EXHIBIT 4.1
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ANTENNA TV S.A., as Issuer
and
THE BANK OF NEW YORK, as Trustee
INDENTURE
Dated as of June 18, 2001
(euro)250,000,000
9 3/4% Senior Notes due 2008
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TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions...................................................1
Section 1.02. Other Definitions............................................19
Section 1.03. Incorporation by Reference of Trust Indenture Act............21
Section 1.04. Rules of Construction........................................21
ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture...................22
Section 2.02. Execution and Authentication.................................22
Section 2.03. Registrar and Paying Agent...................................24
Section 2.04. Paying Agent to Hold Money in Trust..........................25
Section 2.05. Noteholder Lists.............................................25
Section 2.06. Transfer and Exchange........................................25
Section 2.07. Replacement Notes............................................27
Section 2.08. Outstanding Notes............................................27
Section 2.09. Temporary Notes..............................................28
Section 2.10. Cancellation.................................................28
Section 2.11. Defaulted Interest...........................................28
Section 2.12. Deposit of Moneys............................................29
Section 2.13. ISIN Numbers and Common Codes................................29
Section 2.14. Book-Entry Provisions for Global Notes.......................29
Section 2.15. Special Transfer Provisions..................................31
Section 2.16. Ranking of Notes Relative to Existing Notes..................33
Section 2.17. Issuance of Additional Notes.................................33
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee...........................................34
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Section 3.02. Selection by Trustee of Notes to Be Redeemed.................35
Section 3.03. Notice of Redemption.........................................35
Section 3.04. Effect of Notice of Redemption...............................36
Section 3.05. Deposit of Redemption Price..................................37
Section 3.06. Notes Redeemed in Part.......................................37
Section 3.07. Redemption...................................................37
ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.............................................39
Section 4.02. Provision of Financial Statements and Other Information......39
Section 4.03. Waiver of Stay, Extension or Usury Laws......................40
Section 4.04. Compliance Certificate.......................................41
Section 4.05. Taxes........................................................42
Section 4.06. Limitation on Additional Indebtedness........................42
Section 4.07. Limitation on Restricted Payments............................45
Section 4.08. Disposition of Proceeds of Asset Sales.......................47
Section 4.09. Limitation on Transactions with Affiliates...................50
Section 4.10. Limitations on Liens.........................................52
Section 4.11. Limitations on Investments, Loans and Advances...............52
Section 4.12. Limitation on Sale-Leaseback Transactions....................53
Section 4.13. Payments for Consent.........................................54
Section 4.14. Corporate Existence..........................................54
Section 4.15. Change of Control............................................54
Section 4.16. Maintenance of Office or Agency..............................57
Section 4.17. Payments of Additional Amounts...............................57
Section 4.18. Limitation on Dividends and Other Payment Restrictions
Affecting Subsidiaries.....................................60
Section 4.19. Limitation on Business Activities............................61
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.......61
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Section 5.02. Successor Person Substituted.................................62
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default............................................63
Section 6.02. Acceleration.................................................65
Section 6.03. Other Remedies...............................................65
Section 6.04. Waiver of Past Defaults and Events of Default................66
Section 6.05. Control by Majority..........................................66
Section 6.06. Limitation on Suits..........................................67
Section 6.07. Rights of Holders to Receive Payment.........................67
Section 6.08. Collection Suit by Trustee...................................67
Section 6.09. Trustee May File Proofs of Claim.............................68
Section 6.10. Priorities...................................................68
Section 6.11. Undertaking for Costs........................................69
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee............................................69
Section 7.02. Rights of Trustee............................................71
Section 7.03. Individual Rights of Trustee.................................73
Section 7.04. Trustee's Disclaimer.........................................73
Section 7.05. Notice of Defaults...........................................73
Section 7.06. Reports by Trustee to Holders................................73
Section 7.07. Compensation and Indemnity...................................74
Section 7.08. Replacement of Trustee.......................................75
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.....76
Section 7.10. Eligibility; Disqualification................................76
Section 7.11. Preferential Collection of Claims Against Company............77
Section 7.12. Paying Agents................................................77
Section 7.13. Appointment of Co-Trustee....................................78
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders...................................79
Section 8.02. With Consent of Holders......................................79
Section 8.03. Compliance with Trust Indenture Act..........................81
Section 8.04. Revocation and Effect of Consents............................81
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Section 8.05. Notation on or Exchange of Notes.............................82
Section 8.06. Trustee to Sign Amendments, etc..............................83
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture......................83
Section 9.02. Legal Defeasance.............................................84
Section 9.03. Covenant Defeasance..........................................84
Section 9.04. Conditions to Defeasance or Covenant Defeasance..............85
Section 9.05. Deposited Money and Euro Government Obligations
to Be Held in Trust; Other Miscellaneous Provisions........87
Section 9.06. Reinstatement................................................88
Section 9.07. Moneys Held by Paying Agent..................................88
Section 9.08. Moneys Held by Trustee.......................................88
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.................................89
Section 10.02. Notices......................................................89
Section 10.03. Communications by Holders with Other Holders.................91
Section 10.04. Certificate and Opinion as to Conditions Precedent...........91
Section 10.05. Statements Required in Certificate and Opinion...............91
Section 10.06. When Treasury Notes Disregarded..............................92
Section 10.07. Rules by Trustee and Agents..................................92
Section 10.08. Business Days; Legal Holidays................................92
Section 10.09. Governing Law................................................92
Section 10.10. Agent for Service; Submission to Jurisdiction;
Waiver of Immunities.......................................93
Section 10.11. Currency of Account; Conversion of Currency;
Foreign Exchange Restrictions..............................94
Section 10.12. No Adverse Interpretation of Other Agreements................97
Section 10.13. No Recourse Against Others...................................97
Section 10.14. Successors...................................................97
Section 10.15. Multiple Counterparts........................................97
Section 10.16. Table of Contents, Headings, etc.............................97
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Section 10.17. Separability.................................................97
Section 10.18. Waiver of Jury Trial.........................................98
EXHIBITS
Exhibit A. Form of Note ...............................................A-1
Exhibit B. Form of Legend for Global Notes ............................B-1
Exhibit C. Form of Certificate to Be Delivered in Connection
with Transfers to Non-QIB Accredited Investors..............C-1
Exhibit D. Form of Certificate to Be Delivered in Connection
with Transfers Pursuant to Regulation S.....................D-1
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
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310(a)(1).................................................. 7.10
(a)(2).................................................. 7.10
(a)(3).................................................. N.A.
(a)(4).................................................. N.A.
(a)(5).................................................. 7.10
(b)..................................................... 7.08; 7.10
(c)..................................................... N.A.
311(a)..................................................... 7.11
(b)..................................................... 7.11
(c)..................................................... N.A.
312(a)..................................................... 2.05
(b)..................................................... 10.03
(c)..................................................... 10.03
313(a)..................................................... 7.06
(b)..................................................... 7.06
(c)..................................................... 7.06; 10.02
(d)..................................................... 7.06; 10.02
314(a)..................................................... 4.02; 4.04; 10.02
(b)..................................................... N.A.
(c)(1).................................................. 10.04; 10.05
(c)(2).................................................. 10.04; 10.05
(c)(3).................................................. N.A.
(d)..................................................... N.A.
(e)..................................................... 10.05
(f)..................................................... N.A.
315(a)..................................................... 7.01; 7.02
(b)..................................................... 7.05; 10.02
(c)..................................................... 7.01
(d)..................................................... 6.05; 7.01; 7.02
(e)..................................................... 6.11
316(a) (last sentence)..................................... 10.06
(a)(1)(A)............................................... 6.05
(a)(1)(B)............................................... 6.04
(a)(2).................................................. 8.02
(b)..................................................... 6.07
(c)..................................................... 8.04
317(a)(1).................................................. 6.08
(a)(2).................................................. 6.09
(b)..................................................... 7.12
318........................................................ 10.01
N.A. means Not Applicable
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NOTE: This Cross-Reference Table shall not, for any purpose, be deemed to be a
part of the Indenture.
INDENTURE, dated as of June 18, 2001, between ANTENNA TV S.A.,
a Greek corporation (societe anonyme), as Issuer (the "Company"), and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (the "Trustee").
The Company has duly authorized the execution and delivery of
this Indenture to provide for the issuance of (i) (euro)150,000,000 aggregate
principal amount of the Company's 9 3/4% Series A Senior Notes due 2008 in the
form of Initial Notes (as defined herein) and, if and when issued, in exchange
and in substitution for, and evidencing the same continuing indebtedness as,
such Initial Notes, 9 3/4% Series B Senior Notes due 2008 in the form of
Exchange Notes (as defined herein) and (ii) Additional Notes (as defined below)
in an aggregate principal amount not to exceed (euro)100,000,000 that the
Company may from time to time choose to issue pursuant to this Indenture, in
each case issuable as provided in this Indenture. All things necessary to make
this Indenture a valid and legally binding agreement of the Company enforceable,
in accordance with its terms, have been done, and the Company has done all
things necessary to make the Notes, when executed by the Company, when
authenticated and delivered by the Trustee hereunder and when duly issued by the
Company, the valid and legally binding obligations of the Company.
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the holders of the Company's 9
3/4% Senior Notes due 2008 (the "Notes").
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions.
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"Acquired Indebtedness" means Indebtedness of a Person or any
of its Subsidiaries existing at the time such Person becomes a Subsidiary of the
Company or at the time it merges or consolidates with the Company or any of its
Subsidiaries or assumed in connection with the acquisition of assets from such
Person and in each case not incurred by such Person in connection with, or in
anticipation or contemplation of, such Person becoming a Subsidiary of the
Company or such acquisition, merger or consolidation.
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"Additional Notes" means, subject to the Company's compliance
with Section 4.06, any Senior Notes due 2008 issued from time to time after the
Issue Date (other than Notes issued in exchange for the Initial Notes issued on
the Issue Date in accordance with Section 2.06 hereof) in an aggregate principal
amount not to exceed (euro)100,000,000.
"Affiliate" of any specified Person means any other Person
which, directly or indirectly, controls, is controlled by or is under direct or
indirect common control with, such specified Person. For the purposes of this
definition, "control" when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise,
and the terms "affiliated," "controlling" and "controlled" have meanings
correlative to the foregoing; provided, that, for purposes of the covenant
described under Section 4.09 of this Indenture, beneficial ownership of at least
10% of the voting securities of a Person, either directly or indirectly, shall
be deemed to be control.
"Agent" means any Registrar, Paying Agent, co-registrar or
agent for service of notices and demands.
"Asset Sale" means any direct or indirect sale, issuance,
conveyance, transfer, lease (including by means of sale-leaseback), assignment
or other transfer or disposition outside of the ordinary course of business to
any Person other than the Company or any Subsidiary of the Company, in one
transaction or a series of related transactions, of (i) any Capital Stock of any
Subsidiary of the Company (including by way of issuance by such Subsidiary) or
(ii) any other property or asset of the Company or of any Subsidiary of the
Company, in each case, other than such isolated transactions which do not exceed
(euro)500,000. For the purposes of this definition, the term "Asset Sale" will
not include (a) any disposition of Capital Stock, properties or assets of the
Company or any Subsidiary of the Company that is governed under and complies
with the requirements set forth in Section 5.01, Section 4.12 or Section 4.07 of
this Indenture, (b) the surrender or waiver of contract rights or settlement,
release or surrender of contract, tort or other claims of any kind determined in
good faith by two Officers of the Company to be in the best interest of the
Company, (c) the incurrence of any Permitted Lien and the disposition of assets
pursuant to any such Permitted Lien by any secured party under such Permitted
Lien, and (d) disposals of obsolete equipment
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or other equipment no longer required for the purposes of the business carried
on by it.
