if any, and Liquidated Damages,
if any, to the date of repurchase (and in the case of Definitive Notes, subject
to the right of Holders of record on the relevant record date to receive
interest and Liquidated Damages, if any, due on the relevant interest payment
date and Additional Amounts, if any, in respect thereof). Within 30 days
following any Change of Control, the Company will publish notice of such in a
leading newspaper having a general circulation in New York (which is expected to
be The Wall Street Journal) and in Amsterdam (which is expected to be Het
Financieele Dagblad) (and, if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such Stock Exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or, in the case of Definitive Notes, mail a notice to
each Holder postage prepaid (and if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such Stock Exchange shall so require,
will publish notice in a newspaper having a general circulation in Luxembourg
(which is expected to be the Luxemburger Wort)), with a copy to the Trustee,
with the following information: (i) a Change of Control Offer is being made
pursuant to this Section 4.15 and all Notes properly tendered pursuant to such
Change of Control Offer will be accepted for payment; (ii) the purchase price
and the purchase date, which will be no earlier than 30 days nor later than 60
days from the date such notice is published, or where relevant, mailed, except
as may be otherwise required by applicable law (the "Change of Control Payment
Date"); (iii) any Note not properly tendered will remain outstanding and
continue to accrue interest and Liquidated Damages, if any; (iv) unless the
Company defaults in the payment of the Change of Control Payment, all Notes
accepted for payment pursuant to the Change of Control Offer will cease to
accrue interest, as the case may be, and to accrue Liquidated Damages, if any,
on the Change of Control Payment Date; (v) Holders electing to have any Notes
purchased pursuant to a Change of Control Offer will be required to surrender
the Notes, with the form entitled "Option of Holder to Elect Purchase" on the
reverse of the Notes completed, to the Paying Agent and at the address specified
in the notice prior to the close of business on the third Business Day preceding
the Change of Control Payment Date; (vi) Holders will be entitled to withdraw
their
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tendered Notes and their election to require the Company to purchase such Notes;
provided, however, that the Paying Agent receives, not later than the close of
business on the last day of the offer period, a facsimile transmission or letter
setting forth the name of the Holder, the principal amount of Notes tendered for
purchase, and a statement that such Holder is withdrawing his tendered Notes and
his election to have such Notes purchased; and (vii) that Holders whose Notes
are being purchased only in part will be issued new Notes equal in principal
amount to the unpurchased portion of the principal amount of the Notes
surrendered, which unpurchased portion must be equal to $1,000 in principal
amount or an integral multiple thereof.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
and will comply with the applicable laws of any non-U.S. jurisdiction in which a
Change of Control Offer is made, in each case, to the extent such laws or
regulations are applicable in connection with the repurchase of the Notes
pursuant to a Change of Control Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions of this Indenture,
the Company will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations contained in this Indenture
by virtue thereof. The provisions relating to the Company's obligation to make
an offer to repurchase the Notes as a result of a Change of Control may be
waived or modified with the written consent of the Holders of a majority in
principal amount of the Notes.
(b) On the Change of Control Payment Date, the Company will,
to the extent permitted by law, (i) accept for payment all Notes or portions
thereof properly tendered pursuant to the Change of Control Offer, (ii) deposit
with the Paying Agent an amount equal to the aggregate Change of Control Payment
in respect of all Notes or portions thereof so tendered and (iii) deliver, or
cause to be delivered, to the Trustee for cancellation the Notes so accepted
together with an Officers' Certificate stating that such Notes or portions
thereof have been tendered to and purchased by the Company. The Paying Agent
will promptly either (x) pay to the Holder against presentation and surrender
(or, in the case of partial payment, endorsement) of the Global Notes or (y) in
the case of Definitive Notes, mail to each Holder of Notes postage prepaid, the
Change of Control Payment for such Notes, and the Trustee will promptly
authenticate and deliver to the Holder of the Global Notes a new Global Note or
Notes or, in the case of Definitive Notes, mail to each Holder a new Definitive
Note, as applicable, equal in principal amount to any unpurchased portion of the
Notes surrendered, if any; provided, however, that each new Definitive Note will
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be in a principal amount of $1,000 or an integral multiple thereof. The Company
will publicly announce the results of the Change of Control Offer on or as soon
as practicable after the Change of Control Payment Date.
SECTION 4.16 Limitation on Asset Sales. (a) The Company will
not, and will not permit any Restricted Subsidiary to, make any Asset Sale
unless (i) the Company or the 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 disposed of and (ii) at least 80% of the
consideration received for such Asset Sale consists of cash or Cash Equivalents
or Replacement Assets or the assumption of Indebtedness which ranks pari passu
in right of payment with the Notes.
(b) The Company shall, or shall cause the relevant Restricted
Subsidiary to, apply the Net Cash Proceeds from an Asset Sale within 270 days of
the receipt thereof to (A) permanently repay unsubordinated Indebtedness of the
Company or Indebtedness of any Restricted Subsidiary, in each case owing to a
Person other than the Company or any of its Restricted Subsidiaries, (B) invest
in Replacement Assets, or (C) in any combination of repayment, prepayment, and
reinvestment permitted by the foregoing clauses (A) and (B). Any Net Proceeds
from the Asset Sale that are not invested as provided and within the time period
set forth in the first sentence of this Section 4.16(b) will be deemed to
constitute "Excess Proceeds."
If at any time the aggregate amount of Excess Proceeds exceeds
$5.0 million, the Company shall, within 30 Business Days thereafter, make an
offer to all Holders of Notes (an "Asset Sale Offer") to purchase on a pro rata
basis the maximum principal amount of Notes, that is an integral multiple of
$1,000 that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the outstanding principal amount thereof,
plus accrued and unpaid interest thereon, plus Additional Amounts, if any, and
Liquidated Damages, if any, to the date fixed for the closing of such offer
(and, in the case of Definitive Notes, subject to the right of a Holder of
record on the relevant record date to receive interest and Liquidated Damages,
if any, due on the relevant interest payment date and Additional Amounts, if
any, in respect thereof), in accordance with the procedures set forth in this
Indenture. The Company will commence an Asset Sale Offer with respect to Excess
Proceeds within thirty Business Days after the date that Excess Proceeds exceeds
$5.0 million by publishing or, where relevant, mailing the notice required
pursuant to the terms of the Indenture, with a copy to the Trustee. To the
extent that the aggregate amount of Notes tendered pursuant to an Asset Sale
Offer is less than the Excess Proceeds, subject to
64
applicable law, the Company may use any remaining Excess Proceeds for general
corporate purposes. Upon completion of any such Asset Sale Offer, the amount of
Excess Proceeds shall be reset at zero.
The Asset Sale Offer shall remain open for a period of 20
Business Days following its commencement and no longer, except to the extent
that a longer period is required by applicable law (the "Offer Period"). No
later than five Business Days after the termination of the Offer Period (the
"Purchase Date"), the Company shall purchase the maximum principal amount of
Notes that may be purchased with such Excess Proceeds (or such pro rata portion)
(which maximum principal amount of Notes shall be the "Offer Amount") or, if
less than the Offer Amount has been tendered, all Notes tendered in response to
the Asset Sale Offer.
If the Purchase Date is on or after an interest Record Date
and on or before the related Interest Payment Date, any accrued and unpaid
interest will be paid in the case of a Global Note, to the Holder thereof or, in
the case of a Definitive Note, to the Person in whose name such Definitive Note
is registered at the close of business on such Record Date, and no additional
interest will be payable to Holders with respect to Notes tendered pursuant to
the Asset Sale Offer.
At least 30 days but not more than 60 days before a Purchase
Date, the Company shall publish in a leading newspaper having a general
circulation in New York (which is expected to be The Wall Street Journal) and in
Amsterdam (which is expected to be Het Financieele Dagblad ) (and, if and so
long as the Notes are listed on the Luxembourg Stock Exchange and the rules of
such Stock Exchange shall so require, a newspaper having a general circulation
in Luxembourg (which is expected to be the Luxemburger Wort)) or, in the case of
Definitive Notes, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar
with a copy of such notice to the Trustee (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, publish in a newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort)). The notice shall
contain all instructions and materials (or instructions on how to obtain
instructions and materials) necessary to enable such Holders to tender Notes
pursuant to the Asset Sale Offer. The Asset Sale Offer shall be made to all
Holders. The notice, which shall govern the terms of the Asset Sale Offer, shall
state:
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(A) that the Asset Sale Offer is being made pursuant to this
Section 4.16 and the length of time the Asset Sale Offer shall remain
open;
(B) the Offer Amount (including the amount of accrued and
unpaid interest, if any), the purchase price and the Purchase Date;
(C) that any Note or portion thereof not tendered or accepted
for payment shall continue to accrue interest, Additional Amounts, if
any, and Liquidated Damages, if any, in accordance with the terms
thereof;
(D) that, unless the Company defaults in making payment
therefor any Note or portion thereof accepted for payment pursuant to
the Asset Sale Offer shall cease to accrue interest, Additional
Amounts, if any, and Liquidated Damages, if any, after the Purchase
Date;
(E) (1) if any Global Note is being purchased in part, the
portion of the principal amount of such Note to be purchased and that,
after the Purchase Date, interest, Additional Amounts, if any, and
Liquidated Damages, if any, shall cease to accrue on the portion to be
purchased, and upon surrender of such Global Note, the Global Note with
a notation on Schedule A thereof adjusting the principal amount thereof
to be equal to the unpurchased portion, will be returned and (2) if a
Definitive Note may be purchased in part, that, after the Purchase
Date, upon surrender of such Definitive Note, a new Definitive Note or
Notes in aggregate principal amount equal to the unpurchased portion
thereof will be issued in the name of the Holder thereof, upon
cancellation of the original Note;
(F) that Holders electing to have a Note or portion thereof
purchased pursuant to any Asset Sale Offer shall be required to
surrender the Note, with the form entitled "Option of Holder to Elect
Purchase" on the reverse of the Note completed, to the Company, a
depositary, if appointed by the Company, or a Paying Agent at the
address specified in the notice at least three Business Days before the
Purchase Date and must complete any form letter of transmittal proposed
by the Company and acceptable to the Trustee and the Paying Agent;
(G) that, subject to applicable law, Holders shall be entitled
to withdraw their election if the Company, depositary or Paying Agent,
as the case may be, receives, not later than the second Business Day
before the Purchase Date, a facsimile transmission or letter setting
forth the name of the Holder, the principal
66
amount of the Note or portion thereof the Holder delivered for
purchase, the Note certificate number and a statement that such Holder
is withdrawing his election to have the Note or portion thereof
purchased;
(H) that, if the aggregate principal amount of Notes tendered
by Holders exceeds the Offer Amount, the selection of such Notes for
purchase will be made by the Trustee in compliance with the
requirements of the principal securities exchange, if any, on which
such Notes are listed, or if such Notes are not so listed or such
exchange prescribes no method of selection, subject to applicable law,
on a pro rata basis by lot or by such other method as the Trustee in
its sole discretion shall deem fair and appropriate (and in such manner
as complies with applicable legal and exchange requirements); provided,
however, that no Notes of $1,000 or less shall be purchased in part;
provided further, that, subject to applicable law, in the event of
partial purchase by lot, the particular Notes to be purchased shall be
selected, unless otherwise provided herein, by the Registrar or Trustee
from the outstanding Notes not previously called for purchase; and
(I) the instructions that Holders must follow to tender their
Notes.
On or before the Purchase Date, the Company shall, to the
extent lawful, accept for payment, on a pro rata basis to the extent necessary,
the Offer Amount of Notes or portions thereof tendered pursuant to the Asset
Sale Offer, or if less than the Offer Amount has been tendered, all Notes or
portions thereof tendered, and deliver to the Trustee an Officers' Certificate
stating that such Notes or portions thereof were accepted for payment by the
Company in accordance with the terms of this Section 4.16. On the Purchase Date,
the Paying Agent shall promptly cause the principal amount of any Global Note so
tendered to be adjusted on Schedule A thereof to be equal to any unpurchased
portion of such Global Note which unpurchased portion must be equal to $1,000 in
principal amount or an integral multiple thereof, and shall promptly
authenticate and mail or deliver to each tendering Holder of a Definitive Note,
a new Definitive Note or Notes equal in principal amount to any unpurchased
portion of the Definitive Note surrendered which unpurchased portion must be
equal to $1,000 in principal amount or an integral multiple thereof. DTC, the
Paying Agent or the Company, as the case may be, shall promptly (but in any case
not later than five Business Days after the Purchase Date) mail or deliver to
each tendering Holder an amount equal to the Offer Amount of the Notes tendered
by such Holder and accepted by the Company for purchase. Any
67
Notes not so accepted shall be promptly mailed or delivered by or on behalf of
the Company to the Holder thereof. The Company shall publicly announce the
results of the Asset Sale Offer not later than the second Business Day following
the Purchase Date.
The Company will comply with the requirements of Rule 14e-1
under the Exchange Act and any other securities laws and regulations thereunder
and will comply with the applicable laws of any non-U.S. jurisdiction in which
an Asset Sale Offer is made, in each case, to the extent such laws or
regulations are applicable in connection with the repurchase of the Notes
pursuant to an Asset Sale Offer. To the extent that the provisions of any
securities laws or regulations conflict with the provisions hereunder, the
Company will comply with the applicable securities laws and regulations and
shall not be deemed to have breached its obligations described in this Indenture
by virtue thereof.
SECTION 4.17 Limitation on Issuance of Guarantees of
Indebtedness by Restricted Subsidiaries. (a) The Company shall not permit any
Restricted Subsidiary, directly or indirectly, to guarantee, assume or in any
other manner become liable with respect to any Indebtedness of the Company
unless (i) such Restricted Subsidiary simultaneously executes and delivers a
supplemental indenture to this Indenture providing for a Guarantee of all of the
Company's obligations under the Notes and this Indenture on terms substantially
similar to the guarantee of such Indebtedness, except that if such Indebtedness
is by its express terms subordinated in right of payment to the Notes, any such
assumption, Guarantee or other liability of such Restricted Subsidiary with
respect to such Indebtedness shall be subordinated in right of payment to such
Restricted Subsidiary's assumption, Guarantee or other liability with respect to
the Notes substantially to the same extent as such Indebtedness is subordinated
to the Notes 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 Guarantee; provided that any Restricted Subsidiary may
guarantee Indebtedness of the Company under a Credit Facility if such
Indebtedness is Incurred in accordance with Section 4.4.
(b) Notwithstanding the foregoing Section 4.17(a), any
Guarantee of all of the Company's obligations under the Notes and this Indenture
by a Restricted Subsidiary may provide by its terms that it will 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 Company's and each Restricted
68
Subsidiary's Equity Interests in, or all or substantially all of the assets of,
such Restricted Subsidiary (which sale, exchange or transfer is not prohibited
by this Indenture) or (ii) the release or discharge of the guarantee which
resulted in the creation of such Guarantee, except a discharge or release by or
as a result of payment under such guarantee.
SECTION 4.18 Business of the Company; Restriction on Transfers
of Existing Business. The Company will not, and will not permit any Restricted
Subsidiary to, be principally engaged in any business or activity other than a
Permitted Business. In addition, the Company and any Restricted Subsidiary will
not be permitted to, directly or indirectly, transfer to any Unrestricted
Subsidiary (i) any of the licenses, permits or authorizations used in the
Permitted Business of the Company and any Restricted Subsidiary or (ii) any
material portion of the "property and equipment" (as such term is used in the
Company's consolidated financial statements) of the Company or any Restricted
Subsidiary used in the licensed service areas of the Company and any Restricted
Subsidiary.
SECTION 4.19 Limitation on the Issuance and Sale of Capital
Stock of Restricted Subsidiaries. The Company will not, and will not permit any
Restricted Subsidiary, directly or indirectly, to issue, transfer, convey, sell,
lease or otherwise dispose of any shares of Capital Stock (including options,
warrants or other rights to purchase shares of such Capital Stock) of such
Restricted Subsidiary or any other Restricted Subsidiary to any Person (other
than (i) to the Company or a Wholly Owned Restricted Subsidiary, (ii) issuances
of director's qualifying shares or sales to foreign nationals of shares of
Capital Stock of foreign Restricted Subsidiaries, in each case, to the extent
required by applicable law and (iii) Strategic Minority Capital Stock Issues),
unless (A) immediately after giving effect to such issuance, transfer,
conveyance, sale, lease or other disposition, such Restricted Subsidiary would
no longer constitute a Restricted Subsidiary and (B) any Investment in such
Person remaining after giving effect to such issuance, transfer, conveyance,
sale, lease or other disposition would have been permitted to be made under
Section 4.3 if made on the date of such issuance, transfer, conveyance, sale,
lease or other disposition (valued as provided in the definition of "Investment"
in Section 1.1).