"Attributable Debt" means, in respect of a Sale-Leaseback
Transaction, as at the time of determination, the greater of (i) the fair value
of the property subject to such arrangement (as determined in good faith by the
Board of Directors of the Company or the applicable Subsidiary, as the case may
be) or (ii) the present value (discounted at the interest rate borne by the
Notes, compounded semi-annually) of the total obligations of the lessee for
rental payments during the remaining term of the lease included in such
arrangement (including any period for which such lease has been extended).
"Bank Credit Agreement" means any agreement or agreements,
including any replacements, renewals, refinancings and extensions thereof,
between the Company and/or one or more of its Subsidiaries and a financial
institution or institutions, providing for the making of loans, on a term or
revolving basis, the issuance of letters of credit and/or the creation of
bankers' acceptances.
"Board of Directors" means the board of directors of the
Company or any committee authorized to act on behalf of such board.
"Board Resolution" means, with respect to any Person, a copy
of a resolution certified by the Person appointed to act as secretary at the
meeting of the Board of Directors at which such resolution was adopted or by any
director present at the meeting of the Board of Directors at which such
resolution was adopted to have been duly adopted by the Board of Directors of
such Person and to be in full force and effect on the date of such
certification.
"Capital Stock" means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
any Person, including Common Stock or Preferred Stock and including any rights,
options or warrants with respect thereto.
"Capitalized Lease Obligation" means any obligation to pay
rent or other amounts under a lease of (or other agreement conveying the right
to use) any property (whether real, personal or mixed) that is required to be
classified and accounted as a capital lease obligation under GAAP, and, for the
purpose of this Indenture, the amount of such obligation at any
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date will be the capitalized amount thereof at such date, determined in
accordance with GAAP.
"Cash Equivalents" means, at any time, (i) Euro, Greek
drachmae, United States dollars or a claim on the European central bank; (ii)
any evidence of Indebtedness with a maturity of 365 calendar days or less issued
or directly and fully guaranteed or insured by the United States of America
(provided that the full faith and credit of the United States of America is
pledged in support thereof) or a member state of the European Union as of the
Issue Date or any agency or instrumentality thereof; (iii) certificates of
deposit or bankers' acceptances or money market deposits with a maturity of 365
calendar days or less of any financial institution that is a member of the
United States Federal Reserve System or any corporation authorized to conduct
banking activities in a member state of the European Union as of the Issue Date,
in each case, having combined capital and surplus and undivided profits of not
less than (euro)500,000,000; (iv) commercial paper with a maturity of 365
calendar days or less issued by a corporation (except the Company or any
Affiliate of the Company) organized under the laws of any state of the United
States, the District of Columbia or a member state of the European Union as of
the Issue Date and rated at least A-1 by S&P or at least P-1 by Xxxxx'x; (v)
repurchase agreements and reverse repurchase agreements relating to marketable
direct obligations issued or unconditionally guaranteed by the United States
Government or any member state of the European Union, as the case may be, or
issued by any agency thereof and backed by the full faith and credit of the
United States or such member state, as the case may be, in each case maturing
within 365 calendar days from the date of acquisition; provided that, in the
case of obligations issued or guaranteed by the United States of America, the
terms of such agreements comply with the Guidelines set forth in the United
States Federal Financial Agreements of Depository Institutions with Securities
and Others, as adopted by the United States Comptroller of the Currency; and
(vi) investments in money market funds which invest substantially all their
assets in securities of the types described in (i) through (v) above.
"Change of Control" means (a) all or substantially all of the
assets of the Company are sold, leased, exchanged or otherwise transferred to
any person or entity or group of persons or entities acting in concert as a
partnership or other group (a "Group of Persons") other than a Permitted Holder
or a Wholly-Owned Subsidiary of the Company in compliance with Section 5.01 of
this Indenture, (b) the Company is merged or consolidated with or into another
corporation with the effect that
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the Permitted Holders hold less than 50% of the combined voting power of the
then outstanding securities of the surviving corporation of such merger or the
corporation resulting from such consolidation ordinarily (and apart from rights
arising under special circumstances) having the right to vote in the election of
directors, (c) the first day within any two-year period on which a majority of
the members of the Board of Directors of the Company are not Continuing
Directors (as defined below), or (d) (x) any Person or Group of Persons, other
than the Permitted Holders, is or becomes the "beneficial owner" (as defined in
Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person will be
deemed to have "beneficial ownership" of all securities that such Person has the
right to acquire, whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of more than 35% of the voting
power of the Company's outstanding Voting Capital Stock and (y) the Permitted
Holders "beneficially own" (as defined above), directly or indirectly, in the
aggregate a lesser percentage of Voting Capital Stock than such other Person or
Group of Persons. For purposes of this definition, "Continuing Directors" shall
mean, as of the date of any determination, any member of the Board of Directors
of the Company 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 a designee of
the Permitted Holders or their Affiliates or was nominated by the Permitted
Holders or their Affiliates or any designees of the Permitted Holders or their
Affiliates on the Board of Directors.
"Clearstream" means Clearstream Banking societe anonyme,
Luxembourg, formerly Cedelbank, or any successor entity.
"Commission" means the United States Securities and Exchange
Commission.
"Common Depository" means the Person designated as the common
depository by the Depository, which shall initially be The Bank of New
York-London.
"Common Stock" means, with respect to any Person, any and all
shares, interests (including partnership interests) or other participations in,
and other equivalents (however designated and whether voting or nonvoting) of
such Person's common stock or ordinary shares or interests, whether or not
outstanding at the Issue Date, and includes, without limitation, all
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series and classes of such common stock or ordinary shares or interests.
"Company" means the party named as such in the first paragraph
of this Indenture until a successor replaces such party pursuant to Article 5 of
this Indenture and thereafter means the successor and, for purposes of any
provision contained herein and required by the TIA, any other obligor on the
Notes.
"Company Request" means any written request signed in the name
of the Company by the Chairman of the Board of Directors, the Chief Executive
Officer, the Executive Vice President, the Chief Financial Officer, the
Treasurer or the Controller and attested to by any Officer of the Company.
"Consolidated Fixed Charges" means, with respect to any Person
for any period, the sum, without duplication, of (i) Consolidated Interest
Expense (including amortization or write-off of deferred financing costs of such
Person and its consolidated Subsidiaries during such period and any premium or
penalty paid in connection with redeeming or retiring, Indebtedness or any
series of Disqualified Capital Stock or Preferred Stock of the Company and its
consolidated Subsidiaries prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness, Disqualified Capital Stock or Preferred
Stock, as the case may be) and (ii) the product of (x) the amount of all
dividend payments on any series of Disqualified Capital Stock of such Person and
any series of Disqualified Capital Stock or Preferred Stock of its Subsidiaries
(other than dividends paid in Capital Stock which is not Disqualified Capital
Stock) paid, accrued or scheduled to be paid or accrued during such period times
(y) a fraction, the numerator of which is one and the denominator of which is
one minus the then current effective consolidated national, state and local tax
rate of such Person, expressed as a decimal.
"Consolidated Interest Expense" means, with respect to any
Person for any period, the aggregate of the interest expense (including a
deduction for cash interest income) of such Person and its Subsidiaries for such
period, on a consolidated basis, as determined in accordance with GAAP, and
including (a) all amortization of original issue discount and deferred financing
costs; (b) the interest component of Capitalized Lease Obligations paid, accrued
and/or scheduled to be paid or accrued by such Person and its Subsidiaries
during such period; (c) net cash costs under all Interest Rate Protection
Obligations (including amortization of fees); (d) all capitalized
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interest; and (e) the interest portion of any deferred payment obligations for
such period.
"Consolidated Net Income" means, with respect to any Person,
for any period, the aggregate of the Net Income of such Person and its
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP consistently applied; provided, that (a) the Net Income of any other
Person in which the Person in question or one of its Subsidiaries has a joint
interest with a third party (which interest does not cause the Net Income of
such other Person to be consolidated into the Net Income of the Person in
question in accordance with GAAP) shall be included only to the extent of the
amount of dividends or distributions paid to the Person in question or the
Subsidiary, (b) the Net Income of any Subsidiary of the Person in question that
is subject to any legal, consensual or other restriction or limitation on the
payment of dividends or the making of other distributions shall be excluded to
the extent of such restriction or limitation, (c) (i) the Net Income (or loss)
of any Person acquired in a pooling of interests transaction for any period
prior to the date of such acquisition and (ii) any net gain or loss resulting
from an Asset Sale by the Person in question or any of its Subsidiaries other
than in the ordinary course of business shall, in each case, be excluded, and
(d) extraordinary gains and losses (and any related tax effects) and any
one-time increase or decrease to Net Income which is required to be recorded
because of the adoption of new accounting practices, policies or standards
required by GAAP, shall in each case be excluded.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 00xx Xxxxx, Xxx Xxxxxx Xxxxxx,
Xxxxxx X00 0XX, Xxxxxx Xxxxxxx, Attention: Corporate Trust Administration, or
such other address as the Trustee may designate from time to time by notice to
the Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Currency Protection Obligations" means obligations under any
foreign exchange contract, currency swap agreement, or other similar agreement
or arrangement designed to protect the Company and its Subsidiaries against
fluctuations in currency values and entered into for hedging and not speculative
purposes.
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"Default" means any event that is, or after notice or passage
of time or both would be, an Event of Default.
"Depository" means Euroclear or Clearstream or a successor
agency to either or both of them.
"Disqualified Capital 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, matures or is mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or is exchangeable for Indebtedness, or is
redeemable or required to be purchased at the option of the holder thereof, in
whole or in part, on or prior to the maturity date of the Notes.
"EBITD" means for a period ending at the close of any fiscal
quarter, the sum of: (i) Consolidated Net Income for such period, plus (ii) to
the extent deducted in determining Consolidated Net Income, the sum of all
expenses of the Company and its Subsidiaries, on a consolidated basis, in
accordance with GAAP for such period in respect of (A) depreciation, (B)
amortization including, without limitation, amortization of capitalized debt
issuance costs, but excluding the amortization of programming costs for such
period, (C) Consolidated Interest Expense, (D) national, state and local income
taxes and any other applicable income taxes (including United States federal,
state and local taxes), and (E) any other non-cash charges to the extent
deducted from or reflected in Consolidated Net Income except for any non-cash
charges that represent accruals of, or reserves for, cash disbursements to be
made in any future accounting period.
"Euro Equivalent" means, with respect to any monetary amount
in a currency other than Euro, at any time for the determination thereof, the
amount of Euro obtained by converting such foreign currency involved in such
computation into Euro at the spot rate for the purchase of Euro with the
applicable foreign currency as quoted by Reuters at approximately 10:00 a.m.
(New York time) on the date not more than two Business Days prior to such
determination.
"Euro Government Obligations" means Euro-denominated direct
non-callable obligations of, or obligations guaranteed by, a member state of the
European Union for the payment of which obligations or guarantee the full faith
and credit of such member state is pledged.
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"Euroclear" means Euroclear Bank S.A./N.V., as operator of
the Euroclear System, or any successor entity.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Notes" means (i) the 9 3/4% Series B Senior Notes
due 2008 to be issued pursuant to this Indenture in connection with a
Registration pursuant to a Registration Rights Agreement and (ii) Additional
Notes, if any, issued in the form of Senior Notes due 2008 pursuant to a
Registration Statement filed with the Commission under the Securities Act, in
each case substantially in the form of Exhibit A.
"Existing Notes" means the Company's 9% Senior Notes due 2007.
"Fair Market Value" or "fair value" means, with respect to any
asset or property, the price which could be negotiated in an arm's-length
transaction, for cash, between a willing seller and a willing buyer, neither of
whom is under undue pressure or compulsion to complete the transaction. Fair
Market Value shall be determined by the Board of Directors of the Company acting
in good faith and shall be evidenced by a Board Resolution.