SECTION 4.20 Additional Amounts. At least 10 days prior to the
first date on which payment of principal, premium, if any, or interest on the
Notes is to be made, and at least 10 days prior to any subsequent such date if
there has been any change with respect to the matters set forth in the Officers'
Certificate described in this Section 4.20, the Company will furnish the Trustee
and the Paying Agent, if
69
other than the Trustee, with an Officers' Certificate instructing the Trustee
and the Paying Agent whether such payment of principal, premium, if any, or
interest on the Notes (whether or not in the form of Definitive Notes) shall be
made to the Holders without withholding for or on account of any present or
future tax, duty, assessment or other governmental charges of whatever nature
(collectively "Taxes") imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, then such Officers' Certificate shall specify the amount,
if any, required to be withheld on such payments to such Holders and the Company
will pay to the Trustee or the Paying Agent the additional amounts pursuant to
paragraph 3 of the Initial Notes and paragraph 2 of the Exchange Notes, as
applicable (the "Additional Amounts") and upon request shall provide the Trustee
with documentation satisfactory to the Trustee evidencing the payment of such
Additional Amounts. Copies of such documentation shall be made available to the
Holders upon request. The Company shall indemnify the Trustee and the Paying
Agent for, and hold them harmless against, any loss, liability or expense
incurred without negligence or bad faith on their part arising out of or in
connection with actions taken or omitted by any of them in reliance on any
Officers' Certificate furnished to them pursuant to this Section 4.20.
SECTION 4.21 Payment of Non-Income Taxes and Similar Charges.
The Company will pay any present or future stamp, court or documentary taxes, or
any other excise or property taxes, charges or similar levies which arise in any
jurisdiction from the execution, delivery or registration of the Notes or any
other document or instrument referred to therein, or the receipt of any payments
with respect to the Notes, excluding any such taxes, charges or similar levies
imposed by any jurisdiction outside of The Netherlands, the United States of
America, or any jurisdiction in which a Paying Agent is located, other than
those resulting from, or required to be paid in connection with, the enforcement
of the Notes or any other such document or instrument following the occurrence
of any Event of Default with respect to the Notes.
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ARTICLE V
SUCCESSOR CORPORATION
SECTION 5.1 Consolidation, Merger, and Sale of Assets. The
Company will not consolidate with, merge with or into, or sell, convey,
transfer, lease or otherwise dispose of all or substantially all of its property
and assets (as an entirety or substantially an entirety in one transaction or in
a series of related transactions) to, any Person or permit any Person to merge
with or into the Company and the Company will not permit any of its Restricted
Subsidiaries to enter into any such transaction or series of transactions if
such transaction or series of transactions, in the aggregate, would result in
the sale, assignment, conveyance, transfer, lease or other disposition of all or
substantially all of the properties and assets of the Company or the Company and
its Restricted Subsidiaries, taken as a whole, to any other Person or Persons,
unless: (i) the Company will be the continuing Person, or the Person (if other
than the Company) (the "Surviving Entity") formed by such consolidation or into
which the Company is merged or that acquired or leased such property and assets
of the Company will be a corporation organized and validly existing under the
laws of The Netherlands, Germany, France, Belgium, the United Kingdom or the
United States of America, any state thereof or the District of Columbia and
shall expressly assume, by a supplemental indenture, executed and delivered to
the Trustee, all of the obligations of the Company with respect to the Notes and
under the Indenture, the Escrow Agreement and the Registration Rights Agreement;
(ii) immediately after giving effect to such transaction, no Default or Event of
Default shall have occurred and be continuing; (iii) immediately after giving
effect to such transaction on a pro forma basis, the Company, or any Person
becoming the successor obligor of the Notes, shall have a Consolidated Net Worth
equal to or greater than the Consolidated Net Worth of the Company immediately
prior to such transaction; (iv) immediately after giving effect to such
transaction on a pro forma basis the Company, or any Person becoming the
successor obligor of the Notes, as the case may be, (A) prior to the third
anniversary of the Issue Date, would have an Indebtedness to Consolidated Cash
Flow Ratio no greater than such ratio immediately prior to such transaction or
(B) on or after the third anniversary of the Issue Date, could Incur at least
$1.00 of Indebtedness under Section 4.4(a); (v) the Company delivers to the
Trustee an Officers' Certificate (attaching the arithmetic computations to
demonstrate compliance with clauses (iii) and (iv)) and an Opinion of Counsel,
in each case stating that such consolidation, merger or transfer and such
supplemental indenture complies with the Indenture and (vi) the Company shall
have delivered to the Trustee an opinion of tax counsel reasonably acceptable to
71
the Trustee stating that (A) Holders will not recognize income, gain or loss for
U.S. federal or Netherlands income tax purposes as a result of such transaction
and (B) no taxes on income (including taxable capital gains) will be payable
under the tax laws of the Relevant Taxing Jurisdiction by a Holder who is or who
is deemed to be a non-resident of the Relevant Taxing Jurisdiction in respect of
the acquisition, ownership or disposition of the Notes, including the receipt of
principal of, premium and interest paid pursuant to such Notes.
SECTION 5.2 Successor Corporation Substituted. Upon any such
consolidation, merger, assignment, conveyance, lease, transfer or other
disposition in accordance with Section 5.1, the Successor Company will succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such Successor Company
had been named as the Company herein, and thereafter (except in the case of a
sale, assignment, transfer, lease, conveyance or other disposition) the
predecessor corporation will be relieved of all further obligations and
covenants under this Indenture and the Notes.
ARTICLE VI
DEFAULT AND REMEDIES
SECTION 6.1 Events of Default. Wherever used herein with
respect to any series of the Notes, "Event of Default" means any one of the
following events which shall have occurred and be continuing:
(a) default for 30 days or more in the payment when due of
interest on the Notes or Additional Amounts, if any, or Liquidated Damages, if
any, with respect to the Notes;
(b) default in the payment of principal of (or premium, if
any, on) any Note when the same becomes due and payable at maturity, upon
acceleration, redemption or otherwise;
(c) default in the payment of principal or interest on Notes
required to be purchased pursuant to an Asset Sale Offer as described under
Section 4.16 or pursuant to a Change of Control Offer as described under Section
4.15;
(d) failure to perform or comply with the provisions described
in Article V;
(e) default in the performance of or breach of any other
covenant or agreement of the Company in this Indenture
72
or the Escrow Agreement or under the Notes and such default or breach continues
for a period of 30 consecutive days after written notice by the Trustee or the
holders of 25% or more in aggregate principal amount of the Notes;
(f) a default occurs on any other Indebtedness of the Company
or any Restricted Subsidiary if either (x) such default is a failure to pay
principal of such Indebtedness when due after any applicable grace period and
the principal amount of such Indebtedness is in excess of $5.0 million or (y) as
a result of such default, the maturity of such Indebtedness has been accelerated
prior to its scheduled maturity and such default has not been cured within the
shorter of (i) 60 days and (ii) the applicable grace period, and such
acceleration has not been rescinded, and the principal amount of such
Indebtedness together with the principal amount of any other Indebtedness of the
Company and its Restricted Subsidiaries that is in default as to principal, or
the maturity of which has been accelerated, aggregates $5.0 million or more;
(g) failure to pay final judgments and orders against the
Company or any Restricted Subsidiary (not covered by insurance) aggregating in
excess of $5.0 million (treating any deductibles, self-insurance or retention as
not so covered), which final judgments remain unpaid, undischarged and unstayed
for a period in excess of 30 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid, discharged or stayed to exceed $5.0 million;
(h) a court having jurisdiction in the premises enters a
decree or order for (A) relief in respect of the Company or any of its
Significant Subsidiaries in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, (B) appointment of a
receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Subsidiaries or for all or
substantially all of the property and assets of the Company or any of its
Significant Subsidiaries or (C) the winding up or liquidation of the affairs of
the Company or any of its Significant Subsidiaries and, in each case, such
decree or order shall remain unstayed and in effect for a period of 30
consecutive days;
(i) the Company or any of its Significant Subsidiaries (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by
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a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar
official of the Company or any of its Significant Subsidiaries or for all or
substantially all of the property and assets of the Company or any of its
Significant Subsidiaries or (C) effects any general assignment for the benefit
of creditors; or
(j) the Company challenges the Lien on the Escrow Collateral
under the Escrow Agreement prior to such time as the Escrow Collateral is to be
released to the Company, or the Escrow Collateral shall become subject to any
Lien other than the Lien under the Escrow Agreement.
SECTION 6.2 Acceleration. If an Event of Default (other than
an Event of Default specified in Sections 6.1 (h) or (i)) occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Notes, then outstanding, by written notice to the Company, may
declare the principal of, premium, if any, interest and other monetary
obligations (including Additional Amounts, if any, and Liquidated Damages, if
any) on all the then outstanding Notes to be immediately due and payable. Upon
such a declaration, such principal of, premium, if any, interest and other
monetary obligations on the Notes shall be immediately due and payable. In the
event of a declaration of acceleration because an Event of Default set forth in
Section 6.1 (f) above has occurred and is continuing, such declaration of
acceleration shall be automatically rescinded and annulled if the event of
default triggering such Event of Default pursuant to Section 6.1 (f) shall be
remedied or cured by the Company and/or the relevant Restricted Subsidiaries or
waived by the holders of the relevant Indebtedness within 60 days after the
declaration of acceleration with respect thereto. If an Event of Default
specified in Sections 6.1 (h) or (i) above occurs, the principal of, premium, if
any, accrued interest and other monetary obligations on the Notes then
outstanding shall ipso facto become and be immediately due and payable without
any declaration or other act on the part of the Trustee or any Holder.
The Trustee shall have no obligation to accelerate the Notes
if in the best judgment of the Trustee acceleration is not in the best interest
of the Holders of such Notes.
SECTION 6.3 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, premium, if any,
interest, Additional Amounts, if any, or Liquidated Damages, if any, on the
Notes or to enforce the performance of any provision of the Notes or this
Indenture.
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SECTION 6.4 The Trustee May Enforce Claims Without Possession
of Securities. All rights of action and claims under this Indenture or the Notes
may be prosecuted and enforced by the Trustee without the possession of any of
the Notes or the production thereof in any proceeding relating thereto.
SECTION 6.5 Rights and Remedies Cumulative. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Notes in Section 2.8, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Notes is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent or subsequent
assertion or employment of any other appropriate right or remedy.
SECTION 6.6 Delay or Omission Not Waiver. No delay or omission
of the Trustee or of any Holder of any Note to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders of Notes may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders of Notes.
SECTION 6.7 Waiver of Past Defaults. Subject to Sections 6.10
and 9.2, at any time after a declaration of acceleration with respect to the
Notes as described in Section 6.1, the Holders of at least a majority in
principal amount of the outstanding Notes by written notice to the Company and
to the Trustee, may waive all past defaults and rescind and annul a declaration
of acceleration and its consequences if (i) all existing Events of Default,
other than the nonpayment of the principal of, premium, if any, interest and
other monetary obligations on the Notes that have become due solely by such
declaration of acceleration, have been cured or waived and (ii) the rescission
would not conflict with any judgment or decree of a court of competent
jurisdiction. Such waiver shall not excuse a continuing Event of Default in the
payment of interest, premium, if any, principal, Additional Amounts, if any, or
Liquidated Damages, if any, on such Note held by a non-consenting Holder, or in
respect of a covenant or a provision which cannot be amended or modified without
the consent of all Holders. In the event of any Event of Default specified in
Section 6.1(f) above, such Event of Default and all consequences thereof
(including, without limitation, any acceleration or resulting
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payment default) shall be annulled, waived and rescinded, automatically and
without any action by the Trustee or the Holders of the Notes, if within 60 days
after such Event of Default arose (x) the Indebtedness or guarantee that is the
basis for such Event of Default has been discharged, or (y) the holders thereof
have rescinded or waived the acceleration, notice or action (as the case may be)
giving rise to such Event of Default, or (z) if the default that is the basis
for such Event of Default has been cured. 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.
When a Default or Event of Default is waived, it is cured and ceases.
SECTION 6.8 Control by Majority. Subject to Section 2.11, the
Holders of not less than a majority in principal amount of the outstanding Notes
may, by written notice to the Trustee, 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. Subject to Section 7.1, however, the Trustee
may refuse to follow any direction that conflicts with any law or this Indenture
that the Trustee determines may be unduly prejudicial to the rights of another
Holder of Notes, 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.
SECTION 6.9 Limitation on Suits. A Holder of Notes may not
pursue any remedy with respect to this Indenture or the Notes unless:
(i) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(ii) the Holder or Holders of at least 25% in principal amount
of the outstanding Notes make a written request to the Trustee to
pursue the remedy;
(iii) such Holder or Holders offer and, if requested, provide
to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense;
(iv) the Trustee does not comply with the request within 30
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
(v) during such 30-day period the Holder or Holders of a
majority in principal amount of the outstanding Notes do not give the
Trustee a direction which, in the
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opinion of the Trustee, is inconsistent with the
request.
A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain a preference or priority over such other Holder.
SECTION 6.10 Rights of Holders To Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of principal of, premium, if any, interest, Additional
Amounts, if any and Liquidated Damages, if any, on a Note, on or after the
respective due dates expressed in such Note, or to bring suit for the
enforcement of any such payment on or after such respective dates, shall not be
impaired or affected without the consent of such Holder.
SECTION 6.11 Collection Suit by Trustee. If an Event of
Default in payment of principal, premium, if any, interest, Additional Amounts,
if any or Liquidated Damages, if any, specified in Section 6.1(a) or (b) 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
Notes for the whole amount of principal and accrued interest remaining unpaid,
together with interest on overdue 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 Notes and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 7.7.
SECTION 6.12 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, accountants and experts) and the Holders
allowed in any judicial proceedings relating to the Company, its creditors or
its property or other obligor on the Notes, its creditors and 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
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agent and counsel, and any other
amounts due the Trustee under
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Section 7.7. To the extent that the payment of any such compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a Lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties which the Holders of the Notes may be
entitled to receive in such proceeding whether in liquidation or under any plan
of reorganization or arrangement or otherwise.
SECTION 6.13 Priorities. If the Trustee collects any money or
property pursuant to this Article VI, it shall pay out the money or property in
the following order:
First: to the Trustee, the Agents and their agents
and attorneys for amounts due under Section 7.7,
including payment of all compensation, expense and
liabilities incurred, and all advances made, by the
Trustee and the costs and expenses of collection;
Second: to Holders for amounts due and unpaid on the Notes for
principal, premium, if any, interest, Additional Amounts, if any and
Liquidated Damages, if any, ratably, without preference or priority of
any kind, according to the amounts due and payable on the Notes for
principal, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, respectively; and
Third: to the Company or any other obligor on the
Notes, as their interests may appear, or as a court of
competent jurisdiction may direct.
The Trustee, upon prior notice to the Company, may fix a
record date and payment date for any payment to Holders pursuant to this Section
6.13; provided that the failure to give any such notice shall not affect the
establishment of such record date or payment date for Holders pursuant to this
Section 6.13.
SECTION 6.14 Restoration of Rights and Remedies. If the
Trustee or any Holder of any Note has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has ben discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case, subject to any determination in such
proceeding, the Company, the Trustee and the Holders of Notes shall be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the
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Trustee and the Holders of Notes shall continue as though no such proceeding had
been instituted.
SECTION 6.15 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 6.15
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.10, or a suit by a Holder or Holders of more than 10% in principal amount of
the outstanding Notes.
SECTION 6.16 Compliance Certificate; Notices of Default. The
Company is required to deliver to the Trustee annually a statement, in the form
of an Officers' Certificate, regarding compliance with this Indenture, and the
Company is required, within five Business Days, upon becoming aware of any
Default or Event of Default or any default under any document, instrument or
agreement representing Indebtedness of the Company, to deliver to the Trustee a
statement, in the form of an Officers' Certificate, specifying such Default or
Event of Default.
ARTICLE VII
TRUSTEE
SECTION 7.1 Duties of Trustee. (a) If an Event of Default
actually known to a Trust Officer of the Trustee 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
his or her own affairs. Subject to such provisions, the Trustee will be under no
obligation to exercise any of its rights or powers under this Indenture at the
request of any of the Holders of Notes, unless they shall have offered to the
Trustee security and indemnity satisfactory to it against any loss, liability or
expense.
(b) Except during the continuance of an Event of Default
actually known to the Trustee:
(i) The Trustee and the Agents will perform only those duties
as are specifically set forth herein and no
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others and no implied covenants or obligations shall be read into this
Indenture against the Trustee or the Agents.
(ii) In the absence of bad faith on their part, the Trustee
and the Agents may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions and such other documents delivered to them
pursuant to Section 11.4 hereof furnished to the Trustee and conforming
to the requirements of this Indenture. However, in the case of any such
certificates or opinions which by any provision hereof are required to
be furnished to the Trustee, the Trustee shall examine the certificates
and opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of subsection (b)
of this Section 7.1.