"Fixed Charge Coverage Ratio" means the ratio of (a) EBITD for
the four fiscal quarters immediately preceding the determination date to (b)
Consolidated Fixed Charges calculated on a pro forma basis for such four fiscal
quarters. For purposes of this definition, if the date of the transaction giving
rise to the need to calculate the Fixed Charge Coverage Ratio (the "Transaction
Date") occurs prior to the date on which the Company's consolidated financial
statements for the four full fiscal quarters subsequent to the Issue Date are
first available, EBITD and Consolidated Fixed Charges shall be calculated, in
the case of the Company, after giving effect on a pro forma basis as if the
Notes outstanding on the Transaction Date were issued on the first day of such
four full fiscal quarter period and the assets and liabilities of the Company as
of the Transaction Date had been contributed to or assumed by the Company on
such first day. In addition to and without limitation of the foregoing, for
purposes of this definition, EBITD and Consolidated Fixed Charges shall be
calculated after giving effect on a pro forma basis for the period of such
calculation to (i) the incurrence of any Indebtedness of any Person or any of
its Subsidiaries at any time during the period (the "Reference Period") (A)
commencing on the first day of the
-10-
four full fiscal quarter period for which financial statements are available
that precedes the Transaction Date and (B) ending on and including the
Transaction Date, including, without limitation, the incurrence of the
Indebtedness giving rise to the need to make such calculation, as if such
incurrence occurred on the first day of the Reference Period; provided, that if
such Person or any of its Subsidiaries directly or indirectly guarantees
Indebtedness of a third Person, the above clause shall give effect to the
incurrence of such guaranteed Indebtedness as if such Person or Subsidiary had
directly incurred such guaranteed Indebtedness, (ii) any Asset Sales occurring
during the Reference Period (it being expressly understood that such
calculations shall also give effect on a pro forma basis to any increase or
decrease in Consolidated Net Income of the Company attributable to such Asset
Sale and any retirement of Indebtedness in connection with such Asset Sale, as
if such Asset Sale and/or retirement occurred on the first day of the Reference
Period), (iii) any repayment, retirement or refinancing of Indebtedness
occurring during the Reference Period, as if such repayment, retirement or
refinancing had occurred on the first day of the Reference Period and (iv) any
acquisition of a Person, business or assets occurring during the Reference
Period, as if such acquisition had occurred on the first day of the Reference
Period. Furthermore, in calculating the denominator (but not the numerator) of
this "Fixed Charge Coverage Ratio," (1) interest on Indebtedness determined on a
fluctuating basis as of the Transaction Date and which will continue to be so
determined thereafter shall be deemed to accrue at a fixed rate per annum equal
to the rate of interest on such Indebtedness in effect on the Transaction Date;
(2) if interest on any Indebtedness actually incurred on the Transaction Date
may optionally be determined at an interest rate based upon a factor of a prime
or similar rate, a eurocurrency interbank offered rate, or other rates, then the
interest rate in effect on the Transaction Date will be deemed to be in effect
during the Reference Period; and (3) notwithstanding clause (1) above, interest
on Indebtedness determined on a fluctuating basis, to the extent such interest
is covered by agreements relating to Interest Rate Protection Obligations, shall
be deemed to accrue at the rate per annum resulting after giving effect to the
operation of such agreements.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America.
"Holder" or "Noteholder" means the Person in whose name a Note
is registered in the Registrar's books.
-11-
"Indebtedness" means, with respect to any Person, without
duplication, (i) any liability, contingent or otherwise, of such Person (A) for
borrowed money (whether or not the recourse of the lender is to the whole of the
assets of such Person or only to a portion thereof), (B) evidenced by a note,
debenture or similar instrument or letters of credit (including a purchase money
obligation or other obligation relating to the deferred purchase price of
property and any Capitalized Lease Obligations); (ii) any liability of others of
the kind described in the preceding clause (i) which the Person has guaranteed
or which is otherwise its legal liability; (iii) any obligation secured by a
Lien to which the property or assets of such Person are subject, whether or not
the obligations secured thereby shall have been assumed by or shall otherwise be
such Person's legal liability; (iv) Currency Protection Obligations and Interest
Rate Protection Obligations; (v) the Attributable Debt of any Sale-Leaseback
Transaction; and (vi) any and all deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to, any liability of the kind
described in any of the preceding clauses (i), (ii), (iii), (iv) or (v).
"Indenture" means this Indenture as amended, restated or
supplemented from time to time.
"Independent Financial Advisor" means an accounting, appraisal
or investment banking or consulting firm of national recognition within the
United States or similarly recognized within the European Union that is, in the
reasonable judgment of the Board of Directors of the Company, qualified to
perform the tasks for which such firm has been engaged and independent with
respect to the Company and its Affiliates.
"Initial Notes" means (i) (euro)150,000,000 aggregate
principal amount of 9 3/4% Series A Senior Notes due 2008 issued on the Issue
Date, and (ii) Additional Notes, if any, issued in the form of Senior Notes due
2008 in a transaction exempt from the registration requirements of the
Securities Act, in each case substantially in the form of Exhibit A and
containing the Private Placement Legend.
"Interest Payment Date" means the stated maturity of an
installment of interest on the Notes.
"Interest Rate Protection Obligations" means the obligations
of any Person pursuant to any arrangement with any other Person whereby,
directly or indirectly, such Person is entitled to receive from time to time
periodic payments
-12-
calculated by applying either a floating or a fixed rate of interest on a stated
notional amount in exchange for periodic payments made by such Person calculated
by applying a fixed or a floating rate of interest on the same notional amount
and shall include, without limitation, interest rate swaps, caps, floors,
collars and similar agreements and, in each case, entered into for hedging and
not for speculative purposes.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
"Issue Date" means June 18, 2001, the date Notes are first
issued by the Company and authenticated by the Trustee under this Indenture.
"Lien" means, with respect to any Person, any mortgage, deed
of trust, pledge, lien, lease, encumbrance, easement, restriction, covenant,
right-of-way, charge or adverse claim affecting title or resulting in an
encumbrance against real or personal (tangible or intangible) property or any
interest therein of such Person, or a security interest of any kind (including,
without limitation, any conditional sale or other title retention agreement, any
lease in the nature thereof, any option, right of first refusal or other similar
agreement to sell, in each case securing obligations of such Person, and any
filing of or agreement to give any financing statement under the Uniform
Commercial Code (or equivalent statute or statutes) of any jurisdiction other
than to reflect ownership by a third party of property leased to the referent
Person or any of its Subsidiaries under a lease that is not in the nature of a
conditional sale or title retention agreement).
"Material Subsidiary" has the meaning ascribed to "Significant
Subsidiary" in Rule 1.02(w) of Regulation S-X under the Securities Act as such
Rule is in effect on the Issue Date.
"Maturity Date" means July 1, 2008.
"Moody's" means Xxxxx'x Investors Service, Inc. and its
successors.
"Net Asset Sale Proceeds" means, with respect to any Asset
Sale, the proceeds thereof in the form of cash or Cash Equivalents, including
payments in respect of deferred payment obligations when received in the form of
cash or Cash Equivalents (except to the extent that such obligations with
respect to Indebtedness are financed or sold with recourse to the
-13-
Company or any of its Subsidiaries) net of (i) brokerage commissions and other
reasonable fees and expenses (including reasonable fees and expenses of counsel
and investment bankers) incurred in connection with such Asset Sale; (ii)
provisions for all taxes payable as a result of such Asset Sale; (iii) payments
made to retire Indebtedness secured by the assets subject to such Asset Sale to
the extent required pursuant to the terms of such Indebtedness; (iv) appropriate
amounts to be provided by the Company or any of its Subsidiaries, as the case
may be, as a reserve, in accordance with GAAP, against any liabilities
associated with such Asset Sale and retained by the Company or any of its
Subsidiaries, as the case may be, after 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; and (v) in the case of a sale of
cash or Cash Equivalents, the amount reinvested in cash or Cash Equivalents.
"Net Income" means, with respect to any Person for any period,
the net income (loss) of such Person determined in accordance with GAAP.
"Net Proceeds" means (a) in the case of any capital
contributions or any sale of Capital Stock by the Company, the aggregate net
proceeds received by the Company, after payment of expenses, commissions and the
like incurred in connection therewith, whether such proceeds are in cash,
marketable securities or in property (valued at the Fair Market Value thereof,
as determined in good faith by the Board of Directors, at the time of receipt)
and (b) in the case of any exchange, exercise, conversion or surrender of
outstanding securities of any kind of the Company for or into shares of Capital
Stock of the Company which is not Disqualified Capital Stock, the net book value
of such outstanding securities on the date of such exchange, exercise,
conversion or surrender (plus any additional amount required to be paid by the
holder to the Company upon such exchange, exercise, conversion or surrender,
less any and all payments made to the holders, e.g., on account of fractional
shares and less all expenses incurred by the Company in connection therewith).
"Notes" means, collectively, the Initial Notes and any
Additional Notes. All Notes shall vote and consent together on all matters (as
to which such Notes may vote or consent) as one class and no series of Notes
will have the right to vote or consent as a separate class on any matter.
-14-
"Offering Memorandum" means the Offering Memorandum dated June
11, 2001 pursuant to which the Initial Notes were initially offered.
"Officer" means, with respect to any Person, the Chairman of
the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, any Executive Vice President, the Treasurer or the Controller of such
Person.
"Officers' Certificate" means, with respect to any Person, a
certificate signed by two Officers or by an Officer and an Assistant Treasurer
of such Person.
"Opinion of Counsel" means a written opinion from legal
counsel reasonably acceptable to the Trustee. Such legal counsel shall be
outside counsel and not an employee of or in-house counsel to the Company and,
in the case of Greek counsel, may be the law firm of Xxxxxxxxxxx Xxxxxx &
Partners.
"Permitted Holder" means (i) Xxxxx Xxxxxxxx; (ii) Xxxxxxxx
Xxxxxxxx; (iii) Xxxxxx Xxxxxxxx; (iv) Xxxxxxxx Xxxxxxxx (each Person listed in
(i) through (iv), an "Individual"); and (v) any spouse of an Individual, any
lineaal descendants of an Individual, any trust or estate the sole beneficiaries
of which are Individuals, spouses of Individuals or any lineal descendants of
Individuals, or any entity owned or controlled by any of the foregoing.