(ii) Neither the Trustee nor Agent shall be liable for any
error of judgment made in good faith by a Trust Officer of such Trustee
or Agent, unless it is proved that the Trustee or such Agent was
negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.8.
(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 an indemnity 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) Whether or not therein expressly so provided, every
provision of this Indenture that in any way relates to the Trustee is subject to
subsections (a), (b), (c) and (d) of this Section 7.1.
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(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Any provision hereof relating to the conduct or affecting
the liability of or affording protection to the Trustee shall be subject to the
provisions of this Section 7.1 and, upon qualification of this Indenture under
the TIA, the TIA.
SECTION 7.2 Rights of Trustee. Subject to Section 7.1:
(a) The Trustee and each Agent may rely conclusively on and
shall be protected from acting or refraining from acting based upon any
document believed by them to be genuine and to have been signed or
presented by the proper person. Neither the Trustee nor any Agent shall
be bound to make any investigation into the facts or matters stated in
any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent order, approval, appraisal, bond, debenture,
note, coupon, security or other paper or document, but the Trustee or
its Agent, as the case may be, in its discretion, may make reasonable
further inquiry or investigation into such facts or matters stated in
such document and if the Trustee or its Agent as the case may be, shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, at
reasonable times during normal business hours, personally or by agent
or attorney. The Trustee shall not be deemed to have notice or any
knowledge of any matter (including without limitation Defaults or
Events of Default) unless a Trust Officer assigned to and working in
the Trustee's Corporate Trust Administration has actual knowledge
thereof or unless written notice thereof is received by the Trustee,
attention: Corporate Trust Administration and such notice references
the Notes generally, the Company or this Indenture;
(b) Any request, direction, order or demand of the Company
mentioned herein shall be sufficiently evidenced by an Officers'
Certificate or Company Order and any resolution of the Board of
Directors of the Company, as the case may be, may be sufficiently
evidenced by a Board Resolution;
(c) Before the Trustee acts or refrains from acting, it may
require an Officers' Certificate or an
81
Opinion of Counsel or both, which shall conform to the provisions of
Sections 11.4 and 11.5. Neither the Trustee nor any Agent shall be
liable for any action it takes or omits to take in good faith in
reliance on such certificate or opinion.
(d) The Trustee and any Agent may act through their attorneys
and agents and shall not be responsible for the misconduct or
negligence of any agent (other than an agent who is an employee of the
Trustee or such Agent) appointed with due care.
(e) 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 conferred upon it by this
Indenture; provided, however, that the Trustee's conduct does not
constitute willful misconduct, negligence or bad faith.
(f) The Trustee or any Agent 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.
(g) Subject to Section 9.2 hereof, the Trustee may (but shall
not be obligated to), without the consent of the Holders, give any
consent, waiver or approval required by the terms hereof, but shall not
without the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time outstanding (i)
give any consent, waiver or approval or (ii) agree to any amendment or
modification of this Indenture, in each case, that shall have a
material adverse effect on the interests of any Holder. The Trustee
shall be entitled to request and conclusively rely on an Opinion of
Counsel with respect to whether any consent, waiver, approval,
amendment or modification shall have a material adverse effect on the
interests of any Holder.
SECTION 7.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company, its Subsidiaries, or their respective
Affiliates with the same rights it would have if it were not Trustee. However,
in the event that the Trustee acquires any conflicting interest it must
eliminate such conflict within 90 days, apply to the SEC for permission to
continue as trustee or resign. Any Agent may do the same with like rights. The
Trustee must comply with Sections 7.10 and 7.11.
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SECTION 7.4 Trustee's Disclaimer. The Trustee and the Agents
shall not be responsible for and make no representation as to the validity,
effectiveness or adequacy of this Indenture or the Notes; it shall not be
accountable for the Company's use of the proceeds from the Notes or any money
paid to the Company or upon the Company or upon the Company's direction under
any provision hereof; it shall not be responsible for the use or application of
any money received by any Paying Agent other than the Trustee and it shall not
be responsible for any statement or recital herein of the Company, or any
document issued in connection with the sale of Notes or any statement in the
Notes other than the Trustee's certificate of authentication.
SECTION 7.5 Notice of Default. If an Event of Default occurs
and is continuing and a Trust Officer of the Trustee receives actual notice of
such event, the Trustee shall mail to each Holder, as their names and addresses
appear on the list of Holders described in Section 2.5, notice of the uncured
Default or Event of Default within 30 days after the Trustee receives such
notice. Except in the case of a Default or Event of Default in payment of
principal of, premium, if any, interest, Additional Amounts, if any, or
Liquidated Damages, if any, on any Note, including the failure to make payment
on (i) the Change of Control Payment Date pursuant to a Change of Control Offer
or (ii) the Asset Sale Purchase Date pursuant to an Asset Sale Offer, 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 the Holders.
SECTION 7.6 Report by Trustee to Holders. This Section 7.6
shall not be operative as a part of this Indenture until this Indenture is
qualified under the TIA, and, until such qualification, this Indenture shall be
construed as if this Section 7.6 were not contained herein.
Within 60 days after each May 15 beginning with May 15, 1999,
the Trustee shall, to the extent that any of the events described in TIA Section
313(a) occurred within the previous twelve months, but not otherwise, mail to
each Holder a brief report dated as of such date that complies with TIA Section
313(a). The Trustee also shall comply with TIA Sections 313(b), 313(c) and
313(d).
A copy of each report at the time of its mailing to Holders
shall be mailed to the Company and filed with the SEC and each securities
exchange, if any, on which the Notes are listed.
The Company shall promptly notify the Trustee if subsequent to
the date hereof the Notes become listed on any securities exchange or of any
delisting thereof.
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SECTION 7.7 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 acceptance of this
Indenture and services hereunder. The Trustee's and the Agents' 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 reasonable fees and expenses of
counsel) incurred or made by it in addition to the compensation for their
services, except any such disbursements, expenses and advances as may be
attributable to the Trustee's or any Agent's negligence or bad faith. Such
expenses shall include the reasonable compensation, disbursements and expenses
of the Trustee's and Agents' accountants, experts and counsel and any taxes or
other expenses incurred by a trust created pursuant to Section 8.4 hereof.
The Company shall indemnify each of the Trustee, any
predecessor Trustee and the Agents for, and hold them harmless against, any and
all loss, damage, claim, expense or liability including taxes (other than taxes
based on the income of the Trustee) incurred by the Trustee or an Agent without
negligence, willful misconduct or bad faith on its part in connection with
acceptance of administration of this trust and its duties under this Indenture
and the Escrow Agreement, including the reasonable expenses and attorneys' fees
and expenses of defending itself against any claim of liability arising
hereunder. The Trustee and the Agents shall notify the Company promptly of any
claim asserted against the Trustee or such Agent for which it may seek
indemnity. However, the failure by the Trustee or the Agent to so notify the
Company shall not relieve the Company of its obligations hereunder. The Company
shall defend the claim and the Trustee or such Agent shall cooperate in the
defense (and may employ its own counsel reasonably satisfactory to the Trustee)
at the Company's expense. The Trustee or such Agent may have separate counsel
and the Company shall pay 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. The Company need not reimburse any
expense or indemnify against any loss or liability incurred by the Trustee or
such Agent as a result of the violation of this Indenture by the Trustee or such
Agent if such violation arose from the Trustee's or such Agent's negligence or
bad faith.
To secure the Company's payment obligations in this Section
7.7, the Trustee and the Agents shall have a senior Lien prior to the Notes
against all money or property held or collected by the Trustee and the Agents,
in its capacity as Trustee or Agent, except money or property held in trust to
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pay principal or premium, if any, or interest on particular Notes and except for
any assets held in the Escrow Accounts.
When the Trustee or an Agent incurs expenses or renders
services after an Event of Default specified in Section 6.1(h) or Section 6.1(i)
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 7.7 and any claim arising hereunder shall survive
the termination of this Indenture, the resignation or removal of any Trustee or
Agent, the discharge of the Company's obligations pursuant to Article VIII and
any rejection or termination under any Bankruptcy Law.
SECTION 7.8 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 Notes may remove the Trustee by so notifying
the Company and the Trustee in writing and may appoint a successor trustee with
the Company's consent. A resignation or removal of the Trustee and appointment
of a successor Trustee shall become effective only upon the successor Trustee's
acceptance of appointment as provided in this section. The Company may remove
the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged a bankrupt or an insolvent or an
order for relief is entered with respect to the Trustee under any
Bankruptcy Law;
(iii) a receiver or other public officer takes charge of the
Trustee or its property; or
(iv) the Trustee becomes incapable of acting with respect to
its duties hereunder.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall notify each Holder of
such event and shall promptly appoint a successor Trustee. Within one year after
the successor Trustee takes office, the Holders of a majority in principal
amount of the then outstanding Notes may, with the Company's consent, 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. Immediately after that,
the retiring Trustee
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shall transfer, after payment of all sums then owing to the Trustee pursuant to
Section 7.7, all property held by it as Trustee to the successor Trustee,
subject to the Lien provided in Section 7.7, the resignation or removal of the
retiring Trustee shall become effective, and the successor Trustee shall have
all the rights, powers and duties of the Trustee under this Indenture. A
successor Trustee shall mail notice of its succession to each Holder.
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 then
outstanding Notes may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee after written request by any Holder who has
been a Holder for at least six months fails to comply with Section 7.10, such
Holder 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 7.8, the Company's obligations under Section 7.7 shall continue for the
benefit of the retiring Trustee and the Company shall pay to any replaced or
removed Trustee all amounts owed under Section 7.7 upon such replacement or
removal.
SECTION 7.9 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
association, the resulting, surviving or transferee corporation without any
further act shall, if such resulting, surviving or transferee corporation is
otherwise eligible hereunder, be the successor Trustee. In case any Notes shall
have been authenticated, but not delivered, by the Trustee then in office, any
successor by consolidation, merger or conversion to such authenticating Trustee
may adopt such authentication and deliver the Notes so authenticated with the
same effect as if such successor Trustee had itself authenticated such Notes.
SECTION 7.10 Corporate Trustee Required; Eligibility. There
shall be at all times a Trustee hereunder which shall be eligible to act as
Trustee under the TIA and shall have a combined capital and surplus of at least
$50,000,000 and have its Corporate Trust Office in the Borough of Manhattan, The
City of New York. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of a Federal, State or District
of Columbia supervising or examining authority within the United States of
America, then for the purposes of this Section, the
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combined capital and surplus of such Person shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time the Trustee shall cease to be eligible in accordance
with the provisions of this Section, it shall resign immediately in the manner
and with the effect hereinafter specified in this Article.
SECTION 7.11 Disqualification; Conflicting Interests. If the
Trustee has or shall acquire a conflicting interest within the meaning of the
TIA, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the TIA and
this Indenture.
SECTION 7.12 Preferential Collection of Claims Against
Company. The Trustee, in its capacity as Trustee hereunder, 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.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 8.1 Option To Effect Legal Defeasance or Covenant
Defeasance. The Company may, at the option of its Board of Directors evidenced
by a resolution set forth in an Officers' Certificate, at any time, with respect
to the Notes, elect to have either Section 8.2 or 8.3 be applied to all
outstanding Notes upon compliance with the conditions set forth below in this
Article VIII.
SECTION 8.2 Legal Defeasance and Discharge. Upon the Company's
exercise under Section 8.1 of the option applicable to this Section 8.2, the
Company shall be deemed to have been discharged from its obligations with
respect to all outstanding Notes on the date the conditions set forth below are
satisfied (hereinafter, "Legal Defeasance"). For this purpose, such Legal
Defeasance means that the Company shall be deemed to have paid and discharged
all the Obligations relating to the outstanding Notes and the Notes shall
thereafter be deemed to be "outstanding" only for the purposes of Section 8.6,
Section 8.8 and the other Sections of this Indenture referred to below in this
Section 8.2, and to have satisfied all of their other obligations under such
Notes and this Indenture and cured all then existing Events of Default (and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder:
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(a) the rights of Holders of outstanding Notes to receive payments in respect of
the principal of, premium, if any, interest, Additional Amounts, if any, and
Liquidated Damages, if any, on such Notes when such payments are due or on the
Redemption Date solely out of the trust created pursuant to this Indenture; (b)
the Company's obligations with respect to Notes concerning issuing temporary
Notes, or, where relevant, registration of such Notes, mutilated, destroyed,
lost or stolen Notes and the maintenance of an office or agency for payment and
money for security payments held in trust; (c) the rights, powers, trusts,
duties and immunities of the Trustee, and the Company's obligations in
connection therewith; and (d) this Article VIII and the obligations set forth in
Section 8.6 hereof.
Subject to compliance with this Article VIII, the Company may
exercise its option under Section 8.2 notwithstanding the prior exercise of its
option under Section 8.3 with respect to the Notes.
SECTION 8.3 Covenant Defeasance. Upon the Company's exercise
under Section 8.1 of the option applicable to this Section 8.3, the Company
shall be released from any obligations under the covenants contained in Sections
4.3, 4.4, 4.10, 4.12, 4.13, 4.14, 4.15, and 4.16 hereof with respect to the
outstanding Notes on and after the date the conditions set forth below are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of any direction, waiver, consent
or declaration or act of Holders (and the consequences of any thereof) in
connection with such covenants, but shall continue to be deemed "outstanding"
for all other purposes hereunder (it being understood that such Notes shall not
be deemed outstanding for accounting purposes). For this purpose, such Covenant
Defeasance means that, with respect to the outstanding Notes, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such covenant, whether directly or
indirectly, by reason of any reference elsewhere herein to any such covenant or
by reason of any reference in any such covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a Default
or Event of Default under Section 6.1(e), nor shall any event referred to in
Sections 6.1(f) or (g) thereafter constitute a Default or Event of Default, but,
except as specified above, the remainder of this Indenture and such Notes shall
be unaffected thereby.
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SECTION 8.4 Conditions to Legal or Covenant Defeasance. The
following shall be the conditions to the application of either Section 8.2 or
Section 8.3 to the outstanding Notes:
(i) the Company must irrevocably deposit, or cause to be
irrevocably deposited, with the Trustee, in trust, for the benefit of
the Holders of the Notes, cash in U.S. dollars, Government Securities
or a combination thereof in such amounts as will be sufficient, in the
opinion of an internationally recognized firm of independent public
accountants, to pay the principal of, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, due on the
outstanding Notes on the stated maturity date or on the applicable
Redemption Date, as the case may be, of such principal, premium, if
any, interest, Additional Amounts, if any, and Liquidated Damages, if
any, due on the outstanding Notes;
(ii) in the case of Legal Defeasance, the Company shall have
delivered to the Trustee (A) an Opinion of Counsel in the United States
reasonably acceptable to the Trustee confirming that, subject to
customary assumptions and exclusions, (1) the Company has received
from, or there has been published by, the U.S. Internal Revenue Service
a ruling or (2) since the Issue Date, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect
that, and based thereon such Opinion of Counsel in the United States
shall confirm that, subject to customary assumptions and exclusions,
the Holders of the outstanding Notes will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such Legal
Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred and (B) an Opinion
of Counsel in The Netherlands reasonably acceptable to the Trustee to
the effect that (1) Holders will not recognize income, gain or loss for
Netherlands income tax purposes as a result of such Legal Defeasance
and will be subject to Netherlands income tax on the same amounts, in
the same manner and at the same times as would have been the case if
such Legal Defeasance had not occurred and (2) payments from the
defeasance trust will be free and exempt from any and all withholding
and other income taxes of whatever nature imposed or levied by or on
behalf of The Netherlands or any political subdivision thereof or
therein having the power to tax;
(iii) in the case of Covenant Defeasance, the Company shall
have delivered to the Trustee (A) an Opinion of
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Counsel in the United States reasonably acceptable to the Trustee
confirming that, subject to customary assumptions and exclusions, the
Holders of the outstanding Notes will not recognize income, gain or
loss for U.S. federal income tax purposes as a result of such Covenant
Defeasance and will be subject to such tax on the same amounts, in the
same manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred and (B) an Opinion of Counsel in
The Netherlands reasonably acceptable to the Trustee to the effect that
(1) Holders will not recognize income, gain or loss for Netherlands
income tax purposes as a result of such Covenant Defeasance and will be
subject to Netherlands income tax on the same amounts, in the same
manner and at the same times as would have been the case if such
Covenant Defeasance had not occurred and (2) payments from the
defeasance trust will be free and exempt from any and all withholding
and other income taxes of whatever nature imposed or levied by or on
behalf of The Netherlands or any political subdivision thereof or
therein having the power to tax;
(iv) no Default or Event of Default shall have occurred and be
continuing with respect to certain Events of Default on the date of
such deposit;
(v) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute a default under any
material agreement or instrument to which the Company is a party or by
which the Company is bound;
(vi) the Company shall have delivered to the Trustee an
Opinion of Counsel to the effect that, as of the date of such opinion
and subject to customary assumptions and exclusions following the
deposit, the trust funds will not be subject to the effect of any
applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally under any applicable Netherlands
and U.S. federal or state law, and that the Trustee has a perfected
security interest in such trust funds for the ratable benefit of the
Holders;
(vii) the Company shall have delivered to the Trustee an
Officers' Certificate stating that the deposit was not made by the
Company with the intent of defeating, hindering, delaying or defrauding
any creditors of the Company or others; and
(viii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel (which opinion of
counsel may be subject to customary
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assumptions and exclusions) each stating that all conditions precedent
provided for or relating to the Legal Defeasance or the Covenant
Defeasance, as the case may be, have been complied with.