"Permitted Liens" means (i) Liens in favor of the Company or a
Subsidiary of the Company; (ii) Liens existing on the Issue Date after giving
effect to the use of proceeds from the sale of the Notes; (iii) Liens on
accounts receivable or the proceeds therefrom of the Company securing
Indebtedness incurred under a Bank Credit Agreement; provided, that the
incurrence of such Indebtedness is otherwise permitted under this Indenture;
(iv) Liens to secure Capitalized Lease Obligations; provided that (a) any such
Lien does not extend or cover any other property other than the property that is
the subject of such Capitalized Lease Obligation and (b) such Capitalized Lease
Obligation is otherwise permitted under this Indenture; (v) Liens on assets of a
Person when it becomes a Subsidiary and Liens securing Acquired Indebtedness
incurred in accordance with Section 4.06 of this Indenture; provided, that in
each case (A) such Liens secured such assets or Acquired Indebtedness at the
time of and prior to such Person becoming a Subsidiary or the incurrence of such
Acquired Indebtedness by the Company or a Subsidiary of the Company and were not
granted in connection with, or in anticipation of, the incurrence of such
-15-
Acquired Indebtedness by the Company or a Subsidiary of the Company and (B) such
Liens do not extend to or cover any property or assets of the Company or of any
of its Subsidiaries other than the property or assets that secured the Acquired
Indebtedness prior to the time such Indebtedness became Acquired Indebtedness of
the Company or a Subsidiary of the Company and are no more favorable to the lien
holders than those securing the Acquired Indebtedness prior to the incurrence of
such Acquired Indebtedness by the Company or a Subsidiary of the Company; (vi)
leases and subleases of real property which do not interfere with the ordinary
conduct of the business of the Company or any of its Subsidiaries, and which are
made on customary and usual terms applicable to similar properties; (vii)
purchase money Liens to finance property or assets of the Company or any
Subsidiary of the Company acquired in the ordinary course of business; provided,
however, that (A) the related purchase money Indebtedness shall not exceed the
cost of such property or assets and shall not be secured by any property or
assets of the Company or any Subsidiary of the Company other than the property
and assets so acquired and (B) the Lien securing such Indebtedness shall be
created within 90 calendar days of such acquisition; (viii) any interest or
title of a lessor or sublessor, or any lien in favor of a landlord, arising
under any real or personal property lease under which the Company or any of its
Subsidiaries is a lessee, sublessee or subtenant (other than any interest or
title and/or any lien securing any Capitalized Lease Obligation); (ix) Liens to
secure Indebtedness consisting of Interest Rate Protection Obligations and
Currency Protection Obligations; provided, that the incurrence of such
Indebtedness is otherwise permitted under this Indenture; (x) with respect to
any Person, any Lien arising by reason of (a) any judgment, decree or order of
any court, so long as such Lien is being contested in good faith and is
adequately bonded, and any appropriate legal proceedings which may have been
duly initiated for the retirement of such judgment, decree or order shall not
have been finally terminated or the period within which such proceedings may be
initiated shall not have expired, (b) taxes not yet delinquent or which are
being contested in good faith, (c) security for payment of workers' compensation
or other insurance, (d) security for the performance of tenders, contracts
(other than contracts for the payment of money) or leases, (e) deposits to
secure public or statutory obligations, or in lieu of surety or appeal bonds,
(f) operation of law in favor of carriers, warehousemen, landlords, mechanics,
materialman, laborers, employees or suppliers, incurred in the ordinary course
of business for sums which are not yet delinquent or are being contested in good
faith by negotiations or by appropriate proceedings which suspend the
-16-
collection thereof, (g) security for surety or appeal bonds, and (h) easements,
rights-of-way, zoning and similar covenants and restrictions and other similar
encumbrances or title defects which, in the aggregate, are not substantial in
amount, and which do not in any case materially detract from the value of the
property subject thereto or materially interfere with the ordinary conduct of
the business of the Company or any of its Subsidiaries; (xi) Liens to secure
Indebtedness incurred to extend, renew, refinance or refund (or successive
extensions, renewals, refinancings or refundings), in whole or in part,
Indebtedness secured by any Lien referred to in the foregoing clauses (v) and
(vii) so long as such Lien does not extend to any other property and the
principal amount of Indebtedness so secured is not increased except as otherwise
permitted under clause (g) of Section 4.06 hereof; (xii) Liens securing the
Notes and Liens securing the Existing Notes in accordance with the terms of the
Existing Notes as in effect on the Issue Date; and (xiii) other Liens securing
Indebtedness if the Indebtedness secured by the Lien, plus all other
Indebtedness secured by Liens (excluding Indebtedness secured by Liens permitted
by clauses (i) through (xii) above), at the time of determination do not exceed
(euro)1,000,000.
"Permitted Related Investment" means the acquisition or
construction or improvement of property or assets, or an interest in any Person
that is merged with the Company or a Subsidiary or becomes a Subsidiary, in each
case in lines of business reasonably related to the business of the Company and
its Subsidiaries at the time of such acquisition or construction or improvement.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Preferred Stock" of any Person means any Capital Stock of
such Person that has preferential rights to any other class of Capital Stock of
such Person with respect to dividends or redemptions or upon liquidation or
otherwise.
"Private Placement Legend" means the legend initially set
forth on the face of the Notes in the form set forth on Exhibit A.
"Public Equity Offering" means a public offering of Common
Stock (other than Disqualified Capital Stock) of the Company which is either (i)
undertaken pursuant to a registration statement filed with the Commission in
accordance with the
-17-
Securites Act or (ii) registered with the Greek Capital Markets Commission and
listed on the Athens Stock Exchange.
"property" of any Person means all types of real, personal,
tangible, intangible or mixed property owned by such Person whether or not
included in the most recent consolidated balance sheet of such Person and its
Subsidiaries under GAAP.
"Qualified Institutional Buyer" or "QIB" shall have the
meaning specified in Rule 144A promulgated under the Securities Act.
"Redemption Date" when used with respect to any Note to be
redeemed means the date fixed for such redemption pursuant to this Indenture.
"Registration" means, collectively, each offer of Notes
registered pursuant to a Registration Statement.
"Registration Rights Agreement" means (i) with respect to the
Initial Notes issued on the Issue Date, the Registration Rights Agreement, dated
as of the date hereof, among the Company and Salomon Brothers International
Limited, and (ii) with respect to each issuance of Additional Notes in a
transaction exempt from the registration requirements of the Securities Act, any
registration rights agreement among the Company and the Persons purchasing such
Additional Notes.
"Registration Statement" means the Exchange Offer Registration
Statement (as defined in the Registration Rights Agreement) or Shelf
Registration Rights Agreement (as defined in the Registration Rights Agreement).
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Regulation S" means Regulation S promulgated under the
Securities Act.
-18-
"Restricted Payment" means any of the following: (i) the
declaration or payment of any dividend or any other distribution on Capital
Stock of the Company or any Subsidiary of the Company or any payment made to the
direct or indirect holders (in their capacities as such) of Capital Stock of the
Company or any Subsidiary of the Company (other than (x) dividends or
distributions payable solely in Capital Stock (other than Disqualified Capital
Stock) or in options, warrants or other rights to purchase Capital Stock (other
than Disqualified Capital Stock), and (y) in the case of Subsidiaries of the
Company, dividends or distributions payable to the Company or to a Wholly-Owned
Subsidiary of the Company), (ii) the purchase, redemption or other acquisition
or retirement for value of any Capital Stock of the Company, (iii) the making of
any principal payment on, purchase, defeasance, redemption, prepayment, decrease
or other acquisition or retirement for value, prior to any scheduled final
maturity, scheduled repayment or scheduled sinking fund payment of any
Indebtedness of the Company that is subordinate or junior in right of payment to
the Notes (other than Indebtedness acquired in anticipation of satisfying a
sinking fund obligation, principal installment or final maturity, in each case
due within one year of the date of acquisition) and (iv) the making of any
Investment other than an Investment permitted under clauses (i) through (vi) and
(viii) through (xi) of Section 4.11.
"Restricted Security" has the meaning set forth in Rule
144(a)(3) promulgated under the Securities Act; provided that the Trustee shall
be entitled to request and conclusively rely upon an Opinion of Counsel with
respect to whether any Note is a Restricted Security.
"Rule 144" means Rule 144 promulgated under the Securities
Act.
"Rule 144A" means Rule 144A promulgated under the Securities
Act.
"Sale-Leaseback Transaction" means any direct or indirect
arrangement, or series of related arrangements, with any Person or to which any
Person is a party, providing for the leasing to the Company or to a Subsidiary
of the Company of any property, whether owned by the Company or by any
Subsidiary of the Company at the Issue Date or later acquired, which has been or
is to be sold or transferred by the Company or such Subsidiary of the Company to
such Person or to any other Person from whom funds have been or are to be
advanced by such Person on the security of such property.
-19-
"S&P" means Standard & Poor's Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
"Securities Act" means the Securities Act of 1933, as amended.
"Subsidiary" with respect to any Person, means (i) any
corporation of which the outstanding Capital Stock having at least a majority of
the votes entitled to be cast in the election of directors under ordinary
circumstances shall at the time be owned, directly or indirectly, by such Person
or any Subsidiary of such Person or by such Person and a Subsidiary of such
Person or (ii) any other Person (other than a corporation) including a
partnership in which the Person in question, a Subsidiary of the Person in
question or the Person in question and a Subsidiary of the Person in question,
directly or indirectly, at the date of determination thereof, has at least a
majority ownership interest.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code
sections 77aaa-77bbbb) as in effect on the date of this Indenture (except as
provided in Section 8.03 hereof).
"Trustee" means the party named as such in this Indenture
until a successor replaces it pursuant to this Indenture and thereafter means
the successor.
"Voting Capital Stock" means, with respect to any Person,
Capital Stock of any class or kind ordinarily having the power to vote for the
election of directors, managers or other members of the governing body of such
Person.
"Wholly-Owned Subsidiary" means, with respect to any Person,
any Subsidiary of such Person of which all the outstanding voting securities
(other than in the case of a foreign Subsidiary, directors' qualifying shares or
an immaterial amount of shares required to be owned by other Persons pursuant to
applicable law) are owned by such Person or any Wholly-Owned Subsidiary of such
Person or by such Person and a Wholly-Owned Subsidiary of such Person.
Section 1.02. Other Definitions.
-----------------
The definitions of the following terms may be found in the
sections indicated as follows:
-20-
Term Defined in Section
---- ------------------
"Additional Amounts"........................................ 4.17
"Affiliate Transaction"..................................... 4.09
"Agent Members"............................................. 2.14
"Asset Sale Offer".......................................... 4.08
"Authorized Agent".......................................... 10.10
"Bankruptcy Law"............................................ 6.01
"Base Currency"............................................. 10.11
"Business Day".............................................. 10.08
"Change of Control Date".................................... 4.15
"Change of Control Offer"................................... 4.15
"Change of Control Payment Date"............................ 4.15
"Change of Control Purchase Price".......................... 4.15
"Covenant Defeasance"....................................... 9.03
"Custodian"................................................. 6.01
"Default Amount"............................................ 6.02
"Euro Conversion Amount".................................... 2.16
"Event of Default".......................................... 6.01
"Excess Proceeds"........................................... 4.08
"Excess Proceeds Payment Date".............................. 4.08
"Global Notes".............................................. 2.01
"incur"..................................................... 4.06
"Investments"............................................... 4.11
"judgment currency"......................................... 10.11
"Legal Defeasance".......................................... 9.02
"Legal Holiday"............................................. 10.08
"New York Business Day"..................................... 2.16
"Other Notes"............................................... 4.08
"Offer Period".............................................. 4.08
"Offshore Physcial Notes"................................... 2.01
"Paying Agent".............................................. 2.03
"Permanent Regulation S Unrestricted Global Note"........... 2.01
"Permitted Payment"......................................... 4.07
"Physical Notes"............................................ 2.01
"rate(s) of exchange"....................................... 10.11
"Registered Exchange"....................................... 2.02
"Registrar"................................................. 2.03
"Regulation S Unrestricted Global Notes".................... 2.01
"Reinvestment Date"......................................... 4.08
"Rule 144A Restricted Global Note".......................... 2.01
"Surviving Entity".......................................... 5.01
"Tax Redemption"............................................ 3.07
"Taxes"..................................................... 4.17
"Taxing Jurisdiction"....................................... 4.17
"U.S. Physical Notes"....................................... 2.01
-21-
Section 1.03. Incorporation by Reference of Trust Indenture Act.
-------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the
portion of such provision required to be incorporated herein in order for this
Indenture to be qualified under the TIA is incorporated by reference in and made
a part of this Indenture. The following TIA terms used in this Indenture have
the following meanings:
"indenture securities" means the Notes.
"indenture securityholder" means a Holder or Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor on the indenture securities" means the Company, or
any other obligor on the Notes.
All other terms used in this Indenture that are defined by the
TIA, defined in the TIA by reference to another statute or defined by Commission
rule have the meanings therein assigned to them.
Section 1.04. Rules of Construction.
---------------------
Unless the context otherwise requires:
(1) a term has the meaning assigned to it herein, whether
defined expressly or by reference;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the
plural include the singular; and
(5) words used herein implying any gender shall apply to every
gender.
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ARTICLE 2
THE NOTES
Section 2.01. Dating; Incorporation of Form in Indenture.
------------------------------------------
The Notes and the Trustee's certificate of authentication
shall be substantially in the form of Exhibit A, which is incorporated in and
made part of this Indenture. The Notes may have notations, legends or
endorsements required by law, stock exchange rule or usage. The Company may use
"ISIN" numbers or Common Codes in issuing the Notes. The Company shall approve
the form of the Notes. Each Note shall be dated the date of its authentication.
In addition, subject to Section 4.06, Additional Notes may be issued in
accordance with Sections 2.02 and 2.17.
The Initial Notes offered and sold (i) in reliance on Rule
144A shall be issued initially in the form of one or more permanent global Notes
in registered form (the "Rule 144A Global Notes") and (ii) pursuant to
Regulation S shall be issued initially in the form of one or more permanent
global Notes in registered form (the "Regulation S Global Notes" and, together
with the Rule 144A Global Notes, the "Global Notes"), in each case substantially
in the form set forth in Exhibit A, deposited with the Trustee, as custodian for
the Depository, duly executed by the Company and authenticated by the Trustee as
hereinafter provided and shall bear the legend set forth on Exhibit B. The
aggregate principal amount of any Global Note may from time to time be increased
or decreased by adjustments made on the records of the Trustee, as custodian for
the Depository, as hereinafter provided.
Notes offered and sold in offshore transactions in reliance on
Regulation S may be issued in the form of certificated Notes in registered form
set forth in Exhibit A (the "Offshore Physical Notes"). Notes offered and sold
in reliance on Rule 144A may each also be issued in the form of certificated
Notes in registered form in substantially the form set forth in Exhibit A (the
"U.S. Physical Notes"). The Offshore Physical Notes and the U.S. Physical Notes
are sometimes collectively herein referred to as the "Physical Notes."
Section 2.02. Execution and Authentication.
----------------------------
The Notes shall be executed on behalf of the Company by two
Officers of the Company or an Officer and an Assistant
-23-
Secretary of the Company. Such signature may be either manual or facsimile.
If an Officer whose signature is on a Note no longer holds
that office at the time the Trustee authenticates the Note, the Note shall be
valid nevertheless.
A Note shall not be valid until the Trustee manually signs the
certificate of authentication on the Note. Such signature shall be conclusive
evidence that the Note has been authenticated under this Indenture.
The Trustee or an authenticating agent shall authenticate a
series of Initial Notes for original issue on the Issue Date in the aggregate
principal amount of (euro)150,000,00 upon a Company Request. In addition, the
Trustee or an authenticating agent shall, upon receipt of a written order of the
Company in the form of an Officers' Certificate of the Company, authenticate
Additional Notes in accordance with Section 2.17; provided that the Trustee
shall be entitled to receive an Officers' Certificate and an Opinion of Counsel
of the Company in connection with the authentication of such Additional Notes.
Such written order shall specify the amount of Notes to be authenticated and the
date on which such Notes are to be authenticated and, in the case of an issuance
of Additional Notes pursuant to Section 2.17, such Officers' Certificate of the
Company shall certify that such issuance will not be prohibited by Section 4.06.
The aggregate principal amount of Notes and Additional Notes outstanding at any
time under this Indenture may not exceed (euro)250,000,000, except as set forth
in Sections 2.07.
Upon receipt of the Company Request, the Trustee shall
authenticate an additional series of Notes in an aggregate principal amount not
to exceed (euro)150,000,000 for issuance in exchange for all Notes previously
issued pursuant to an exchange offer registered under the Securities Act (a
"Registered Exchange") or pursuant to a Private Exchange (as defined in the
Registration Rights Agreement). Exchange Notes may have such distinctive series
designation and "ISIN" numbers or Common Codes and such changes in the form
thereof as are specified in the Company Request referred to in the preceding
sentence. Exchange Notes issued pursuant to a Registered Exchange shall not bear
the Private Placement Legend. The Notes shall be issuable only in registered
form without coupons and only in denominations of (euro)1,000 and integral
multiples thereof.
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The Trustee may appoint an authenticating agent to
authenticate Notes. Any such appointment shall be evidenced by an instrument
signed by an authorized officer of the Trustee, a copy of which shall be
furnished to the Company. 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 agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate. The Company agrees to pay to the authenticating agent from time to
time reasonable compensation for its services under this Section 2.02.
Section 2.03. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in London,
England and, so long as the Notes are listed on the Luxembourg Stock Exchange
and the rules of such stock exchange require, in Luxembourg, where (a) Notes may
be presented or surrendered for registration of transfer or for exchange
("Registrar"), (b) Notes may be presented or surrendered for payment ("Paying
Agent") and (c) notices and demands in respect of the Notes and this Indenture
may be served. The Registrar shall keep a register or registers of the Notes and
of their transfer and exchange. The Registrar shall provide the Company with a
current copy of such register from time to time upon request of the Company. The
Company, upon notice to the Trustee, may appoint one or more co-registrars and
one or more additional Paying Agents. The term "Paying Agent" includes any
additional Paying Agent. Neither the Company nor any Affiliate may act as Paying
Agent. The Company may change any Paying Agent, Registrar or co-registrar
without notice to any Noteholder.
The Company shall enter into an appropriate agency agreement
with any Registrar or Paying Agent not a party to this Indenture. The agreement
shall implement the provisions of this Indenture that relate to such Agent. The
Company shall notify the Trustee of the name and address of any such Agent. If
the Company fails to maintain a Registrar or Paying Agent, or agent for service
of notices and demands, or fails to give the foregoing notice, the Trustee shall
act as such. The Company initially appoints the Trustee as Registrar, principal
Paying Agent and agent for service of notices or demands in connection with the
Notes, in each case, until such time as the Trustee has resigned or a successor
has been appointed. In addition, the Company initially appoints Banque
Internationale a Luxembourg S.A. as Paying Agent in Luxembourg.
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Section 2.04. Paying Agent to Hold Money in Trust.
-----------------------------------
Prior to the 10:00 am London time each due date of the
principal of and interest on any Notes, the Company shall deposit with the
Paying Agent a sum sufficient to pay such principal and interest so becoming
due. The Company at any time may require a Paying Agent to pay all money held by
it to the Trustee 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 forthwith pay to the Trustee all sums so held in trust by such Paying
Agent together with a complete accounting of such sums. Upon doing so, the
Paying Agent shall have no further liability for the money.
Section 2.05. Noteholder Lists.
----------------
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders. If the Trustee is not the Registrar, the Company shall
furnish to the Trustee on or before each June 15 and December 15 in each year,
and at such other times as the Trustee may request in writing, a list in such
form and as of such date as the Trustee may reasonably require of the names and
addresses of Noteholders.
Section 2.06. Transfer and Exchange.
---------------------
When a Note is presented to the Registrar with a request to
register the transfer thereof, the Registrar shall register the transfer as
requested if the requirements of applicable law are met and, when Notes are
presented to the Registrar with a request to exchange them for an equal
principal amount of Notes of other authorized denominations, the Registrar shall
make the exchange as requested; provided that every Note presented or
surrendered for registration of transfer or exchange shall be duly endorsed, or
be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Registrar duly executed by the Holder thereof or his attorney
duly authorized in writing. To permit transfers and exchanges, upon surrender of
any Note for registration of transfer at the office or agency maintained
pursuant to Section 2.03 hereof, the Company shall execute and the Trustee shall
authenticate Notes at the Registrar's request. Any exchange or transfer shall be
without charge, except that the Company may require payment by the Holder of a
sum sufficient to cover any tax or other governmental charge that may be imposed
in relation to a transfer or exchange, but this provision shall not apply to any
exchange pursuant to Sections 2.09, 3.06 or 8.05
-26-
hereof. The Trustee shall not be required to register transfers of Notes or to
exchange Notes for a period of 15 calendar days before selection of any Notes to
be redeemed. The Trustee shall not be required to exchange or register transfers
of any Notes called or being called for redemption in whole or in part, except
the unredeemed portion of any Note being redeemed in part.
Any Holder of the Global Note shall, by acceptance of such
Global Note, agree that transfers of the beneficial interests in such Global
Note may be effected only through a book entry system maintained by the Holder
of such Global Note (or its agent), and that ownership of a beneficial interest
in the Global Note shall be required to be reflected in a book entry.
Each Holder of a Note agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Note in violation of any provision of this Indenture
and/or applicable U.S. federal or state securities law.
Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent, the Registrar or any
co-registrar may deem and treat the Person in whose name a Note is registered as
the absolute owner of such Note for the purpose of receiving payment of
principal of and interest, if any, on such Note and for all other purposes
whatsoever, whether or not such 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.
All Notes issued upon any transfer or exchange pursuant to
this Section 2.06 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.
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 Depositary
participants 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.
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Section 2.07. Replacement Notes.
-----------------
If a mutilated Note is surrendered to the Trustee or if the
Holder of a Note presents evidence to the satisfaction of the Company and the
Trustee that the Note has been lost, destroyed or wrongfully taken, the Company
shall issue and the Trustee shall authenticate a replacement Note if the
requirements of Section 8-405 of the New York Uniform Commercial Code as in
effect on the date of this Indenture are met. An indemnity bond may be required
by the Company or the Trustee that is sufficient in the judgment of the Company
and the Trustee to protect the Company, the Trustee or any Agent from any loss
which any of them may suffer if a Note is replaced. In every case of
destruction, loss or theft, the applicant shall also furnish to the Company and
to the Trustee evidence to their satisfaction of the destruction, loss or the
theft of such Note and the ownership thereof. The Company and the Trustee may
charge for their expenses (including reasonable attorneys' fees and expenses) in
replacing a Note. Every replacement Note is an additional obligation of the
Company. In the event any such mutilated, lost, destroyed or wrongfully taken
Note has become due and payable, the Company in its discretion may pay such Note
instead of issuing a new Note in replacement thereof. The provisions of this
Section 2.07 are exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to replacement or payment of mutilated, lost,
destroyed or wrongfully taken Notes.
Section 2.08. Outstanding Notes.
-----------------
Notes outstanding at any time are all Notes authenticated by
the Trustee except for those cancelled by it, those delivered to it for
cancellation, and those described in this Section 2.08 as not outstanding.
If a Note is replaced pursuant to Section 2.07, it ceases to
be outstanding until the Company and the Trustee receive proof satisfactory to
each of them that the replaced Note is held by a bona fide purchaser.
If a Paying Agent holds on a Redemption Date or Maturity Date
money sufficient to pay the principal of, premium, if any, and accrued interest
on Notes payable on that date, then on and after that date, such Notes cease to
be outstanding and interest on them ceases to accrue.
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Subject to Section 10.06, a Note does not cease to be
outstanding solely because the Company or an Affiliate holds the Note.
Section 2.09. Temporary Notes.
---------------
Until definitive Notes are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Notes. Temporary Notes
shall be substantially in the form, and shall carry all rights, of definitive
Notes but may have variations that the Company considers appropriate for
temporary Notes. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate definitive Notes in exchange for temporary Notes upon
surrender of such temporary Notes at the office or agency maintained pursuant to
Section 2.03 hereof.
Section 2.10. 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
shall cancel and dispose of all canceled Notes in accordance with its customary
procedures. Subject to Section 2.07 hereof, the Company may not issue new Notes
to replace Notes in respect of which it has previously paid all principal,
premium and interest accrued thereon, or delivered to the Trustee for
cancellation.
Section 2.11. Defaulted Interest.