SECTION 8.5 Satisfaction and Discharge of Indenture. This
Indenture will be discharged and will cease to be of further effect as to all
Notes issued thereunder when either (i) all such Notes theretofore authenticated
and delivered (except lost, stolen or destroyed Notes which have been replaced
or paid and Notes for whose payment money has theretofore been deposited in
trust and thereafter repaid to the Company) have been delivered to the Trustee
for cancellation; or (ii) (A) all such Notes not theretofore delivered to such
Trustee for cancellation have become due and payable by reason of the making of
a notice of redemption or otherwise or will become due and payable within one
year and the Company has irrevocably deposited or caused to be deposited with
such Trustee as trust funds in trust an amount of money sufficient to pay and
discharge the entire indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation for principal, premium, if any, and accrued and unpaid
interest, Additional Amounts, if any, and Liquidated Damages, if any, to the
date of maturity or redemption; (B) no Default with respect to this Indenture or
the Notes shall have occurred and be continuing on the date of such deposit or
shall occur as a result of such deposit and such deposit will not result in a
breach or violation of, or constitute a default under, any other instrument to
which the Company is a party or by which it is bound; (C) the Company has paid,
or caused to be paid, all sums payable by it under this Indenture; and (D) the
Company has delivered irrevocable instructions to the Trustee under this
Indenture to give the notice of redemption and apply the deposited money toward
the payment of such Notes at maturity or the Redemption Date, as the case may
be. In addition, the Company must deliver an Officers' Certificate and an
Opinion of Counsel to the Trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
SECTION 8.6 Survival of Certain Obligations. Notwithstanding
the satisfaction and discharge of this Indenture and of the Notes referred to in
Section 8.1, 8.2, 8.3, 8.4 or 8.5, the respective obligations of the Company and
the Trustee under Sections 2.2, 2.3, 2.4, 2.5, 2.6, 2.7, 2.10, 2.11, 2.12, 2.13,
2.14, 4.1, 4.2, 4.5, 4.21, 6.10, Article VII, 8.7, 8.8, 8.9 and 8.10 shall
survive until the Notes are no longer outstanding, and thereafter the
obligations of the Company and the Trustee under Sections 7.7, 8.7, 8.8, 8.9 and
8.10 shall survive. Nothing contained in this Article VIII shall abrogate any of
the obligations or duties of the Trustee under this Indenture.
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SECTION 8.7 Acknowledgement of Discharge by Trustee. Subject
to Section 8.10, after (i) the conditions of Section 8.4 or 8.5 have been
satisfied, (ii) the Company has paid or caused to be paid all other sums payable
hereunder by the Company and (iii) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that all
conditions precedent referred to in clause (i) above relating to the
satisfaction and discharge of this Indenture have been complied with, the
Trustee upon written request shall acknowledge in writing the discharge of all
of the Company's obligations under this Indenture except for those surviving
obligations specified in this Article VIII.
SECTION 8.8 Application of Trust Moneys. All cash in U.S.
dollars and Government Securities deposited with the Trustee pursuant to Section
8.4 or 8.5 in respect of Notes shall be held in trust and applied by it, in
accordance with the provisions of such Notes and this Indenture, to the payment,
either directly or through any Paying Agent as the Trustee may determine, to the
Holders of the Notes of all sums due and to become due thereon for principal,
premium, if any, interest, Additional Amounts, if any, and Liquidated Damages,
if any, but such money need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Securities deposited pursuant to Section 8.4 or 8.5 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 Notes.
SECTION 8.9 Repayment to the Company; Unclaimed Money. The
Trustee and any Paying Agent shall promptly pay or return to the Company upon
Company Order any cash or Government Securities held by them at any time that
are not required for the payment of the principal of, premium, if any, interest,
Additional Amounts, if any, and Liquidated Damages, if any, on the Notes for
which cash or Government Securities have been deposited pursuant to Section 8.4
or 8.5.
Any money held by the Trustee or any Paying Agent under this
Article, in trust for the payment of the principal of, premium, if any,
interest, Additional Amounts, if any, and Liquidated Damages, if any, on any
Note and remaining unclaimed for two years after such principal, premium, if
any, interest, Additional Amounts, if any, and Liquidated Damages, if any, has
become due and payable shall be paid to the Company upon Company Order or if
then held by the Company shall be discharged from such trust; and the Holder of
such
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Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company give notice to the Holders
or cause to be published notice once, in a leading newspaper having a general
circulation in New York (which is expected to be The Wall Street Journal) and in
Amsterdam (which is expected to be Het Financieele Dagblad ) (and, if and so
long as the Notes are listed on the Luxembourg Stock Exchange and the rules of
such Stock Exchange shall so require, a newspaper having a general circulation
in Luxembourg (which is expected to be the Luxemburger Wort)) or in the case of
Definitive Notes, mail to Holders by first-class mail, postage prepaid, at their
respective addresses as they appear on the registration books of the Registrar
(and, if and so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of such Stock Exchange shall so require, publish in a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)), that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 8.10 Reinstatement. If the Trustee or Paying Agent is
unable to apply any cash or Government Securities, as applicable, in accordance
with Section 8.2, 8.3, 8.4 or 8.5 by reason of any legal proceeding or by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, the Company's obligations
under this Indenture and the Notes shall be revived and reinstated as though no
deposit had occurred pursuant to Section 8.2, 8.3, 8.4 or 8.5 until such time as
the Trustee or Paying Agent is permitted to apply all such cash or Government
Securities in accordance with Section 8.2, 8.3, 8.4 or 8.5; provided, however,
that if the Company has made any payment of interest on, premium, if any,
principal, Additional Amounts, if any, and Liquidated Damages, if any, of any
Notes because of the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Notes to receive such payment
from the money or Government Securities, as applicable, held by the Trustee or
Paying Agent.
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ARTICLE IX
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 9.1 Without Consent of Holders of Notes.
Notwithstanding Section 9.2 hereof, the Company and the Trustee together may
amend or supplement this Indenture or the Notes without the consent of any
Holder of a Note (i) to cure any ambiguity, omission, defect or inconsistency,
(ii) to provide for uncertificated Notes in addition to or in place of
certificated Notes, (iii) to provide for the assumption of the Company
obligations to Holders of such Notes in the case of a merger or consolidation
pursuant to Article V, (iv) to provide for the assumption of the Company's
obligations to Holders of such Notes, (v) to make any change that would provide
any additional rights or benefits to the Holders of the Notes or that does not
adversely affect the legal rights under this Indenture of any such Holder, (vi)
to add covenants for the benefit of the Holders or to surrender any right or
power conferred upon the Company, (vii) to comply with requirements of the
Commission in order to effect or maintain the qualification of the Indenture
under the TIA, (viii) to provide for the issuance of the Exchange Notes (which
will have terms identical in all material respects to the Initial Notes except
that the transfer restrictions contained in the Initial Notes will be modified
or eliminated, as appropriate), and which will be treated together with any
outstanding Initial Notes, as a single issue of Notes or (ix) to execute and
deliver any documents necessary or appropriate to release Liens on any Escrow
Collateral as permitted by the Escrow Agreement.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
9.6, the Trustee shall join with the Company in the execution of any amended or
supplemental indenture authorized or permitted by the terms of this Indenture
and to make any further appropriate agreements and stipulations which may be
therein contained, but the Trustee shall not be obligated to enter into such
amended or supplemental indenture which adversely affects its own rights, duties
or immunities hereunder or otherwise.
SECTION 9.2 With Consent of Holders of Notes. The Company and
the Trustee may amend or supplement this Indenture or the Notes or any amended
or supplemental indenture with the written consent of the Holders of at least a
majority in principal amount of the Notes then outstanding (including consents
obtained in connection with a tender offer or exchange offer for the Notes), and
any existing Default or Event of Default and its consequences or
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compliance with any provision of this Indenture or the Notes may be waived with
the consent of the Holders of at least a majority in principal amount of the
Notes then outstanding (including consents obtained in connection with a tender
offer or exchange offer for the Notes). However, without the consent of each
Holder affected, an amendment or waiver may not (with respect to any Notes held
by a non-consenting Holder of Notes): (i) reduce the principal amount of the
Notes whose Holders must consent to an amendment, supplement or waiver, (ii)
reduce the principal of or change the fixed maturity of any such Note or alter
or waive the provisions with respect to the redemption of the Notes with respect
to the timing or amount of payment thereof, (iii) reduce the rate of or change
the time for payment of interest, including defaulted interest, on any Note,
(iv) waive a Default in the payment of principal of, premium, if any, interest,
Additional Amounts, if any, or Liquidated Damages, if any, on the Notes (except
a rescission of acceleration of the Notes by the Holders of at least a majority
in aggregate principal amount of the Notes and a waiver of the payment default
that resulted from the acceleration) or in respect of a covenant or provision
contained in this Indenture which cannot be amended or modified without the
consent of all Holders, (v) make any Note payable in money other than that
stated in the Notes, (vi) make any change in the provisions of this Indenture
relating to waivers of past Defaults or the rights of Holders of the Notes to
receive payments of principal, premium, if any, interest, Additional Amounts, if
any, or Liquidated Damages, if any, on the Notes, (vii) make any change in the
amendment and waiver provisions contained in this Indenture, (viii) make any
change in paragraph 3 of the Initial Notes or paragraph 2 of the Exchange Notes
that adversely affects the rights of any Holder of the Notes, (ix) amend the
terms of the Notes or this Indenture in a way that would result in the loss of
an exemption from any Taxes or an exemption from any obligation to withhold or
deduct Taxes unless the Company agrees to pay Additional Amounts, if any, in
respect thereof, (x) impair the right of any Holder of the Notes to receive
payment of principal of, interest, Liquidated Damages, if any, on such Holder's
Notes on or after the due dates therefor or to institute suit for the
enforcement of any payment on or with respect to such Holder's Notes or (xi)
modify the provisions of the Escrow Agreement or the Indenture relating to the
Escrow Collateral in any manner adverse to the Holders or release the Escrow
Collateral from the Lien under the Escrow Agreement (except as permitted by the
terms thereunder) or permit any other obligation to be secured by the Escrow
Collateral.
Upon the request of the Company, accompanied by a Board
Resolution authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the
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consent of the Holders of Notes as aforesaid, and upon receipt by the Trustee of
the documents described in Section 9.6, the Trustee shall join with the Company
in the execution of such amended or supplemental indenture unless such amended
or supplemental indenture adversely affects the Trustee's own rights, duties or
immunities hereunder or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of
Notes under this Section 9.2 to approve the particular form of any proposed
amendment or waiver, but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
becomes effective, the Company shall mail to the Holders of Notes affected
thereby a notice briefly describing the amendment, supplement or waiver. Any
failure of the Company to mail such notice, or any defect therein, shall not,
however, in any way impair or affect the validity of any such amended or
supplemental indenture or waiver.
SECTION 9.3 Compliance with TIA. From the date on which this
Indenture is qualified under the TIA, every amendment, waiver or supplement of
this Indenture or the Notes shall comply with the TIA as then in effect.
SECTION 9.4 Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Note is a continuing consent by the Holder of a Note and every subsequent
Holder of a Note or portion of a Note that evidences the same debt as the
consenting Holder's Note, even if notation of the consent is not made on any
Note. However, any such Holder of a Note or subsequent Holder of a Note may
revoke the consent as to its Note if the Trustee receives written notice of
revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder of a Note.
The Company may fix a record date for determining which
Holders of the Notes must consent to such amendment, supplement or waiver. If
the Company fixes a record date, the record date shall be fixed at (i) the later
of 30 days prior to the first solicitation of such consent or the date of the
most recent list of Holders of Notes furnished to the Trustee prior to such
solicitation pursuant to Section 2.5 or (ii) such other date as the Company
shall designate.
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SECTION 9.5 Notation on or Exchange of Notes. The Trustee may
place an appropriate notation about an amendment, supplement or waiver on any
Note thereafter authenticated. The Company in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the amendment,
supplement or waiver.
Failure to make the appropriate notation or issue a new Note
shall not affect the validity and effect of such amendment, supplement or
waiver.
SECTION 9.6 Trustee To Sign Amendments, Etc. The Trustee shall
execute any amendment, supplement or waiver authorized pursuant to this Article
IX; provided, however, that the Trustee may, but shall not be obligated to,
execute any such amendment, supplement or waiver which adversely affects the
Trustee's own rights, duties or immunities under this Indenture. The Trustee
shall be entitled to receive indemnity reasonably satisfactory to it, and shall
be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate each stating that the execution of any amendment, supplement or
waiver authorized pursuant to this Article IX is authorized or permitted by this
Indenture and constitutes the legal, valid and binding obligations of the
Company enforceable in accordance with its terms. Such Opinion of Counsel shall
not be an expense of the Trustee.
ARTICLE X
COLLATERAL AND SECURITY
SECTION 10.1 Escrow Agreement. The due and punctual payment of
the principal of and interest on the Notes when and as the same shall be due and
payable, whether on an Interest Payment Date, at maturity, by acceleration,
repurchase, redemption or otherwise, and interest on the overdue principal of
and interest (to the extent permitted by law), if any, on such Notes and
performance of all other obligations of the Company to the Holders of such Notes
or the Trustee under this Indenture with respect to such Notes, and each of the
Notes, according to the terms hereunder or thereunder, shall be secured as
provided in the Escrow Agreement which the Company, the Escrow Agent and the
Trustee have entered into simultaneously with the execution of this Indenture.
Each Holder of each Note, by its acceptance thereof, consents and agrees to the
terms of the Escrow Agreement (including, without limitation, the provisions
providing for foreclosure and disbursement of Escrow Collateral) as the same may
be in effect or may be amended from time to time in accordance with its terms
and authorizes and directs the Escrow Agent and the Trustee to enter into
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the Escrow Agreement and to perform its obligations and exercise its rights
thereunder in accordance therewith. The Company shall deliver to the Trustee
copies of the Escrow Agreement, and shall do or cause to be done all such acts
and things as may be necessary or proper, or as may be required by the
provisions of the Escrow Agreement, to assure and confirm to the Trustee (acting
on behalf of the Holders of the Notes) the security interest in the Escrow
Collateral with respect to the Notes contemplated by the Escrow Agreement or any
part thereof, as from time to time constituted, so as to render the same
available for the security and benefit of this Indenture with respect to, and
of, such Notes, according to the intent and purposes expressed in the Escrow
Agreement. The Company shall take any and all actions reasonably required to
cause the Escrow Agreement to create and maintain (to the extent possible under
applicable law), as security for the obligations of the Company hereunder, a
valid and enforceable perfected first priority Lien in and on all the Escrow
Collateral with respect to the Notes, in favor of the Trustee (acting on behalf
of the Holders of the Notes) for the benefit of the Holders of such Notes,
superior to and prior to the rights of all third Persons and subject to no other
Liens.
SECTION 10.2 Recording and Opinions. (a) The Company shall
furnish to the Trustee simultaneously with the execution and delivery of this
Indenture an Opinion of Counsel either (i) stating that in the opinion of such
counsel all action has been taken with respect to the recording, registering and
filing of this Indenture, financing statements or other instruments necessary to
make effective the Lien intended to be created by the Escrow Agreement, and
reciting with respect to the security interests in the Escrow Collateral, the
details of such action, or (ii) stating that, in the opinion of such counsel, no
such action is necessary to make such Lien effective.
(b) The Company shall furnish to the Escrow Agent and the
Trustee within 90 days of, and of each anniversary of, December 3, 1998, until
the date upon which the balance of Available Funds (as defined in the Escrow
Agreement) shall have been reduced to zero, an Opinion of Counsel, dated as of
such date, either (i) stating that (A) in the opinion of such counsel, action
has been taken with respect to the recording, registering, filing, re-recording,
re-registering and refiling of all supplemental indentures, financing
statements, continuation statements or other instruments of further assurance as
is necessary, if any, to maintain the Lien of the Escrow Agreement and reciting
with respect to the security interests in the Escrow Collateral the details of
such action or referring to prior Opinions of Counsel in which such details are
given and (B) based on relevant laws as in effect on the date of such Opinion of
Counsel, all
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financing statements and continuation statements have been executed and filed
that are necessary as of such date and during the succeeding 12 months fully to
preserve and protect, to the extent such protection and preservation are
possible by filing, the rights of the Holders of the Notes and the Trustee
hereunder and under the Escrow Agreement with respect to the security interests
in the Escrow Collateral with respect to such Notes or (ii) stating that, in the
opinion of such counsel, no such action is necessary to maintain such Lien and
assignment.