------------------
If the Company defaults in a payment of interest on the Notes,
it shall pay the defaulted amounts, plus any interest payable on defaulted
amounts pursuant to Section 4.01 hereof, to the Persons who are Noteholders on a
subsequent special record date. The Company shall fix the special record date
and payment date in a manner satisfactory to the Trustee and provide the Trustee
at least 20 calendar days' notice of the proposed amount of defaulted interest
to be paid and the special payment date. At least 15 calendar days before the
special record date, the Company shall mail or cause to be mailed to each
Noteholder at its address as it appears on the Notes register maintained by the
Registrar a notice that states the special record date, the payment date (which
shall be not less than five nor more than ten calendar days after the special
record date), and the amount to be paid. In lieu of the foregoing procedures,
the Company may pay defaulted interest in any other lawful manner satisfactory
to the Trustee.
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Section 2.12. Deposit of Moneys.
-----------------
Prior to 10:00 a.m., London 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, in a
timely manner which permits the Trustee to remit payment to the Holders on such
Interest Payment Date or Maturity Date, as the case may be. The principal and
interest on Global Notes shall be payable to the applicable Depository or its
nominee, as the case may be, as the sole registered owner or the sole holder of
the applicable Global Note represented thereby. The principal and interest on
Notes in certificated form shall be payable at the office of the Paying Agent.
Section 2.13. ISIN Numbers and Common Codes.
-----------------------------
The Company in issuing the Notes may use one or more "ISIN"
numbers and/or Common Codes, and if so, the Trustee shall use the ISIN number(s)
and/or Common Code(s) in notices of redemption or exchange as a convenience to
Holders, provided that any such notice may state that no representation is made
as to the correctness or accuracy of the ISIN number(s) or Common Code(s), as
the case may be, printed in the notice or on the Notes, and that reliance may be
placed only on the other identification numbers printed on the Notes and any
such redemption or exchange shall not be affected by any defect in or omission
of such number(s) or codes(s).
Section 2.14. Book-Entry Provisions for Global Notes.
--------------------------------------
(a) The Global Notes initially shall (i) be registered in
the name of the Common Depository as the nominee of each Depository, (ii) be
delivered to the Common Depository as custodian for each Depository and (iii)
bear legends as set forth in Exhibit B.
Members of, or participants in, any Depository ("Agent
Members") shall have no rights under this Indenture with respect to any Global
Note held on their behalf by such Depository, or the Trustee or Common
Depositary as its custodian, or under the Global Note, and each Depository may
be treated by the Company, the Trustee and any agent of the Company or the
Trustee as the absolute owner of the applicable 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
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effect to any written certification, proxy or other authorization furnished by a
Depository or impair, as between a Depository and its Agent Members, the
operation of customary practices governing the exercise of the rights of a
Holder of any Note.
(b) Transfers of a Global Note shall be limited to transfers
in whole, but not in part, to the applicable Depository, its successors or their
respective nominees. Interests of beneficial owners in any Global Note may be
transferred or exchanged for Physical Notes and Physical Notes may be
transferred or exchanged for beneficial interests in Global Notes, in each case,
in accordance with the rules and procedures of the applicable Depository and the
provisions of Section 2.15. In addition, Physical Notes shall be issued to all
beneficial owners in exchange for their beneficial interests in the applicable
Global Note if (i) the applicable Depository notifies the Company that it is
unwilling or unable to continue as Depository for any Global Note and a
successor depositary is not appointed by the Company within 90 calendar days of
such notice or (ii) an Event of Default has occurred and is continuing and the
Registrar has received a written request from such Depository to issue Physical
Notes.
(c) In connection with any transfer or exchange of a portion
of the beneficial interest in any Global Note to beneficial owners pursuant to
paragraph (b), the Registrar shall (if one or more Physical Notes are to be
issued) reflect on its books and records the date and a decrease in the
principal amount of the Global Note in an amount equal to the principal amount
of the beneficial interest in the Global Note to be transferred or exchanged,
and the Company shall execute, and the Trustee shall upon receipt of a written
order from the Company authenticate and make available for delivery, one or more
Physical Notes of like tenor and amount.
(d) In connection with the transfer of Global Notes as an
entirety to beneficial owners pursuant to paragraph (b), the Global Notes shall
be deemed to be surrendered to the Trustee for cancellation, and the Company
shall execute, and the Trustee shall authenticate and deliver, to each
beneficial owner identified by the Depository in writing in exchange for its
beneficial interest in the Global Notes, an equal aggregate principal amount of
Physical Notes of authorized denominations.
(e) Any Physical Note constituting a Restricted Security
delivered in exchange for an interest in a Global Note pursuant to paragraph
(b), (c) or (d) shall, except as otherwise
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provided by paragraphs (a)(i)(x) and (c) of Section 2.15, bear the Private
Placement Legend.
(f) The Holder of any Global Note may grant proxies and
otherwise authorize any Person, including Agent Members and Persons that may
hold interests through Agent Members, to take any action which a Holder is
entitled to take under this Indenture or the Notes.
Section 2.15. Special Transfer Provisions.
---------------------------
(a) Transfers to Non-QIB Institutional Accredited Investors
-------------------------------------------------------
and Non-U.S. Persons. The following provisions shall apply with respect to the
--------------------
registration of any proposed transfer of a Note constituting a Restricted
Security to any Institutional Accredited Investor which is not a QIB or to any
Non-U.S. Person:
(i) the Registrar shall register the transfer of any Note
constituting a Restricted Security, whether or not such Note bears the
Private Placement Legend, if (x) the requested transfer is subsequent
to a date which is two years after the later of the Issue Date and the
last date on which the Company or any of its Affiliates was the owner
of such Note or (y) (1) in the case of a transfer to an Institutional
Accredited Investor which is not a QIB (excluding Non-U.S. Persons),
the proposed transferee has delivered to the Registrar a certificate
substantially in the form of Exhibit C hereto or (2) in the case of a
transfer to a Non-U.S. Person (including a QIB), the proposed
transferor has delivered to the Registrar a certificate substantially
in the form of Exhibit D hereto; and
(ii) if the proposed transferor is an Agent Member holding a
beneficial interest in a Global Note, upon receipt by the Registrar of
(x) the certificate, if any, required by paragraph (i) above and (y)
instructions given in accordance with the Depository's and the
Registrar's procedures,
whereupon (a) the Registrar shall reflect on its books and records the date and
(if the transfer does not involve a transfer of outstanding Physical Notes) a
decrease in the principal amount of a Global Note in an amount equal to the
principal amount of the beneficial interest in a Global Note to be transferred,
and (b) the Company shall execute and the Trustee shall authenticate and make
available for delivery one or more Physical Notes of like tenor and amount.
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(b) Transfers to QIBs. The following provisions shall apply
----------------
with respect to the registration of any proposed transfer of a Note constituting
a Restricted Security to a QIB (excluding transfers to Non-U.S. Persons):
(i) the Registrar shall register the transfer if such
transfer is being made by a proposed transferor who has checked the box
provided for on the form of Note stating, or has otherwise advised the
Company and the Registrar in writing, that the sale has been made in
compliance with the provisions of Rule 144A to a transferee who has
signed the certification provided for on the form of Note stating, or
has otherwise advised the Company and the Registrar in writing, that it
is purchasing the Note for its own account or an account with respect
to which it exercises sole investment discretion and that it and any
such account is a QIB within the meaning of Rule 144A, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as it has requested pursuant to Rule 144A or has determined not
to request such information and that it is aware that the transferor is
relying upon its foregoing representations in order to claim the
exemption from registration provided by Rule 144A; and
(ii) if the proposed transferee is an Agent Member, and the
Notes to be transferred consist of Physical Notes which after transfer
are to be evidenced by an interest in the Global Note, upon receipt by
the Registrar of instructions given in accordance with the Depository's
and the Registrar's procedures, the Registrar shall reflect on its
books and records the date and an increase in the principal amount of
the Global Note in an amount equal to the principal amount of the
Physical Notes to be transferred, and the Trustee shall cancel the
Physical Notes so transferred.
(c) Private Placement Legend. Upon the transfer, exchange or
------------------------
replacement of Notes not bearing the Private Placement Legend, the Registrar
shall deliver Notes that do not bear the Private Placement Legend. Upon the
transfer, exchange or replacement of Notes bearing the Private Placement Legend,
the Registrar shall deliver only Notes that bear the Private Placement Legend
unless (i) the circumstances contemplated by paragraph (a)(i)(x) of this Section
2.15 exist, (ii) there is delivered to the Registrar an Opinion of Counsel
reasonably satisfactory to the Company and the Trustee to the effect that
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neither such legend nor the related restrictions on transfer are required in
order to maintain compliance with the provisions of the Securities Act or (iii)
such Note has been sold pursuant to an effective registration statement under
the Securities Act.
(d) 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 Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 2.14 or this Section
2.15. 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 notice to the Registrar.
Section 2.16. Ranking of Notes Relative to Existing Notes.
-------------------------------------------
The Company covenants and agrees, and each Holder, by its
acceptance thereof, likewise covenants and agrees, that the Indebtedness
represented by the Notes and the payment of all obligations on the Notes hereby
expressly rank pari passu in right of payment with the Existing Notes.
Section 2.17. Issuance of Additional Notes.
----------------------------
The Company shall be entitled to issue Additional Notes under
this Indenture which shall have substantially identical terms as the Initial
Notes issued on the Issue Date, other than with respect to the date of issuance,
issue price, amount of interest payable on the first payment date applicable
thereto or upon a registration default as provided under a Registration Rights
Agreement related thereto and terms of optional redemption, if any (and, if such
Additional Notes shall be issued in the form of Exchange Notes, other than with
respect to transfer restrictions); provided that such issuance shall be made in
compliance with Section 4.06; provided, further, that, other than as provided in
Section 2.07, the aggregate principal amount of Notes issued under this
Indenture shall not exceed (euro)250,000,000; provided, further, that no
Additional Notes may be authenticated and delivered in an aggregate principal
amount of less than (euro)25.0 million per issuance;
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provided, however, that no Additional Notes may be issued at a price that would
cause such Additional Notes to have "original issue discount" within the meaning
of Section 1273 of the Internal Revenue Code of 1986, as amended.
With respect to any Additional Notes, the Company shall set
forth in a resolution of its Board of Directors (or a duly appointed committee
thereof) and in an Officers' Certificate, a copy of each of which shall be
delivered to the Trustee, the following information:
(1) the aggregate principal amount of Notes outstanding
immediately prior to the issuance of such Additional Notes;
(2) the aggregate principal amount of such Additional Notes to
be authenticated and delivered pursuant to this Indenture;
(3) the issue price and the issue date of such Additional
Notes and the amount of interest payable on the first payment date applicable
thereto; and
(4) whether such Additional Notes shall be issued in the
form of Initial Notes or shall be issued in the form of Exchange Notes.
ARTICLE 3
REDEMPTION
Section 3.01. Notices to Trustee.
------------------
If the Company elects to redeem Notes pursuant to Section 3.07
hereof, at least 60 calendar days prior to the Redemption Date or during such
shorter period as the Trustee may agree to, the Company shall notify the Trustee
in writing of the Redemption Date, the principal amount of Notes to be redeemed
and the redemption price, and deliver to the Trustee an Officers' Certificate
stating that such redemption will comply with the conditions contained in
Section 3.07 hereof, as appropriate.
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Section 3.02. Selection by Trustee of Notes to Be Redeemed.