SECTION 10.3 Release of Collateral. (a) Subject to subsections
(b), (c) and (d) of this Section 10.3, Escrow Collateral may be released from
the Lien and security interest created by the Escrow Agreement only in
accordance with the provisions of the Escrow Agreement.
(b) Except to the extent that any Lien on proceeds of Escrow
Collateral is automatically released by operation of Section 9-306 of the
Uniform Commercial Code or other similar law, no Escrow Collateral shall be
released from the Lien and security interest created by the Escrow Agreement
pursuant to the provisions of the Escrow Agreement, other than pursuant to the
terms thereof, unless there shall have been delivered to the Trustee the
certificate required by Section 10.3(d) and Section 10.4.
(c) At any time when an Event of Default shall have occurred
and be continuing and the maturity of the Notes issued on the Issuance Date
shall have been accelerated (whether by declaration or otherwise), no Escrow
Collateral shall be released pursuant to the provisions of the Escrow Agreement,
and no release of Escrow Collateral in contravention of this Section 10.3(c)
shall be effective as against the Holders of Notes, except for the disbursement
of all Available Funds (as defined in the Escrow Agreement) to the Trustee
pursuant to Section 6(c) of the Escrow Agreement.
(d) The release of any Escrow Collateral from the Liens and
security interests created by the Escrow Agreement shall not be deemed to impair
the security under the Escrow Agreement in contravention of the provisions
hereof if and to the extent the Escrow Collateral is released pursuant to the
terms hereof or, subject to complying with the requirements of this Section
10.3, and Section 10.4 pursuant to the terms of the Escrow Agreement. To the
extent applicable, the Company shall cause TIA ss. 314(d) relating to the
release of property or securities from the Lien and security interest of the
Escrow Agreement to be complied with. Any certificate or opinion required by TIA
ss. 314(d) may be made by an Officer of the Company except in cases where TIA
ss. 314(d) requires that such certificate or opinion be made by an independent
Person, which Person shall be an independent engineer, appraiser or
99
other expert selected or approved by the Trustee in the
exercise of reasonable care.
SECTION 10.4. Certificates of the Company. The Company shall
furnish to the Trustee, prior to any proposed release of Escrow Collateral other
than pursuant to the express terms of the Escrow Agreement, (i) all documents
required by Section 314(d) of the TIA and (ii) an Opinion of Counsel, which may
be rendered by internal counsel to the Company, to the effect that such
accompanying documents constitute all documents required by Section 314(d) of
the TIA. The Trustee may, to the extent permitted by Sections 7.1 and 7.2,
accept as conclusive evidence of compliance with the foregoing provisions the
appropriate statements contained in such documents and such Opinion of Counsel.
SECTION 10.5. Authorization of Actions to be Taken by the
Trustee Under the Escrow Agreement. Subject to the provisions of Sections 7.1
and 7.2, the Trustee may in the name and on behalf of the Holders of such Notes,
without the consent of the Holders of the Notes, take all actions it deems
necessary or appropriate in order to (a) enforce any of the terms of the Escrow
Agreement and (b) collect and receive any and all amounts payable in respect of
the obligations of the Company hereunder. The Trustee shall have power to
institute and maintain such suits and proceedings as it may deem expedient to
prevent any impairment of the Escrow Collateral by any acts that may be unlawful
or in violation of the Escrow Agreement or this Indenture, and such suits and
proceedings as the Trustee may deem expedient to preserve or protect its
interests and the interests of the Holders of the Notes in the Escrow Collateral
with respect to such Notes (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative or
other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the security interest hereunder or be prejudicial to
the interests of the Holders of such Notes or of the Trustee).
SECTION 10.6. Authorization of Receipt of Funds by the Trustee
Under the Escrow Agreement. The Trustee is authorized to receive any funds for
the benefit of the Holders of Notes disbursed under the Escrow Agreement, and to
make further distributions of such funds to the Holders of Notes according to
the provisions of this Indenture.
SECTION 10.7. Termination of Security Interest. Upon the
earliest to occur of (i) the date upon which the balance of Available Funds (as
defined in the Escrow Agreement) shall have been reduced to zero, (ii) the
payment in full of all obligations of the Company under this
100
Indenture and the Notes, (iii) Legal Defeasance pursuant to Section 8.2 and (iv)
Covenant Defeasance pursuant to Section 8.3, the Trustee shall, at the written
request of the Company, release the Liens pursuant to the Escrow Agreement upon
the Company's compliance with the provisions of the TIA pertaining to release of
collateral.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 TIA Controls. If any provision of this Indenture
limits, qualifies, or conflicts with the duties imposed by operation of Section
3.18(c) of the TIA, the imposed duties shall control.
SECTION 11.2 Notices. Any notices or other communications
required or permitted hereunder shall be in writing, and shall be sufficiently
given if made by hand delivery, by telecopier or first-class mail, postage
prepaid, addressed as follows:
if to the Company:
VersaTel Telecom International N.V.
Xxxxxxxxxxx 00
0000 XX Xxxxxxxxx-X.X.
Xxx Xxxxxxxxxxx
Facsimile No: 00-00-000-00-00
Attention: Xxx Xxxxxxxxx
with a copy to:
Shearman & Sterling
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No: 212-848-7179
Attention: Xxxx X. Xxxxxxxx, Xx. Esq.
if to the Trustee:
United States Trust Company of New York,
as Trustee, Registrar or Paying Agent
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Facsimile: (000) 000-0000
Each of the Company and the Trustee by written notice to each
other such Person may designate additional or different addresses for notices to
such Person. Any notice
101
or communication to the Company and the Trustee, shall be deemed to have been
given or made as of the date so delivered if personally delivered; when receipt
is acknowledged, if telecopied; and five (5) calendar days after mailing if sent
by first class mail, postage prepaid (except that a notice of change of address
and a Notice to the Trustee shall not be deemed to have been given until
actually received by the addressee).
Any notice or communication mailed to a Holder shall be mailed
to such Person by first-class mail or other equivalent means at such Person's
address as it appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Notices regarding the Notes will be (i) published in a leading
newspaper having a general circulation in New York (which is expected to be The
Wall Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad ) (and, if and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) or (ii) in the case of Definitive Notes, mailed to Holders by
first-class mail at their respective addresses as they appear on the
registration books of the Registrar (and, if and so long as the Notes are listed
on the Luxembourg Stock Exchange and the rules of such Stock Exchange shall so
require, published in a newspaper having a general circulation in Luxembourg
(which is expected to be the Luxemburger Wort)). Notices given by publication
will be deemed given on the first date on which publication is made and notices
given by first-class mail, postage prepaid, will be deemed given five calendar
days after mailing.
SECTION 11.3 Communications by Holders with Other Holders.
Holders may communicate pursuant to TIA Section 312(b) with other Holders with
respect to their rights under this Indenture or the Notes. The Company, the
Trustee, the Registrar and any other person shall have the protection of TIA
Section 312(c).
SECTION 11.4 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the
102
Company to the Trustee or an Agent to take 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 reasonably
satisfactory to the Trustee (which shall include the statements set
forth in Section 11.5), stating that, in the opinion of the signers,
all conditions precedent and covenants, if any, provided for in this
Indenture relating to the proposed action have been satisfied or
complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee or such Agent (which shall include the
statements set forth in Section 11.5) stating that, in the opinion of
such counsel, all such conditions precedent and covenants have been
satisfied or complied with.
SECTION 11.5 Statements Required in Certificate or Opinion.
Each certificate 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, such
Person has made such examination or investigation as is necessary to
enable such Person to express an informed opinion as to whether or not
such covenant or condition has been complied with; and
(4) a statement as to whether or not, in the opinion of each
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 11.6 Rules by Trustee, Paying Agent, Registrar. The
Trustee, Paying Agent or Registrar may make reasonable rules for its functions.
103
SECTION 11.7 Legal Holidays. If a payment date is not a
Business Day, payment may be made on the next succeeding day that is a Business
Day, and no interest shall accrue for the intervening period.
SECTION 11.8 Governing Law. This Indenture and
the Notes shall be governed by and construed in accordance with the internal
laws of the State of New York.
SECTION 11.9 Submission to Jurisdiction; Appointment of Agent
for Service; Waiver. To the fullest extent permitted by applicable law, the
Company irrevocably submits to the non-exclusive jurisdiction of any federal or
state court in the Borough of Manhattan in The City of Xxx Xxxx, Xxxxxx xxx
Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America, in any suit or proceeding based on
or arising under this Indenture and the Notes, and irrevocably agrees that all
claims in respect of such suit or proceeding may be determined in any such
court. The Company, to the fullest extent permitted by applicable law,
irrevocably and fully waives the defense of an inconvenient forum to the
maintenance of such suit or proceeding and hereby irrevocably designates and
appoints CT Corporation System (the "Authorized Agent"), as its authorized agent
upon whom process may be served in any such suit or proceeding. The Company
represents that it has notified the Authorized Agent of such designation and
appointment and that the Authorized Agent has accepted the same in writing. The
Company hereby irrevocably authorizes and directs its Authorized Agent to accept
such service. The Company further agrees that service of process upon its
Authorized Agent and written notice of said service to the Company mailed by
first class mail or delivered to its Authorized Agent shall be deemed in every
respect effective service of process upon the Company in any such suit or
proceeding. Nothing herein shall affect the right of any person to serve process
in any other manner permitted by law. The Company agrees that a final action in
any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other lawful manner.
Notwithstanding the foregoing, any action against the Company arising out of or
based on this Indenture, the Notes or the transactions contemplated hereby may
also be instituted in any competent court in The Netherlands, and the Company
expressly accepts the jurisdiction of any such court in any such action.
The Company hereby irrevocably waives, to the extent permitted
by law, any immunity to jurisdiction to which it may otherwise be entitled
(including, without limitation, immunity to pre-judgment attachment,
post-judgment attachment and execution) in any legal suit, action or proceeding
against it arising out of or based on this Indenture, the Notes or the
transactions contemplated hereby.
104
The provisions of this Section 11.9 are intended to be
effective upon the execution of this Indenture and the Notes without any further
action by the Company or the Trustee and the introduction of a true copy of this
Indenture into evidence shall be conclusive and final evidence as to such
matters.
SECTION 11.10 No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or debt
agreement of any of the Company or any of its Subsidiaries. Any such indenture,
loan or debt agreement may not be used to interpret this Indenture.
SECTION 11.11 No Personal Liability of Directors, Officers,
Employees, Stockholders or Incorporators. No director, officer, employee,
incorporator or stockholder of the Company shall have any liability for any
obligations of the Company under the Notes or this Indenture or for any claim
based on, in respect of, or by reason of such obligations or their creation.
Each Holder of the Notes by accepting a Note waives and releases all such
liability. The waiver and release are part of the consideration for issuance of
the Notes.
SECTION 11.12 Currency Indemnity. U.S. dollars are the sole
currency of account and payment for all sums payable by the Company under or in
connection with the Notes, including damages. Any amount received or recovered
in a currency other than U.S. dollars (whether as a result of, or the
enforcement of, a judgment or order of a court of any jurisdiction, in the
winding-up or dissolution of the Company or otherwise) by any Holder of a Note
in respect of any sum expressed to be due to it from the Company shall only
constitute a discharge to the Company to the extent of the U.S. dollar amount
which the recipient is able to purchase with the amount so received or recovered
in that other currency on the date of that receipt or recovery (or, if it is not
practicable to make that purchase on that date, on the first date on which it is
practicable to do so). If that U.S. dollar amount is less than the U.S. dollar
amount expressed to be due to the recipient under any Note, the Company shall
indemnify it against any loss sustained by it as a result. If the dollar amount
is greater than the dollar amount expressed to be due to the recipient under
this Agreement, the Company shall be entitled to the amount of such excess. In
any event, the Company shall indemnify the recipient against the cost of making
any such purchase. For the purposes of this subsection, it will be sufficient
for the Trustee or any Holder of a Note to certify in a satisfactory manner
(indicating the sources of information used) that it would have suffered a loss
had an actual purchase of U.S. dollars been made with the amount so received in
that other currency
105
on the date of receipt or recovery (or, if a purchase of dollars on such date
had not been practicable, on the first date on which it would have been
practicable, it being required that the need for a change of date be certified
in the manner mentioned above). These indemnities constitute a separate and
independent obligation from the Company's other obligations, shall give rise to
a separate and independent cause of action, shall apply irrespective of any
indulgence granted by the Trustee or any Holder of a Note and shall continue in
full force and effect despite any other judgment, order, claim or proof for a
liquidated amount in respect of any sum due under any Note.
SECTION 11.13 Successors. All agreements of the Company in
this Indenture and the Notes shall bind its successors. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.14 Counterpart Originals. All parties hereto may
sign any number of copies of this Indenture. Each signed copy or counterpart
shall be an original, but all of them together shall represent one and the same
agreement.
SECTION 11.15 Severability. In case any one or more of the
provisions in this Indenture or in the Notes shall be held invalid, illegal or
unenforceable, in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions shall not in any way be affected or impaired thereby, it being
intended that all of the provisions hereof shall be enforceable to the full
extent permitted by law.
SECTION 11.16 Table of Contents, Headings, etc. The Table of
Contents, Cross-Reference Table and Headings of the Articles and Sections of
this Indenture have been inserted for convenience of reference only, are not to
be considered a part of this Indenture and shall in no way modify or restrict
any of the terms or provisions hereof.
106
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, as of the date first written above.
VERSATEL TELECOM INTERNATIONAL
N.V.,
by /s/ R. Xxxx Xxxxx
----------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee, Registrar and
Paying Agent,
by /s/ Xxxx Xxxxxxxx
----------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
EXHIBIT A
TO THE INDENTURE
[FORM OF FACE OF INITIAL GLOBAL NOTE]
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL HAVE
THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE (D)
OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS
A-1
SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE, THIS
LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION,"
"UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION
S UNDER THE SECURITIES ACT.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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 SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN SECTION 2.6 OF THE INDENTURE PURSUANT TO WHICH THEY WERE ISSUED.
A-2
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
CUSIP NO.:
[If Regulation S Security - CINS Number _________]
No.____ $____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any successor corporation), for value received promises to pay Cede &
Co. or registered assigns upon surrender hereof the principal sum indicated on
Schedule A hereof, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing May
15, 1999
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note
contained herein, which will for all purposes have the same effect as if set
forth at this place.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be
signed manually or by facsimile by its duly authorized officers.
VERSATEL TELECOM INTERNATIONAL
N.V.,
by __________________________
Name: R. Xxxx Xxxxx
Title: Managing Director
This is one of the Notes
referred to in the within-mentioned
Indenture:
UNITED STATES TRUST COMPANY OF NEW
YORK, as Trustee,
by
__________________________
Name:
Title:
Dated:
A-4
[FORM OF REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 13 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each May 15 and November 15, or if any such day is not a Business Day on the
next succeeding Business Day, commencing May 15, 1999, to the Holder hereof.
Notwithstanding any exchange of this Note for a Definitive Note during the
period starting on a Record Date relating to such Definitive Note and ending on
the immediately succeeding Interest Payment Date, the interest due on such
Interest Payment Date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from December 3, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods), on any Additional Amounts, and on any Liquidated Damages, from time to
time on demand at the rate borne by the Notes plus 1.5% per annum to the extent
lawful. Any interest paid on this Note shall be increased to the extent
necessary to pay Additional Amounts as set forth herein.
2. Liquidated Damages. Pursuant to the Registration Rights
Agreement between the Company and the Initial Purchasers on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 13 1/4% Senior Notes due
2008 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full.
3. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes
A-5
imposed or levied by or on behalf of The Netherlands or any jurisdiction in
which the Company or any Surviving Entity is organized or is otherwise resident
for tax purposes or any political subdivision thereof or any authority having
power to tax therein or any jurisdiction from or through which payment is made
(each a "Relevant Taxing Jurisdiction"), unless the withholding or deduction of
such Taxes is then required by law. If any deduction or withholding for, or on
account of, any Taxes of any Relevant Taxing Jurisdiction, shall at any time be
required on any payments made by the Company with respect to the Notes,
including payments of principal, redemption price, interest or premium, the
Company will pay such additional amounts (the "Additional Amounts") as may be
necessary in order that the net amounts received in respect of such payments by
the Holders of the Notes or the Trustee, as the case may be, after such
withholding or deduction, equal the respective amounts which would have been
received in respect of such payments in the absence of such withholding or
deduction; except that no such Additional Amounts will be payable with respect
to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
4. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in dollars or in such other coin or
currency of the United States of America that at the time of payment is legal
A-6
tender for payment of public and private debts. Immediately available funds for
the payment of the principal of (and premium, if any), interest, Additional
Amounts, if any, and Liquidated Damages, if any, on this Note due on any
Interest Payment Date, Maturity Date, Redemption Date or other repurchase date
will be made available to the Paying Agent to permit the Paying Agent to pay
such funds to the Holders on such respective dates.
5. Paying Agent and Registrar. Initially, United States Trust
Company of New York will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture,
dated as of December 3, 1998 (the "Indenture"), between the Company and United
States Trust Company of New York (the "Trustee"). This Note is one of a duly
authorized issue of Initial Notes of the Company designated as its 13 1/4%
Senior Notes due 2008 (the "Initial Notes"). The Notes include the Initial Notes
and the Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code 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 Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and the
TIA for a statement of them. The Notes are not secured by any of the assets of
the Company except to the limited extent provided for by the Escrow Agreement,
and will become general unsecured obligations of the Company upon disbursement
in full of the funds in the Escrow Account. The Notes are limited in aggregate
principal amount to $150,000,000 subject to the terms of the Indenture. Each
Holder, by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to time.
7. Ranking. The Notes will be general unsecured (except to the
extent provided for by the Escrow Agreement) obligations of the Company and will
rank senior in right of payment to all future indebtedness of the Company that
is, by its terms or by the terms of the agreement or instrument governing such
indebtedness, expressly subordinated in right of payment to the Notes and pari
passu in right of payment with all existing and future senior indebtedness of
the Company.
8. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after May 15, 2003 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad ) (and if, and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) or, in the case of Definitive Notes, mailed by first-class
mail to each Holder's registered address (and, if, and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such
A-7
Stock Exchange shall so require, published in a newspaper having a general
circulation in Luxembourg (which is expected to be the Luxemburger Wort)), at
the redemption prices (expressed as a percentage of principal amount) set forth
below, plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the applicable Redemption Date (and in the case
of Definitive Notes, subject to the right of Holders of record on the relevant
record date to receive interest and Additional Amounts, if any, and Liquidated
Damages, if any, due on the relevant interest payment date in respect thereof),
if redeemed during the twelve-month period beginning on May 15 of each of the
years indicated below:
Redemption
Year Price
2003............................................... 106.625%
2004............................................... 104.417
2005............................................... 102.208
2006 and thereafter................................ 100.000%
In addition, at any time on or prior to November 15, 2001, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 113 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, with the Net Cash
Proceeds (as defined in the Indenture) of one or more Public Equity Offerings
(as defined in the Indenture) received by, or invested in, the Company; provided
that, in each case, at least 65% of the aggregate original principal amount of
the Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that notice of any such redemption must be
given within 30 days of the date of the closing of any such Public Equity
Offering.
9. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date fixed by the Company for redemption (a "Tax Redemption Date"), and, all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated thereunder) of The
Netherlands (or any political subdivision or taxing authority of The
Netherlands) affecting taxation which becomes effective on or after the Issue
Date, or (ii) any change in position regarding the application, administration
or any new or different interpretation of such laws, treaties, regulations or
rulings (including a holding, judgment or order by a court of competent
jurisdiction), which change, amendment, application or interpretation becomes
effective on or after the Issue Date, the Company is, or on the next Interest
Payment Date would be, required to pay Additional Amounts, and the Company
determines that such payment obligation cannot be avoided by the Company taking
reasonable measures. Notwithstanding the foregoing, no such notice of redemption
shall be given earlier than 90 days prior to the earliest date on which the
Company would be obligated
A-8
to make such payment or withholding if a payment in respect of the Notes were
then due. Prior to the publication or, where relevant, mailing of any notice of
redemption of the Notes pursuant to the foregoing, the Company will deliver to
the Trustee an opinion of an independent tax counsel of recognized standing to
the effect that the circumstances referred to above exist. The Trustee shall
accept such opinion as sufficient evidence of the satisfaction of the conditions
precedent described above, in which event it shall be conclusive and binding on
the Holders.
10. Notice of Redemption. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date by
publishing in a leading newspaper having a general circulation in New York
(which is expected to be The Wall Street Journal) and in Amsterdam (which is
expected to be Het Financieele Dagblad ) (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, a newspaper having a general circulation in Luxembourg (which
is expected to be the Luxemburger Wort)) or in the case of Definitive Notes,
mailed to Holders by first-class mail at their respective addresses as they
appear on the registration books of the Registrar (and, if and so long as the
Notes are listed on the Luxembourg Stock Exchange and the rules of such Stock
Exchange shall so require, published in a newspaper having a general circulation
in Luxembourg (which is expected to be the Luxemburger Wort)). Notes in
denominations of $1,000 may be redeemed only in whole. The Trustee may select
for redemption portions (equal to $1,000 or any integral multiple thereof) of
the principal of Notes that have denominations larger than $1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 aggregate principal amount and integral multiples thereof)
of the Notes on the Change of Control Payment Date at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, thereon to the date of repurchase plus Additional Amounts, if any, and
Liquidated Damages, if any, to the date of repurchase (and in the case of
Definitive Notes, subject to the right of Holders of record on the relevant
record date to receive interest and Liquidated Damages, if any, due on the
relevant interest payment date and Additional Amounts, if any, in respect
thereof). Holders of Notes that are subject to an offer to purchase will receive
a Change of Control Offer from the Company prior to any related Change of
Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
12. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds $5.0 million, the Company
will be obligated, within 30 Business Days thereafter, to make an offer to
purchase the maximum principal amount of
A-9
Notes, that is an integral multiple of $1,000, that may be purchased out of the
Excess Proceeds at an offer price in cash in an amount equal to 100% of the
aggregate principal amount thereof, plus accrued and unpaid interest thereon,
plus Additional Amounts, if any, and Liquidated Damages, if any, to the date
fixed for the closing of such offer (and, in the case of Definitive Notes,
subject to the right of a Holder of record on the relevant record date to
receive interest and Liquidated Damages, if any, due on the relevant interest
payment date and Additional Amounts, if any, in respect thereof). If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; provided, however,
that no Notes of $1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. Denominations; Form. The Global Notes are in registered
global form, without coupons, in denominations of $1,000 and integral multiples
of $1,000.
14. Persons Deemed Owners. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
15. Unclaimed Funds. If funds for the payment of principal,
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. 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.
A-10
19. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
20. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
23. Authentication. This Note shall not be valid
until the Trustee or authenticating agent signs the certificate
of authentication on this Note.
24. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
A-11
26. Governing Law The Indenture and the Notes shall
be governed by and construed in accordance with the internal laws
of the State of New York.
A-12
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
$ . The following decreases/increases in the principal amount at maturity
of this Note have been made:
Total
Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
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----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
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A-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: $
Date:_____________ Your Signature:________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program
(or other signature guarantor program reasonably acceptable to the
Trustee)
A-14
EXHIBIT B
TO THE INDENTURE
[FORM OF FACE OF INITIAL DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR
OTHER SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF (1)
REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING
THIS SECURITY IN AN "OFFSHORE TRANSACTION" PURSUANT TO RULE 904 OF REGULATION S,
(2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR SUCH
SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(k) UNDER THE SECURITIES ACT OR
ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE DATE
HEREOF (OR OF ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE"), OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY, (B) PURSUANT
TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT OCCUR
OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) AGREES THAT IT WILL
B-1
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY AND THE TRUSTEE SHALL
HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER (I) PURSUANT TO CLAUSE
(D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND (II) IN EACH OF THE
FOREGOING CASES, TO REQUIRE THAT A CERTIFICATION OR TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE, THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE
HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS
"OFFSHORE TRANSACTION," "UNITED STATES" AND "U.S. PERSON" HAVE THE MEANINGS
GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES ACT.
B-2
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
CUSIP NO.: [ ]
[If Regulation S Security - CINS Number _________]
No.____ $____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any successor corporation), for value received promises to pay
______________, or registered assigns, upon surrender hereof the principal sum
of __________________ dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing May
15, 1999
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note
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 Note to be
signed manually or by facsimile by its duly authorized officers.
B-3
VERSATEL TELECOM INTERNATIONAL
N.V.,
by
-------------------------
Name: R. Xxxx Xxxxx
Title: Managing Director
by
-------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee,
by
-------------------------
Name:
Title:
Dated:
B-4
[FORM OF REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 13 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each May 15 and November 15, or if any such day is not a Business Day on the
next succeeding Business Day, commencing May 15, 1999 to the Holder hereof.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from December 3, 1998. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods), on any Additional Amounts, and on any Liquidated Damages, from time to
time on demand at the rate borne by the Notes plus 1.5% per annum to the extent
lawful. Any interest paid on this Note shall be increased to the extent
necessary to pay Additional Amounts as set forth herein.
2. Liquidated Damages. Pursuant to the Registration Rights
Agreement between the Company and the Initial Purchasers on behalf of Holders of
the Initial Notes, the Company has agreed to use its reasonable best efforts to
consummate an exchange offer pursuant to which the Holder of this Note shall
have the right to exchange this Note for the Company's 13 1/4% Senior Notes due
2008 (the "Exchange Notes"), which have then been registered under the
Securities Act, in like principal amount and having substantially identical
terms in all material respects as the Initial Notes. The Holders shall be
entitled to receive payment of additional interest ("Liquidated Damages") in the
event such exchange offer is not consummated and in certain other events,
subject, in each case, to certain conditions, all pursuant to and in accordance
with the terms of the Registration Rights Agreement. Liquidated Damages which
may be payable pursuant to the Registration Rights Agreement shall be payable in
the same manner as set forth herein with respect to the stated interest. The
provisions of the Registration Rights Agreement relating to such Liquidated
Damages are incorporated herein by reference and made a part hereof as if set
forth herein in full.
3. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present
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or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
B-6
4. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date immediately preceding the Interest
Payment Date for such interest. Holders must surrender Notes to a Paying Agent
to collect principal payments. The Company shall pay principal and interest in
dollars or in such other coin or currency of the United States of America that
at the time of payment is legal tender for payment of public and private debts;
provided, however, that with respect to any payment of principal, interest,
Additional Amounts, if any, and Liquidated Damages, if any, in excess of
$100,000 to any payee or group of related payees, such payment will be made, at
the option of the Holder hereof, by wire transfer of same day funds to the
Paying Agent, who in turn will wire such funds to the Holder hereof or to such
individuals as the Holder hereof may in writing to the Paying Agent direct;
provided that the Paying Agent has received written wire transfer instructions
at least fifteen days prior to the date of any such payment.
5. Paying Agent and Registrar. Initially, United States Trust
Company of New York will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.
6. Indenture. The Company issued the Notes under an Indenture,
dated as of December 3, 1998 (the "Indenture"), between the Company and United
States Trust Company of New York (the "Trustee"). This Note is one of a duly
authorized issue of Initial Notes of the Company designated as its 13 1/4%
Senior Notes due 2008 (the "Initial Notes"). The Notes include the Initial Notes
and the Exchange Notes issued in exchange for the Initial Notes pursuant to the
Indenture. The terms of the Notes include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939
(15 U.S. Code 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 Notes are subject
to all such terms, and Holders of Notes are referred to the Indenture and the
TIA for a statement of them. The Notes are not secured by any of the assets of
the Company except to the limited extent provided for by the Escrow Agreement,
and will become general unsecured obligations of the Company upon disbursement
in full of the funds in the Escrow Account. The Notes are limited in aggregate
principal amount to $150,000,000 subject to the terms of the Indenture. Each
Holder, by accepting a Note, agrees to be bound by all of the terms and
provisions of the Indenture, as the same may be amended from time to time.
7. Ranking. The Notes will be general unsecured (except to the
extent provided for by the Escrow Agreement) obligations of the Company and will
rank senior in right of payment to all future indebtedness of the Company that
is, by its terms or by the terms of the agreement or instrument governing such
indebtedness, expressly subordinated in right of payment to the Notes and pari
passu in right of payment with all existing and future senior indebtedness of
the Company.
B-7
8. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after May 15, 2003 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad) (and if, and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) and mailed by first-class mail to each Holder's registered
address), at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest, Additional Amounts,
if any, and Liquidated Damages, if any, to the applicable Redemption Date (and,
subject to the right of Holders of record on the relevant record date to receive
interest and Additional Amounts, if any, and Liquidated Damages, if any, due on
the relevant interest payment date in respect thereof), if redeemed during the
twelve-month period beginning on May 15 of each of the years indicated below:
Redemption
Year Price
2003.............................................. 106.625%
2004.............................................. 104.417
2005.............................................. 102.208
2006 and thereafter............................... 100.000%
In addition, at any time on or prior to November 15, 2001, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 113 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, subject to the right of
Holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due to the relevant interest payment date and Additional
Amounts, if any, in respect thereof, with the Net Cash Proceeds (as defined in
the Indenture) of one or more Public Equity Offerings (as defined in the
Indenture) received by, or invested in, the Company; provided that, in each
case, at least 65% of the aggregate original principal amount of the Notes
remains outstanding immediately after the occurrence of such redemption; and
provided, further, that notice of any such redemption must be given within 30
days of the date of the closing of any such Public Equity Offering.
9. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
date fixed by the Company for redemption (a "Tax Redemption Date"), and all
Additional Amounts, if any, then due and which will become due on the Tax
Redemption Date as a result of the redemption or otherwise, if the Company
determines that, as a result of (i) any change in, or amendment to, the laws or
treaties (or any regulations or rulings promulgated
B-8
thereunder) of The Netherlands (or any political subdivision or taxing authority
of The Netherlands) affecting taxation which becomes effective on or after the
Issue Date, or (ii) any change in position regarding the application,
administration or any new or different interpretation of such laws, treaties,
regulations or rulings (including a holding, judgment or order by a court of
competent jurisdiction), which change, amendment, application or interpretation
becomes effective on or after the Issue Date, the Company is, or on the next
Interest Payment Date would be, required to pay Additional Amounts,
and the Company determines that such payment obligation cannot be avoided by the
Company taking reasonable measures. Notwithstanding the foregoing, no such
notice of redemption shall be given earlier than 90 days prior to the earliest
date on which the Company would be obligated to make such payment or withholding
if a payment in respect of the Notes were then due. Prior to the publication or,
where relevant, mailing of any notice of redemption of the Notes pursuant to the
foregoing, the Company will deliver to the Trustee an opinion of an independent
tax counsel of recognized standing to the effect that the circumstances referred
to above exist. The Trustee shall accept such opinion as sufficient evidence of
the satisfaction of the conditions precedent described above, in which event it
shall be conclusive and binding on the Holders.
10. Notice of Redemption. Notice of redemption will be given
at least 30 days but not more than 60 days before the Redemption Date by
publishing in a leading newspaper having a general circulation in New York
(which is expected to be The Wall Street Journal) and in Amsterdam (which is
expected to be Het Financieele Dagblad ) (and, if and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, a newspaper having a general circulation in Luxembourg (which
is expected to be the Luxemburger Wort)) and mailed to Holders by first-class
mail at their respective addresses as they appear on the registration books of
the Registrar). Notes in denominations of $1,000 may be redeemed only in whole.
The Trustee may select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
Additional Amounts, if any, or Liquidated Damages, if any, and the only right of
the Holders of such Notes will be to receive payment of the Redemption Price.
11. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 aggregate principal amount and integral multiples thereof)
of the Notes on the Change of Control Payment Date at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, thereon to the date of repurchase, plus, Additional Amounts, if any,
and Liquidated Damages,
B-9
if any, to the date of repurchase (and, subject to the right of Holders of
record on the relevant record date to receive interest and Liquidated Damages,
if any, due on the relevant interest payment date and Additional Amounts, if
any, in respect thereof). Holders of Notes that are subject to an offer to
purchase will receive a Change of Control Offer from the Company prior to any
related Change of Control Payment Date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
appearing below.
12. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds $5.0 million, the Company
will be obligated, within 30 Business Days thereafter, to make an offer to
purchase the maximum principal amount of Notes, that is an integral multiple of
$1,000, that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to 100% of the aggregate principal amount thereof, plus
accrued and unpaid interest thereon, plus, Additional Amounts, if any, and
Liquidated Damages, if any, to the date fixed for the closing of such offer
(and, subject to the right of a Holder of record on the relevant record date to
receive interest and Liquidated Damages, if any, due on the relevant interest
payment date and Additional Amounts, if any, in respect thereof). If the
aggregate principal amount of Notes surrendered by Holders thereof exceeds the
amount of Excess Proceeds, subject to applicable law, the Trustee shall select
the Notes to be redeemed in accordance with the Indenture; provided, however,
that no Notes of $1,000 or less shall be purchased in part. Holders of Notes
that are the subject of an offer to purchase will receive an Asset Sale Offer
from the Company prior to any related purchase date and may elect to have such
Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
13. Denominations; Form. The Definitive Notes are in bearer
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000.