--------------------------------------------
In the event that less than all of the Notes are to be
redeemed at any time, selection of the Notes for redemption will be made by the
Trustee in compliance with the requirements of the principal national securities
exchange, if any, on which the Notes are listed or, if the Notes are not listed
on a national securities exchange, on a pro rata basis, by lot, or by such other
method as the Trustee shall deem fair and appropriate; provided that no Notes of
(euro)1,000 principal amount or less shall be redeemed in part. Notwithstanding
the foregoing, any redemption following a Public Equity Offering will be made on
a pro rata basis or on as nearly a pro rata basis as practicable. The Trustee
may select for redemption portions of the principal of the Notes that have
denominations larger than (euro)1,000. The Trustee shall promptly notify the
Company of the Notes selected for redemption and, in the case of any Notes
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture unless the context otherwise requires,
provisions of this Indenture that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
Section 3.03. Notice of Redemption.
--------------------
(a) Notice of redemption shall be mailed by first class mail
at least 30 but not more than 60 calendar days before the Redemption Date to
each Holder of Notes to be redeemed at its registered address. If any Note is to
be redeemed in part only, the notice of redemption that relates to such Note
shall state the portion of the principal amount thereof to be redeemed.
(b) In addition to the foregoing, all notices will, if and
so long as the Notes are listed on the Luxembourg Stock Exchange and the rules
of such stock exchange so require, be published in a daily newspaper having
general circulation in Luxembourg. For Notes in the form of Global Notes held on
behalf of any Depositary, notices may be given by delivery of the relevant
notices to such Depositary for communication to entitled account holders in
substitution of the aforesaid publication.
(c) The notice shall identify the Notes to be redeemed
(including the ISIN number(s) or Common Code(s) thereof) and shall state:
(1) the Redemption Date;
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(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of
the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered
to the Paying Agent to collect the redemption price;
(6) that unless the Company defaults in making the
redemption payment, interest on Notes called for redemption ceases to
accrue on and after the Redemption Date;
(7) the paragraph of Section 3.07 hereof pursuant to
which the Notes called for redemption are being redeemed;
(8) the aggregate principal amount of Notes that are
being redeemed; and
(9) that no representation is made as to the correctness
or accuracy of the ISIN number(s) or Common Code(s) printed in the
notice or on the Note.
At the Company's request, the Trustee shall give the notice
of redemption in the Company's name and at the Company's sole expense.
Section 3.04. Effect of Notice of Redemption.
------------------------------
Once the notice of redemption described in Section 3.03 is
given or otherwise mailed, Notes called for redemption become due and payable on
the Redemption Date and at the redemption price, including any premium, plus
interest accrued to the Redemption Date. Upon surrender to the Paying Agent,
such Notes shall be paid at the redemption price, including any premium, plus
interest accrued to the Redemption Date, provided that if the Redemption Date is
after a regular interest payment record date and on or prior to the Interest
Payment Date, the accrued interest shall be payable to the Holder of the
redeemed Notes registered on the relevant record date, and provided, further,
that if a Redemption Date is a Legal Holiday, payment shall be made on the next
succeeding Business Day and no interest shall accrue for the period from such
Redemption Date to such succeeding Business Day. Failure to give notice or any
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defect in the notice to any Holder shall not affect the validity of the notice
to any other Holder.
Section 3.05. Deposit of Redemption Price.
---------------------------
On or prior to 10:00 A.M., London time, on each Redemption
Date, the Company shall deposit with the Paying Agent in immediately available
funds Euro sufficient to pay the redemption price of and accrued interest on all
Notes to be redeemed on that date other than Notes or portions thereof called
for redemption on that date which have been delivered by the Company to the
Trustee for cancellation.
On and after any Redemption Date, if Euro sufficient to pay
the redemption price of and accrued interest on Notes called for redemption
shall have been made available in accordance with the preceding paragraph, the
Notes called for redemption will cease to accrue interest and the only right of
the Holders of such Notes will be to receive payment of the redemption price of
and, subject to the first proviso in Section 3.04, accrued and unpaid interest
on such Notes to the Redemption Date. If any Note called for redemption shall
not be so paid, interest will be paid, from the Redemption Date until such
redemption payment is made, on the unpaid principal of the Note and any interest
not paid on such unpaid principal, in each case, at the rate and in the manner
provided in the Notes.
Section 3.06. Notes Redeemed in Part.
----------------------
Upon surrender and cancellation of a Note that is redeemed in
part, the Company shall execute and the Trustee shall authenticate for a Holder
a new Note equal in principal amount to the unredeemed portion of the Note
surrendered.
Section 3.07. Redemption.
----------
(a) The Notes are redeemable, in whole or in part, at the
option of the Company, at any time and from time to time on or after July 1,
2005 at the redemption prices (expressed as percentages of principal amount),
set forth below plus accrued and unpaid interest to the Redemption Date, if
redeemed during the twelve-month period beginning on July 1 of the years
indicated below:
Year Percentage
---- ----------
2005....................................... 104.875%
2006....................................... 102.438%
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2007 and thereafter........................ 100.000%
(b) At any time, or from time to time, on or prior to July
1, 2004, the Company may, at its option, use the Net Proceeds of one or more
Public Equity Offerings to redeem up to 35% of the Notes at a redemption price
equal to 109.75% of the principal amount thereof plus accrued and unpaid
interest to the Redemption Date; provided that at least 65% of the principal
amount of Notes originally issued (including the principal amount of Additional
Notes issued in exchange therefore) remain outstanding immediately after any
such redemption. For purposes of determining whether the condition in the
proviso is satisfied, Notes owned by the Company or any of its Affiliates shall
be deemed not to be outstanding. The Company must make such redemption not more
than 90 days after receipt of the Net Proceeds of any such Public Equity
Offering.
(c) The Notes will be subject to redemption as a whole, but
not in part, at the option of the Company (a "Tax Redemption") at any time upon
not less than 30 nor more than 60 calendar days' notice mailed to each Holder of
Notes to be redeemed at 100% of the principal amount thereof on the date of
redemption, together with accrued and unpaid interest thereon, if any, to the
Redemption Date, in the event the Company has become or would be obligated to
pay, on any date on which any amount would be payable with respect to the Notes,
any material Additional Amounts as a result of any change in or amendment to the
laws or treaties (including any regulation or ruling promulgated thereunder) of
the Hellenic Republic (or any prefecture, territory or taxing authority thereof
or therein), or any change in or amendment to any official position or
administration or assessing practices regarding the application or
interpretation of such laws, treaties, rulings or regulations, which change or
amendment is announced or becomes effective on or after the Issue Date;
provided, that the Notes will not be subject to a Tax Redemption in the event of
any change in or amendment to Law No. 128 of 1975 or in the application or
interpretation thereof that results in the imposition of any Tax not exceeding
0.6% per annum of the aggregate outstanding principal amount of the Notes; and
provided, further, that prior to any such Tax Redemption, the Company will use
its reasonable efforts to cause the reduction or elimination of the obligation
to pay any such material Additional Amounts.
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ARTICLE 4
COVENANTS
Section 4.01. Payment of Notes.
----------------
The Company shall pay the principal of and interest (including
all Liquidated Damages (as defined in the Registration Rights Agreement) as
provided in the Registration Rights Agreement) on the Notes on the dates and in
the manner provided in the Notes and this Indenture. An installment of principal
or interest shall be considered paid on the date it is due if the Trustee or
Paying Agent holds on that date Euro designated for and sufficient to pay such
installment.
The Company shall pay interest on overdue principal (including
post-petition interest in a proceeding under any Bankruptcy Law) and overdue
interest, to the extent lawful, at the rate specified in the Notes.
Section 4.02. Provision of Financial Statements and Other Information.
-------------------------------------------------------
(a) Subject to clause (b) hereof, the Company shall deliver
to the Trustee (including sufficient copies to be delivered to the Holders by
the Trustee) within 15 calendar days after the filing of the same with the
Commission, copies of the quarterly and annual reports and other reports, if
any, which the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act or pursuant to this Xxxxxx 0.00. Xx all
times when the Company is not subject to the reporting requirements of Section
13 or 15(d) of the Exchange Act, the Company will nonetheless file with the
Commission, to the extent permitted by the Commission, and regardless of any
such filing provide the Trustee within 15 calendar days of the filing thereof
with the Commission (or within 15 calendar days of when filing would ordinarily
be required if not then permitted) (including sufficient copies to be delivered
to the Holders by the Trustee) with such quarterly and annual reports and other
reports specified in clause (b) below. Upon qualification of this Indenture
under the TIA, the Company shall also comply with the provisions of TIA Section
314(a).
(b) The Company shall (i) within 90 calendar days after the
end of its fiscal year file (or provide to the Trustee in accordance with clause
(a) above if filing is not then permitted) annual reports referred to in the
foregoing clause
-40-
(a) on Form 20-F (or any successor form) containing the information required to
be contained therein (or required in such successor form), which shall include
consolidated financial statements and notes thereto, together with a report
thereon expressed by an independent accounting firm and management's discussion
and analysis of financial condition and results of operations; (ii) within 45
calendar days after the end of each of the first, second and third fiscal
quarters of each fiscal year, file (or provide to the Trustee in accordance with
clause (a) above if filing is not then permitted) reports on Form 6-K (or any
successor form) containing substantially the same information required to be
contained in Form 10-Q (or required in any successor form), which shall include
unaudited consolidated financial statements and management's discussion and
analysis of financial condition and results of operations for the first three
quarters of each fiscal year; and (iii) promptly from time to time after the
occurrence of any event required to be therein reported, such other reports on
Form 6-K (or any successor form) containing substantially the same information
required to be contained in Form 6-K (or required in any successor form) and
Form 8-K (or required in any successor form). Each of the reports shall be
prepared in accordance with GAAP, as then in effect, consistently applied and
shall be prepared in accordance with the applicable rules and regulations of the
Commission.
(c) The Company will, upon request, provide to any Holder of
Notes or any prospective transferee of any such Holder any information
concerning the Company (including financial statements) necessary in order to
permit such Holder to sell or transfer Notes in compliance with Rule 144 and
Rule 144A under the Securities Act.
(d) Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder (as to which the
Trustee is entitled to conclusively rely exclusively on Officers' Certificates).
Section 4.03. Waiver of Stay, Extension or Usury Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do
so) that it will not at any time insist upon, or plead (as a defense or
otherwise) or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law
-41-
or any usury law or other law which would prohibit or forgive the Company from
paying all or any portion of the principal of, premium, if any, 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 4.04. Compliance Certificate.
----------------------
(a) The Company shall deliver to the Trustee, within 120
calendar days after the end of each fiscal year and on or before 60 calendar
days after the end of the first, second and third quarters of each fiscal year,
an Officers' Certificate (one of the signers of which shall be the principal
executive officer, principal financial officer or principal accounting officer
of the Company) stating that a review of the activities of the Company and its
Subsidiaries during such fiscal year or fiscal quarter, as the case may be, has
been made under the supervision of the signing Officers with a view to
determining whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such Officer
signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in
this Indenture and, in the case of Restricted Payments, listing all Restricted
Payments for such quarter, and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all or such Defaults
or Events of Default of which he or she may have knowledge and what action each
is taking or proposes to take with respect thereto) and that to the best of his
or her knowledge no event has occurred and remains in existence by reason of
which payments on account of the principal of or interest, if any, on the Notes
are prohibited or if such event has occurred, a description of the event and
what action the Company is taking or proposes to take with respect thereto.
(b) The Company will, so long as any of the Notes are
outstanding, deliver to the Trustee, forthwith upon any Officer becoming aware
of any Default or Event of Default, an Officers' Certificate specifying such
Default or Event of Default
-42-
and what action the Company is taking or proposes to take with respect thereto.
Section 4.05. Taxes.
-----
The Company shall, and shall cause each of its Subsidiaries
to, pay prior to delinquency all material taxes, assessments, and governmental
levies except as contested in good faith and by appropriate proceedings.
Section 4.06. Limitation on Additional Indebtedness.