14. Persons Deemed Owners. The Holder of this Note shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.
15. Unclaimed Funds. If funds for the payment of principal,
interest, Additional Amounts or Liquidated Damages remain unclaimed for two
years, the Trustee and the Paying Agents will repay the funds to the Company at
its written request. After that, all liability of the Trustee and such Paying
Agents with respect to such funds shall cease.
16. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
17. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented
B-10
with the written consent of the Holders of at least a majority in principal
amount of the Notes then outstanding, and any existing Default or Event of
Default or compliance with any provision of the Indenture or the Notes may be
waived with the consent of the Holders of a majority in principal amount of the
Notes then outstanding.
18. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. 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.
19. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
20. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest, Additional Amounts, if any,
and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
21. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
22. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
B-11
23. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
24. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
25. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause CUSIP numbers to be printed on the Notes immediately prior to the
qualification of the Indenture under the TIA as a convenience to the Holders of
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes and reliance may be placed only on the other identification
numbers printed hereon.
26. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
B-12
-----------------------------------------------------------
ASSIGNMENT FORM
To assign this Note fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Company. The agent may substitute another to act
for him.
----------------------------------------------------------------------
Date: _____________ Your Signature: ______________________
----------------------------------------------------------------------
Sign exactly as your name appears on the other side of this Note.
B-13
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: $
Date:_____________ Your Signature:________________
(Sign exactly as your name appears on the other
side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
B-14
EXHIBIT C
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC") TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER REPRESENTATIVE OF
DTC AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
HEREON 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 SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.6 OF THE INDENTURE PURSUANT TO WHICH THEY WERE ISSUED.
C-1
THIS NOTE IS A GLOBAL NOTE WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
CUSIP No:
No.____ $____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any successor corporation), for value received promises to pay to Cede
& Co. or registered assigns upon surrender hereof the principal sum indicated on
Schedule A hereof, on May 15, 2008.
Interest Payment Dates: May 15 and November 15, commencing May
15, 1999
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note
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 Note to be
signed manually or by facsimile by its duly authorized officers.
C-2
VERSATEL TELECOM INTERNATIONAL
N.V.,
by
-----------------------------
Name:
Title:
by
-----------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee,
by _________________________
Name:
Title:
Dated:
C-3
[Form of REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 13 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each May 15 and November 15, or if any such day is not a Business Day on the
next succeeding Business Day, commencing May 15, 1999 to the Holder hereof.
Notwithstanding any exchange of this Note for a Definitive Note during the
period starting on a Record Date relating to such Definitive Note and ending on
the immediately succeeding Interest Payment Date, the interest due on such
Interest Payment Date shall be payable to the Person in whose name this Global
Note is registered at the close of business on the Record Date for such
interest. Interest on the Notes will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from December 3, 1998.
Interest will be computed on the basis of a 360-day year of twelve 30-day
months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods) and on any Additional Amounts, from time to time on demand at the rate
borne by the Notes plus 1.5% per annum to the extent lawful. Any interest paid
on this Note shall be increased to the extent necessary to pay Additional
Amounts as set forth herein.
2. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would
C-4
have been received in respect of such payments in the absence of such
withholding or deduction; except that no such Additional Amounts will be payable
with respect to:
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Person in whose name this Note is
registered at the close of business on the Record Date for such interest.
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company shall pay principal and interest in dollars or in such other coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts. Immediately available funds for
the payment of the principal of (and premium, if any), interest and Additional
Amounts, if any, on this Note due on any Interest Payment Date, Maturity Date,
Redemption Date or other repurchase date will be made available to the Paying
Agent to permit the Paying Agent to pay such funds to the Holders on such
respective dates.
C-5
4. Paying Agent and Registrar. Initially, United States Trust
Company of New York will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture,
dated as of December 3, 1998 (the "Indenture"), between the Company and United
States Trust Company of New York (the "Trustee"). This Note is one of a duly
authorized issue of Exchange Notes of the Company designated as its 13 1/4%
Senior Notes due 2008 (the "Exchange Notes"). The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code 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 Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and the TIA for a statement of them. The Notes are
not secured by any of the assets of the Company except to the limited extent
provided for by the Escrow Agreement, and will become general unsecured
obligations of the Company upon disbursement in full of the funds in the Escrow
Account. The Notes are limited in aggregate principal amount to $150,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
6. Ranking. The Notes will be general unsecured (except to the
extent provided for by the Escrow Agreement) obligations of the Company and will
rank senior in right of payment to all future indebtedness of the Company that
is, by its terms or by the terms of the agreement or instrument governing such
indebtedness, expressly subordinated in right of payment to the Notes and pari
passu in right of payment with all existing and future senior indebtedness of
the Company.
7. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after May 15, 2003 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad ) (and if, and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) or, in the case of Definitive Notes, mailed by first-class
mail to each Holder's registered address (and, if, and so long as the Notes are
listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange
shall so require, published in a newspaper having a general circulation in
Luxembourg (which is expected to be the Luxemburger Wort)), at the redemption
prices (expressed as a percentage of principal amount) set forth below, plus
accrued and unpaid interest, Additional Amounts, if any, and Liquidated Damages,
if any, to the applicable Redemption Date (and in the case of Definitive Notes,
subject to the right of
C-6
Holders of record on the relevant record date to receive interest and Additional
Amounts, if any, due on the relevant interest payment date in respect thereof),
if redeemed during the twelve-month period beginning on May 15 of each of the
years indicated below:
Redemption
Year Price
2003................................................... 106.625%
2004................................................... 104.417
2005................................................... 102.208
2006 and thereafter.................................... 100.000%
In addition, at any time on or prior to November 15, 2001, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 113 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, with the Net Cash
Proceeds (as defined in the Indenture) of one or more Public Equity Offerings
(as defined in the Indenture) received by, or invested in, the Company; provided
that, in each case, at least 65% of the aggregate original principal amount of
the Notes remains outstanding immediately after the occurrence of such
redemption; and provided, further, that notice of any such redemption must be
given within 30 days of the date of the closing of any such Public Equity
Offering.
8. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof to the date fixed by the Company for redemption (a "Tax Redemption
Date") plus accrued and unpaid interest and all Additional Amounts, if any, then
due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Netherlands (or any political subdivision or
taxing authority of The Netherlands) affecting taxation which becomes effective
on or after the Issue Date, or (ii) any change in position regarding the
application, administration or any new or different interpretation of such laws,
treaties, regulations or rulings (including a holding, judgment or order by a
court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the Issue Date, the Company is, or
on the next Interest Payment Date would be, required to pay Additional Amounts,
and the Company determines that such payment obligation cannot be avoided by the
Company taking reasonable measures. Notwithstanding the foregoing, no such
notice of redemption shall be given earlier than 90 days prior to the earliest
date on which the Company would be obligated to make such payment or withholding
if a payment in respect of the
C-7
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
standing to the effect that the circumstances referred to above exist. The
Trustee shall accept such opinion as sufficient evidence of the satisfaction of
the conditions precedent described above, in which event it shall be conclusive
and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Amsterdam (which is expected to
be Het Financieele Dagblad ) (and, if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such Stock Exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) or in the case of Definitive Notes, mailed to Holders by
first-class mail at their respective addresses as they appear on the
registration books of the Registrar (and, if and so long as the Notes are listed
on the Luxembourg Stock Exchange and the rules of such Stock Exchange shall so
require, published in a newspaper having a general circulation in Luxembourg
(which is expected to be the Luxemburger Wort)). Notes in denominations of
$1,000 may be redeemed only in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of the principal of
Notes that have denominations larger than $1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
or Additional Amounts, if any, and the only right of the Holders of such Notes
will be to receive payment of the Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 aggregate principal amount and integral multiples thereof)
of the Notes on the Change of Control Payment Date at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, thereon to the date of repurchase, plus, Additional Amounts, if any,
to the date of repurchase (and in the case of Definitive Notes, subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date and Additional Amounts, if any, in respect
thereof). Holders of Notes that are subject to an offer to purchase will receive
a Change of Control Offer from the Company prior to any related Change of
Control Payment Date and may elect to have such Notes purchased by completing
the form entitled "Option of Holder to Elect Purchase" appearing below.
11. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds $5.0 million, the Company
will be obligated, within 30 Business Days thereafter, to make an offer to
purchase the
C-7
maximum principal amount of Notes, that is an integral multiple of $1,000, that
may be purchased out of the Excess Proceeds at an offer price in cash in an
amount equal to 100% of the aggregate principal amount thereof, plus accrued and
unpaid interest thereon, plus, Additional Amounts, if any, to the date fixed for
the closing of such offer (and, in the case of Definitive Notes, subject to the
right of a Holder of record on the relevant record date to receive interest due
on the relevant interest payment date and Additional Amounts, if any, and
Liquidated Damages, if any, in respect thereof). If the aggregate principal
amount of Notes surrendered by Holders thereof exceeds the amount of Excess
Proceeds, subject to applicable law, the Trustee shall select the Notes to be
redeemed in accordance with the Indenture; provided, however, that no Notes of
$1,000 or less shall be purchased in part. Holders of Notes that are the subject
of an offer to purchase will receive an Asset Sale Offer from the Company prior
to any related purchase date and may elect to have such Notes purchased by
completing the form entitled "Option of Holders to Elect Purchase" appearing
below.
12. Denominations; Form. The Global Notes are in registered
global form, without coupons, in denominations of $1,000 and integral multiples
of $1,000.
13. Persons Deemed Owners. The registered Holder of this Note
shall be treated as the owner of it for all purposes, subject to the terms of
the Indenture.
14. Unclaimed Funds. If funds for the payment of principal,
interest or Additional Amounts remain unclaimed for two years, the Trustee and
the Paying Agents will repay the funds to the Company at its written request.
After that, all liability of the Trustee and such Paying Agents with respect to
such funds shall cease.
15. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
("Covenant Defeasance"), in each case upon satisfaction of certain conditions
specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important
C-9
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
18. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest and Additional Amounts, if
any, and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid
until the Trustee or authenticating agent signs the
certificate of authentication on this Note.
23. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as
defined therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause
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CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
25. Governing Law The Indenture and the Notes shall be
governed by and construed in accordance with the internal laws of the State of
New York.
C-11
SCHEDULE A
SCHEDULE OF PRINCIPAL AMOUNT
The initial principal amount at maturity of this Note shall be
$ . The following decreases/increases in the principal amount at maturity
of this Note have been made:
Total
Principal
Amount at Notation
Decrease in Increase in Maturity Made by
Date of Principal Principal Following such or on
Decrease/ Amount at Amount at Decrease/ Behalf of
Increase Maturity Maturity Increase Trustee
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this
Note purchased by the Company pursuant to Section 4.15 or
Section 4.16 of the Indenture, state the amount: $
Date:_____________ Your Signature:___________________
(Sign exactly as your name appears on the
other side of this Note)
Signature Guarantee: _____________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
C-13
EXHIBIT D
TO THE INDENTURE
[FORM OF FACE OF EXCHANGE DEFINITIVE NOTE]
THIS NOTE IS A DEFINITIVE NOTE WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO.
CUSIP No.
No. $
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
No.____ $____________
VERSATEL TELECOM INTERNATIONAL N.V., a limited liability
company organized under the laws of The Netherlands (the "Company", which term
includes any successor corporation), for value received promises to pay to
____________, or registered assigns, upon surrender hereof the principal sum of
___________ Dollars, on May 15, 2008.
Interest Payment Dates: May 15 and November 15 commencing May
15, 1999
Record Dates: May 1 and November 1
Reference is made to the further provisions of this Note
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 Note to be
signed manually or by facsimile by its duly authorized officers.
D-1
VERSATEL TELECOM INTERNATIONAL
N.V.,
by
-----------------------------
Name:
Title:
by
-----------------------------
Name:
Title:
This is one of the Notes
referred to in the within-mentioned
Indenture:
UNITED STATES TRUST COMPANY OF NEW YORK, as Trustee,
by _________________________
Name:
Title:
Dated:
D-2
[Form of REVERSE]
VERSATEL TELECOM INTERNATIONAL N.V.
13 1/4% Senior Note
due 2008
1. Interest. VERSATEL TELECOM INTERNATIONAL N.V., a company
organized under the laws of The Netherlands (the "Company"), promises to pay
interest on the principal amount of this Note at the rate and in the manner
specified below. Interest on the Notes will accrue at 13 1/4% per annum on the
principal amount then outstanding, and be payable semi-annually in arrears on
each May 15 and November 15, or if any such day is not a Business Day on the
next succeeding Business Day, commencing May 15, 1999 to the Holder hereof.
Interest on the Notes will accrue from the most recent date to which interest
has been paid or, if no interest has been paid, from December 3, 1998. Interest
will be computed on the basis of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and on
overdue installments of interest (without regard to any applicable grace
periods), and on any Additional Amounts, from time to time on demand at the rate
borne by the Notes plus 1.5% per annum to the extent lawful. Any interest paid
on this Note shall be increased to the extent necessary to pay Additional
Amounts as set forth herein.
2. Additional Amounts. All payments made by the Company on the
Notes will be made without withholding or deduction for, or on account of, any
present or future Taxes imposed or levied by or on behalf of The Netherlands or
any jurisdiction in which the Company or any Surviving Entity is organized or is
otherwise resident for tax purposes or any political subdivision thereof or any
authority having power to tax therein or any jurisdiction from or through which
payment is made (each a "Relevant Taxing Jurisdiction"), unless the withholding
or deduction of such Taxes is then required by law. If any deduction or
withholding for, or on account of, any Taxes of any Relevant Taxing
Jurisdiction, shall at any time be required on any payments made by the Company
with respect to the Notes, including payments of principal, redemption price,
interest or premium, the Company will pay such additional amounts (the
"Additional Amounts") as may be necessary in order that the net amounts received
in respect of such payments by the Holders of the Notes or the Trustee, as the
case may be, after such withholding or deduction, equal the respective amounts
which would have been received in respect of such payments in the absence of
such withholding or deduction; except that no such Additional Amounts will be
payable with respect to:
D-3
(a) any payments on a Note held by or on behalf of a Holder or
beneficial owner who is liable for such Taxes in respect of such Note
by reason of the Holder or beneficial owner having some connection with
the Relevant Taxing Jurisdiction (including being a citizen or resident
or national of, or carrying on a business or maintaining a permanent
establishment in, or being physically present in, the Relevant Taxing
Jurisdiction) other than by the mere holding of such Note or
enforcement of rights thereunder or the receipt of payments in respect
thereof;
(b) any Taxes that are imposed or withheld as a result of a
change in law after the Issue Date where such withholding or imposition
is by reason of the failure of the Holder or beneficial owner of the
Note to comply with any request by the Company to provide information
concerning the nationality, residence or identity of such Holder or
beneficial owner or to make any declaration or similar claim or satisfy
any information or reporting requirement, which is required or imposed
by a statute, treaty, regulation or administrative practice of the
Relevant Taxing Jurisdiction as a precondition to exemption from all or
part of such Taxes;
(c) except in the case of the winding up of the Company, any
Note presented for payment (where presentation is required) in the
Relevant Taxing Jurisdiction; or
(d) any Note presented for payment (where presentation is
required) more than 30 days after the relevant payment is first made
available for payment to the Holder.
Such Additional Amounts will also not be payable where, had
the beneficial owner of the Note been the Holder of the Note, he would not have
been entitled to payment of Additional Amounts by reason of clauses (a) to (d)
inclusive above.
3. Method of Payment. The Company shall pay interest on the
Notes (except defaulted interest) to the Persons who are the registered Holders
at the close of business on the Record Date for such interest. Holders must
surrender Notes to a Paying Agent to collect principal payments. The Company
shall pay principal and interest in dollars or in such other coin or currency of
the United States of America that at the time of payment is legal
tender for payment of public and private debts. Immediately available funds for
the payment of the principal of (and premium, if any), interest and Additional
Amounts, if any, and Liquidated Damages, if any, in excess of $100,000 to any
payee or group of related payees, such payment will be made, at the option of
the Holder hereof, by wire transfer of same day funds to the Paying Agent, who
in turn will wire such funds to the Holder hereof or to such individuals as the
Holder hereof may in writing to the Paying Agent direct; provided that the
Paying Agent has received written wire transfer instructions at least fifteen
days prior to the date of any such payment.
D-4
4. Paying Agent and Registrar. Initially, United States Trust
Company of New York will act as Paying Agent and Registrar. The Company may
change any Paying Agent, Registrar or co-Registrar without notice to the
Holders. The Company or any of its Subsidiaries may, subject to certain
exceptions, act in any such capacity.
5. Indenture. The Company issued the Notes under an Indenture,
dated as of December 3, 1998 (the "Indenture"), between the Company and United
States Trust Company of New York (the "Trustee"). This Note is one of a duly
authorized issue of Exchange Notes of the Company designated as its 13 1/4%
Senior Notes due 2008 (the "Exchange Notes"). The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939 (15 U.S. Code 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 Notes are subject to all such terms, and Holders of Notes
are referred to the Indenture and the TIA for a statement of them. The Notes are
not secured by any of the assets of the Company except to the limited extent
provided for by the Escrow Agreement, and will become general unsecured
obligations of the Company upon disbursement in full of the funds in the Escrow
Account. The Notes are limited in aggregate principal amount to $150,000,000
subject to the terms of the Indenture. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be amended from time to time.
6. Ranking. The Notes will be general unsecured (except to the
extent provided for by the Escrow Agreement) obligations of the Company and will
rank senior in right of payment to all future indebtedness of the Company that
is, by its terms or by the terms of the agreement or instrument governing such
indebtedness, expressly subordinated in right of payment to the Notes and pari
passu in right of payment with all existing and future senior indebtedness of
the Company.
7. Optional Redemption. The Notes will be redeemable, at the
Company's option, in whole or in part, on and after May 15, 2003 upon not less
than 30 nor more than 60 days' prior notice published in a leading newspaper
having a general circulation in New York (which is expected to be The Wall
Street Journal) and in Amsterdam (which is expected to be Het Financieele
Dagblad) (and if, and so long as the Notes are listed on the Luxembourg Stock
Exchange and the rules of such Stock Exchange shall so require, a newspaper
having a general circulation in Luxembourg (which is expected to be the
Luxemburger Wort)) and mailed by first-class mail to each Holder's registered
address), at the redemption prices (expressed as a percentage of principal
amount) set forth below, plus accrued and unpaid interest, Additional Amounts,
if any, to the applicable Redemption Date (and in the case of Definitive Notes,
subject to the right of Holders of record on the relevant record date to receive
interest and Additional Amounts, if any, and Liquidated Damages, if any, due on
the
D-5
relevant interest payment date in respect thereof), if redeemed during the
twelve-month period beginning on May 15 of each of the years indicated below:
Redemption
Year Price
2003....................................................... 106.625%
2004....................................................... 104.417
2005....................................................... 102.208
2006 and thereafter........................................ 100.000%
In addition, at any time on or prior to November 15, 2001, the
Company may, at its option, redeem up to 35% of the aggregate principal amount
of the Notes at a redemption price equal to 113 1/4% of the aggregate principal
amount thereof plus accrued and unpaid interest, Additional Amounts, if any, and
Liquidated Damages, if any, to the date of redemption, subject to the right of
Holders of record on the relevant record date to receive interest and Liquidated
Damages, if any, due to the relevant interest payment date and Additional
Amounts, if any, in respect thereof, with the Net Cash Proceeds (as defined in
the Indenture) of one or more Public Equity Offerings (as defined in the
Indenture) received by, or invested in, the Company; provided that, in each
case, at least 65% of the aggregate original principal amount of the Notes
remains outstanding immediately after the occurrence of such redemption; and
provided, further, that notice of any such redemption must be given within 30
days of the date of the closing of any such Public Equity Offering.
8. Special Tax Redemption. The Notes may be redeemed, at the
option of the Company in whole but not in part, at any time upon giving not less
than 30 nor more than 60 days' notice to the Holders (which notice shall be
irrevocable), at a redemption price equal to the aggregate principal amount
thereof to the date fixed by the Company for redemption (a "Tax Redemption
Date"), plus accrued and unpaid interest and all Additional Amounts, if any,
then due and which will become due on the Tax Redemption Date as a result of the
redemption or otherwise, if the Company determines that, as a result of (i) any
change in, or amendment to, the laws or treaties (or any regulations or rulings
promulgated thereunder) of The Netherlands (or any political subdivision or
taxing authority of The Netherlands) affecting taxation which becomes effective
on or after the Issue Date, or (ii) any change in position regarding the
application, administration or any new or different interpretation of such laws,
treaties, regulations or rulings (including a holding, judgment or order by a
court of competent jurisdiction), which change, amendment, application or
interpretation becomes effective on or after the Issue Date, the Company is, or
on the next Interest Payment Date would be, required to pay Additional Amounts,
and the Company determines that such payment obligation cannot be avoided by the
Company taking reasonable measures. Notwithstanding the foregoing, no such
notice of redemption shall be given earlier than 90 days prior to the earliest
date on which the Company would be obligated to make such payment or withholding
if a payment in respect of the
D-6
Notes were then due. Prior to the publication or, where relevant, mailing of any
notice of redemption of the Notes pursuant to the foregoing, the Company will
deliver to the Trustee an opinion of an independent tax counsel of recognized
standing to the effect that the circumstances referred to above exist. The
Trustee shall accept such opinion as sufficient evidence of the satisfaction of
the conditions precedent described above, in which event it shall be conclusive
and binding on the Holders.
9. Notice of Redemption. Notice of redemption will be given at
least 30 days but not more than 60 days before the Redemption Date by publishing
in a leading newspaper having a general circulation in New York (which is
expected to be The Wall Street Journal) and in Amsterdam (which is expected to
be Het Financieele Dagblad) (and, if and so long as the Notes are listed on the
Luxembourg Stock Exchange and the rules of such Stock Exchange shall so require,
a newspaper having a general circulation in Luxembourg (which is expected to be
the Luxemburger Wort)) and, mailed to Holders by first-class mail at their
respective addresses as they appear on the registration books of the Registrar).
Notes in denominations of $1,000 may be redeemed only in whole. The Trustee may
select for redemption portions (equal to $1,000 or any integral
multiple thereof) of the principal of Notes that have denominations larger than
$1,000.
Except as set forth in the Indenture, from and after any
Redemption Date, if monies for the redemption of the Notes called for redemption
shall have been deposited with the Paying Agent for redemption on such
Redemption Date, then, unless the Company defaults in the payment of such
Redemption Price, the Notes called for redemption will cease to bear interest,
or Additional Amounts, and the only right of the Holders of such Notes will be
to receive payment of the Redemption Price.
10. Change of Control Offer. Upon the occurrence of a Change
of Control, the Company will be required to make an offer to purchase all or any
part (equal to $1,000 aggregate principal amount and integral multiples thereof)
of the Notes on the Change of Control Payment Date at a purchase price in cash
equal to 101% of the aggregate principal amount thereof plus accrued and unpaid
interest, thereon to the date of repurchase, plus, Additional Amounts, if any,
and Liquidated Damages, if any, to the date of repurchase (and, subject to the
right of Holders of record on the relevant record date to receive interest due
on the relevant interest payment date and Additional Amounts, if any, and
Liquidated Damages, if any, in respect thereof). Holders of Notes that are
subject to an offer to purchase will receive a Change of Control Offer from the
Company prior to any related Change of Control Payment Date and may elect to
have such Notes purchased by completing the form entitled "Option of Holder to
Elect Purchase" appearing below.
11. Limitation on Disposition of Assets. When the aggregate
amount of Excess Proceeds from Asset Sales exceeds $5.0 million, the Company
will be obligated, within 30 Business Days thereafter, to make an offer to
purchase the maximum principal amount of Notes, that is an integral multiple of
$1,000, that may be purchased out of the Excess Proceeds at an offer price in
cash in an amount equal to
D-7
100% of the aggregate principal amount thereof, plus accrued and unpaid interest
thereon, plus Additional Amounts, if any, and Liquidated Damages, if any, to the
date fixed for the closing of such offer (and, subject to the right of a Holder
of record on the relevant record date to receive interest due on the relevant
interest payment date and Additional Amounts, if any, in respect thereof). If
the aggregate principal amount of Notes surrendered by Holders thereof exceeds
the amount of Excess Proceeds, subject to applicable law, the Trustee shall
select the Notes to be redeemed in accordance with the Indenture; provided,
however, that no Notes of $1,000 or less shall be purchased in part. Holders of
Notes that are the subject of an offer to purchase will receive an Asset Sale
Offer from the Company prior to any related purchase date and may elect to have
such Notes purchased by completing the form entitled "Option of Holders to Elect
Purchase" appearing below.
12. Denominations; Form. The Definitive Notes are in bearer
form, without coupons, in denominations of $1,000 and integral multiples of
$1,000.
13. Persons Deemed Owners. The Holder of this Note shall be
treated as the owner of it for all purposes, subject to the terms of the
Indenture.
14. Unclaimed Funds. If funds for the payment of principal,
interest or Additional Amounts remain unclaimed for two years, the Trustee and
the Paying Agents will repay the funds to the Company at its written request.
After that, all liability of the Trustee and such Paying Agents with respect to
such funds shall cease.
15. Legal Defeasance and Covenant Defeasance. The Company may
be discharged from its obligations under the Indenture and the Notes except for
certain provisions thereof ("Legal Defeasance"), and may be discharged from
their obligations to comply with certain covenants contained in the Indenture
and the Notes ("Covenant Defeasance"), in each case upon satisfaction of certain
conditions specified in the Indenture.
16. Amendment; Supplement; Waiver. Subject to certain
exceptions specified in the Indenture, the Indenture or the Notes may be amended
or supplemented with the written consent of the Holders of at least a majority
in principal amount of the Notes then outstanding, and any existing Default or
Event of Default or compliance with any provision of the Indenture or the Notes
may be waived with the consent of the Holders of a majority in principal amount
of the Notes then outstanding.
17. Restrictive Covenants. The Indenture imposes certain
covenants that, among other things, limit the ability of the Company and its
Restricted Subsidiaries to, incur additional Indebtedness, pay dividends or make
other distributions or investments, repurchase Equity Interests or make certain
other Restricted Payments, enter into certain consolidations or mergers or enter
into certain transactions with Affiliates and consummate certain mergers and
consolidations or sales of all or substantially all assets. The limitations are
subject to a number of important
D-8
qualifications and exceptions. The Company must annually report to the Trustee
on compliance with such limitations.
18. Successors. When a successor assumes all the obligations
of its predecessor under the Notes and the Indenture in accordance with the
terms of the Indenture, the predecessor will be released from those obligations.
19. Defaults and Remedies. If an Event of Default (other than
an Event of Default specified in Sections 6.1(h) or (i) of the Indenture) occurs
and is continuing, the Trustee or the Holders of at least 25% in principal
amount of the then outstanding Notes may declare all the Notes to be due and
payable immediately in the manner and with the effect provided in the Indenture.
Holders of Notes may not enforce the Indenture or the Notes except as provided
in the Indenture. The Trustee is not obligated to enforce the Indenture or the
Notes unless it has received indemnity satisfactory to it. The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Notes then outstanding to direct the
Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders of Notes notice of any continuing Default or Event of Default (except a
Default in payment of principal, premium, interest and Additional Amounts, if
any, and Liquidated Damages, if any, including an accelerated payment) if it
determines that withholding notice is in their interest.
20. Trustee Dealings with Company. The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, its Subsidiaries or
their respective Affiliates as if it were not the Trustee.
21. No Recourse Against Others. No stockholder, director,
officer, employee or incorporator, as such, of the Company shall have any
liability for any obligation of the Company under the Notes or the Indenture or
for any claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder of the Notes by accepting a Note waives and releases all
such liability. The waiver and release are part of the consideration for the
issuance of the Notes.
22. Authentication. This Note shall not be valid until the
Trustee or authenticating agent signs the certificate of authentication on this
Note.
23. Abbreviations and Defined Terms. Customary abbreviations
may be used in the name of a Holder of a Note 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). Unless otherwise
defined herein, terms defined in the Indenture are used herein as defined
therein.
24. CUSIP Numbers. Pursuant to a recommendation promulgated by
the Committee on Uniform Security Identification Procedures, the Company will
cause
D-9
CUSIP numbers to be printed on the Notes immediately prior to the qualification
of the Indenture under the TIA as a convenience to the Holders of the Notes. No
representation is made as to the accuracy of such numbers as printed on the
Notes and reliance may be placed only on the other identification numbers
printed hereon.
25. Governing Law. The Indenture and the Notes
shall be governed by and construed in accordance with the internal laws of the
State of New York.
D-10
*
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
I or we assign and transfer this Note to
(Print or type assignee's name, address and zip code)
(Insert assignee's social security or tax I.D. No.)
and irrevocably appoint agent to transfer this Note
on the books of the Company. The agent may substitute another to act
for him.
-----------------------------------------------------------
Date: _____________ Your Signature: ______________________
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Sign exactly as your name appears on the other side of this Note.
D-11
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the
Company pursuant to Section 4.15 or Section 4.16 of the Indenture, check the
appropriate box:
Section 4.15 [ ] Section 4.16 [ ]
If you want to elect to have only part of this Note purchased
by the Company pursuant to Section 4.15 or Section 4.16 of the Indenture, state
the amount: $
Date:_____________ Your Signature:___________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: ______________________________________
Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor program reasonably acceptable to the Trustee)
D-12
EXHIBIT E
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM U.S. GLOBAL
NOTE TO REGULATION S GLOBAL NOTE
(Transfers pursuant to Section 2.7(b)
of the Indenture)
VersaTel Telecom International N.V.
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
RE: 13 1/4% Senior Notes due 2008
(the "Notes"), of VersaTel Telecom International N.V.
Reference is hereby made to the Indenture dated as of December
3, 1998 (the "Indenture") between VersaTel Telecom International N.V. and United
States Trust Company of New York, as Trustee, Registrar and Paying Agent.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to U.S.$_________ (being any integral
multiple of U.S.$1,000) principal amount of Notes beneficially held through
interests in the U.S. Global Note (CUSIP No. _________) with DTC in the name of
_______(the "Transferor") account no. __. The Transferor hereby requests that on
[INSERT DATE] such beneficial interest in the U.S. Global Note be transferred or
exchanged for an interest in the Regulation S Global Note (CUSIP (CINS)No. ____)
in the same principal denomination and transfer to (account no. _________). If
this is a partial transfer, a minimum amount of U.S.$1,000 and any integral
multiple of U.S.$1,000 in excess thereof of the U.S. Global Note will remain
outstanding.
In connection with such request and in respect of such Notes
the Transferor does hereby certify that such transfer has been effected in
accordance with the transfer restrictions set forth in the Indenture and the
Notes and pursuant to and in accordance with Rule 903 or 904 of Regulation S
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and accordingly the Transferor further certifies that:
(A) (1) the offer of the Notes was not made to a person in the
United States;
E-1
(2) either (a) at the time the buy order 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 offshore securities market and neither the
Transferor nor any person acting on our behalf knows that the
transaction was prearranged with a buyer in the United States,
(3) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or 904(b) of
Regulation S, as applicable; and
(4) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act.
OR
(B) Such transfer is being made in accordance with Rule 144
under the Securities Act.
E-2
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company. Terms used in this certificate
and not otherwise defined in the Indenture have the meanings set forth in
Regulation S under the Securities Act.
Dated: _____________, ____
[Name of Transferor]
By:________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
E-3
EXHIBIT F
TO THE INDENTURE
FORM OF TRANSFER CERTIFICATE FOR TRANSFER FROM REGULATION S
GLOBAL NOTE TO U.S. GLOBAL NOTE
(Transfers pursuant to Section 2.7(c)
of the Indenture)
VersaTel Telecom International N.V.
c/o United States Trust Company of New York
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Corporate Trust Administration
Re: 13 1/4% Senior Notes due 2008 (the "Notes"), of
VersaTel Telecom International N.V.
Reference is hereby made to the Indenture dated as of December
3, 1998 (the "Indenture") between VersaTel Telecom International N.V. and United
States Trust Company of New York, as Trustee, Registrar and Paying Agent.
Capitalized terms used but not defined herein shall have the meanings given them
in the Indenture.
This letter relates to U.S.$__________ (being any integral
multiple of U.S.$1,000) principal amount of Notes beneficially held through
interests in the Regulation S Global Note (CUSIP (CINS) No. _________) with
[Euroclear] [Cedel] (Common Code No. _______) through DTC in the name of
_______________ (the "Transferor") [Euroclear] [Cedel] account no. ___. The
Transferor hereby requests that on [INSERT DATE] such beneficial interest in the
Regulation S Global Note be transferred or exchanged for an interest in the
U.S. Global Note (CUSIP No. _________) in the same principal denomination and
transfer to ______________ (DTC account no. ________). If this is a partial
transfer, a minimum of U.S.$1,000 and any integral multiple of U.S.$1,000 in
excess thereof of the Regulation S Global Note will remain outstanding.
In connection with such request, and in respect of such Notes,
the Transferor does hereby certify that such Notes are being transferred in
accordance with Rule 144A under the United States Securities Act of 1933, as
amended (the "Securities Act"), to a transferee that the Transferor reasonably
believes is purchasing the Notes for its own account or an account with respect
to which the transferee exercises sole investment discretion and the transferee
and any such account is a "qualified institutional buyer" within the meaning of
Rule 144A, in each case in a transaction meeting the requirements of Rule 144A
and in accordance with any applicable securities laws of any state of the United
States or any other jurisdiction.
F-1
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company.
Dated:_______________, ____
[Name of Transferor]
By:___________________________
Name:
Title:
Telephone No.:
Please print name and address (including zip code number)
F-2