-------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, create, incur, assume, issue, guarantee or in any manner
become, directly or indirectly, liable for or with respect to the payment of
("incur"), any Indebtedness, including, without limitation, any Acquired
Indebtedness, except for Indebtedness falling within at least one of the
following categories:
(a) Indebtedness under the Notes and this Indenture in the
aggregate principal amount of(euro)150,000,000;
(b) Indebtedness of the Company and its Subsidiaries
outstanding on the Issue Date after giving effect to the application of
the proceeds from the sale of the Notes as described in the Offering
Memorandum;
(c) Indebtedness of the Company and its Subsidiaries under
one or more Bank Credit Agreements in an aggregate principal amount at
any one time outstanding not to exceed (euro)40,000,000;
(d) Indebtedness of the Company, if at the time of
incurrence and after giving effect thereto, no Default or Event or
Default exists and the Company's Fixed Charge Coverage Ratio would have
been at least 2.0 to 1;
(e) Indebtedness of the Company or any of its Subsidiaries,
not to exceed (euro)10,000,000 in aggregate principal amount at any one
time outstanding, incurred in connection with or arising out of
Capitalized Lease Obligations or purchase money Indebtedness;
(f) obligations under Interest Rate Protection Obligations
and Currency Protection Obligations incurred in the ordinary course of
business to the extent that such obligations have been entered into for
bona fide hedging
-43-
purposes and not for speculation or other purposes; provided that,
with respect to Interest Rate Protection Obligations, the notional
principal amount of such Indebtedness does not exceed, at the time
of the incurrence of such Indebtedness, the principal amount of
Indebtedness to which such Interest Rate Protection Obligations
relate;
(g) replacements, renewals, refinancings and extensions of
the Indebtedness incurred under the immediately preceding clauses (b)
or (d); provided, that (x) any such replacement, renewal, refinancing
or extension is scheduled to mature either (a) no earlier than the
Indebtedness being replaced, renewed, refinanced or extended, or (b)
after the Maturity Date of the Notes, (y) the portion, if any, of such
replacement, renewal, refinancing or extension that is scheduled to
mature on or prior to the Maturity Date of the Notes has a weighted
average life to maturity at the time such Indebtedness is incurred that
is equal to or greater than the weighted average life to maturity of
the portion of the Indebtedness being replaced, renewed, refinanced or
extended that is scheduled to mature on or prior to the Maturity Date
of the Notes, and (z) any such replacement, renewal, refinancing or
extension shall not exceed the principal amount (plus accrued interest
and prepayment premium, if any) of the Indebtedness being replaced,
renewed, refinanced or extended plus the amount of reasonable fees
incurred to incur such Indebtedness;
(h) Indebtedness of the Company owing to and held by any
Subsidiary of the Company or Indebtedness of a Subsidiary owing to and
held by the Company or any other Subsidiary of the Company; provided,
however, that any subsequent transfer or any other event which results
in any such Subsidiary ceasing to be a Subsidiary of the Company or any
subsequent transfer of any such Indebtedness (except to the Company or
another Subsidiary) would be deemed, in each case, to constitute the
incurrence of such Indebtedness by the issuer thereof;
(i) Indebtedness not to exceed (euro)500,000 at any time
outstanding incurred by the Company or any of its Subsidiaries
constituting reimbursement obligations with respect to letters of
credit issued in the ordinary course of business, including without
limitation, letters of credit in respect of workers' compensation
claims or self-insurance, or other Indebtedness with respect to
reimbursement type obligations regarding workers' compensation
-44-
claims; provided, however, that upon the drawing of such letters of
credit or the incurrence of such Indebtedness, such obligations are
reimbursed within 30 calendar days following such incurrence;
(j) guarantees by the Company of Indebtedness of one or more
Persons engaged in the media and entertainment businesses and
businesses reasonably related thereto and with whom the Company has a
cooperation agreement in an aggregate principal amount at any one time
outstanding pursuant to this clause (j) not to exceed (euro)10,000,000;
and
(k) Indebtedness not otherwise permitted to be incurred
pursuant to clauses (a) through (j) above, which, together with any
other outstanding Indebtedness incurred pursuant to this clause (k) has
an aggregate principal amount not in excess of (euro)10,000,000 at any
one time outstanding.
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, incur any Indebtedness which by its
terms (or by the terms of any agreement governing such Indebtedness) is
subordinated in right of payment to any other Indebtedness of the Company unless
such Indebtedness is also by its terms (or by the terms of any agreement
governing such Indebtedness) made expressly subordinate in right of payment to
the Notes pursuant to subordination provisions that are substantively identical
to the subordination provisions of such Indebtedness (or such agreement) that
are most favorable to the holders of any other Indebtedness of the Company.
Indebtedness shall be deemed to have been incurred by the
survivor of a merger, at the time of such merger, and with respect to an
acquired Subsidiary, at the time of such acquisition.
For purposes of determining compliance with any restriction on
the incurrence of Indebtedness in Euro where Indebtedness is denominated in a
different currency, the amount of such Indebtedness will be the Euro Equivalent
determined on the date of such determination; provided, however, that if any
such Indebtedness denominated in a different currency is subject to a Currency
Protection Obligation with respect to Euro covering principal amounts payable on
such Indebtedness, the amount of such Indebtedness expressed in Euro will be
adjusted to take into account the effect of such obligation. Notwithstanding any
other provision of this covenant, for purposes of determining compliance with
this covenant, increases in Indebtedness
-45-
solely due to fluctuations in the exchange rates of currencies will not be
deemed to exceed the maximum amount of Indebtedness that the Company or any
Subsidiary may incur under this covenant.
For purposes of determining compliance with this covenant, (1)
the outstanding principal amount of any particular Indebtedness shall be counted
only once and any obligation arising under any guarantee, Lien, letter of credit
or similar instrument supporting such Indebtedness shall be disregarded and (2)
in the event that an item of Indebtedness meets the criteria of more than one of
the categories of Permitted Indebtedness described in clauses (a) through (k)
above, the Company shall, in its sole discretion, classify or, from time to
time, reclassify such item of Indebtedness in any manner that complies with this
covenant and such item of Indebtedness will be treated as having been incurred
pursuant to only one of such clauses.
Section 4.07. Limitation on Restricted Payments.
---------------------------------
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, make any Restricted Payment, unless:
(a) no Default or Event of Default will have occurred and be
continuing at the time of or after giving effect to such Restricted
Payment;
(b) immediately after giving effect to such Restricted
Payment, the aggregate amount of all Restricted Payments declared or
made after the Issue Date does not exceed the sum of (1) 50% of the
Company's cumulative Consolidated Net Income (or in the event such
cumulative Consolidated Net Income is a deficit, minus 100% of such
deficit) from the Issue Date, (2) 100% of the aggregate Net Proceeds
received by the Company (other than from a Subsidiary of the Company)
as a capital contribution to the common equity of the Company after the
Issue Date and from the issue or sale, after the Issue Date, of Capital
Stock (other than Disqualified Capital Stock) of the Company (excluding
any such Net Proceeds received from issuances and sales financed
directly or indirectly using funds borrowed from the Company or any
Subsidiary of the Company, until and to the extent such borrowing is
repaid) or any Indebtedness or other securities of the Company
convertible into or exercisable for Capital Stock (other than
Disqualified Capital Stock) of the Company which has
-46-
been so converted or exercised, as the case may be, and (3)
(euro)5,000,000; and
(c) at the time of such Restricted Payment, the Company
could incur (euro)1.00 of additional Indebtedness pursuant to clause
(d) of Section 4.06 hereof.
For purposes of determining the amount expended for Restricted
Payments, cash distributed shall be valued at the face amount thereof and
property other than cash shall be valued at its Fair Market Value.
The provisions of this Section 4.07 will not prohibit the
following (each, a "Permitted Payment"): (i) the payment of any dividend within
60 calendar days after the date of declaration thereof, if at such date of
declaration such payment would comply with the provisions of this Indenture,
(ii) the payment, defeasance, purchase, redemption, prepayment, acquisition or
retirement of any Capital Stock of the Company or Indebtedness of the Company
that is subordinate in right of payment to the Notes, by conversion into or by
an exchange for, Capital Stock of the Company that is not Disqualified Capital
Stock or out of the Net Proceeds of the substantially concurrent sale (other
than to a Subsidiary of the Company and other than such issuances or sales
financed directly or indirectly by the Company or its Subsidiaries except to the
extent such financing has been repaid) of other Capital Stock (other than
Disqualified Capital Stock) of the Company; provided that such proceeds are not
included in paragraph (b) above, (iii) the redemption or retirement of
Indebtedness of the Company that is subordinate in right of payment to the Notes
in exchange for, by conversion into, or out of the Net Proceeds of, a
substantially concurrent sale of Indebtedness of the Company (other than to a
Subsidiary of the Company) that is contractually subordinated in right of
payment to the Notes and that is permitted to be incurred in accordance with
clause (g) of Section 4.06 hereof, (iv) purchases of Capital Stock deemed to
occur upon the exercise of stock options if such Capital Stock represents a
portion of the exercise price thereof, (v) at any time while the Company's
Common Stock is listed on the Athens Stock Exchange, so long as no Default shall
have occurred and be continuing, dividends on such Common Stock in an amount
mandated by applicable law and (vi) any required purchase of subordinated
Indebtedness in connection with a change of control, provided that any such
change of control also constitutes a Change of Control under this Indenture;
provided, however, that such purchase shall only be made after the Company has
first satisfied its obligations under Section 4.15 hereof.
-47-
In determining the amount of Restricted Payments permissible
under clause (b) above, amounts expended pursuant to clauses (i), (iv), (v) and
(vi) in the preceding paragraph shall be included, but without duplication, as
Restricted Payments.
Section 4.08. Disposition of Proceeds of Asset Sales.
--------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, consummate any Asset Sale unless (i)
the consideration received in respect of such Asset Sale is at least equal to
the Fair Market Value of the assets subject to such Asset Sale and (ii) at least
75% of the value of the consideration therefrom received by the Company or such
Subsidiary is in the form of (A) cash or Cash Equivalents, (B) assets to be
owned by and used in the business of the Company or any of its Subsidiaries or
(C) the assumption by the Person acquiring the assets in such Asset Sale of
Indebtedness of the Company or any of its Subsidiaries with the effect that none
of the Company or any of its Subsidiaries will have any obligation with respect
to such Indebtedness. The Company or the applicable Subsidiary, as the case may
be, will either (x) within 270 calendar days apply the Net Asset Sale Proceeds
from such Asset Sale to permanently repay Indebtedness under a Bank Credit
Agreement, including a permanent reduction in any related loan commitment
thereunder, and, to the extent required, to tender for and repurchase any
Existing Notes or (y) commit within 270 calendar days of such Asset Sale to
apply the Net Asset Sale Proceeds from such Asset Sale, and within 360 calendar
days thereof (the "Reinvestment Date") apply such Net Asset Sale Proceeds, to
invest in a Permitted Related Investment or (z) apply any Net Asset Sale
Proceeds from any Asset Sale that are not applied pursuant to clause (x) or (y)
above (such amounts, "Excess Proceeds") as provided below.
When the aggregate amount of Excess Proceeds equals or exceeds
(euro)5,000,000, the Company will make an offer to purchase (an "Asset Sale
Offer") ratably from all Holders of the Notes and all holders of notes of the
Company which rank pari passu with the Notes and which notes require an
equivalent asset sale offer (the "Other Notes"), not more than 60 calendar days
thereafter (the "Excess Proceeds Payment Date") that portion of outstanding
Notes and Other Notes purchasable with such Excess Proceeds, at a price in cash
equal to 100% of the principal amount thereof plus accrued and unpaid interest,
if any, thereon to the Excess Proceeds Payment Date. To the extent that the
Asset Sale Offer is not fully subscribed, the Company may use the unutilized
portion of such Excess Proceeds for
-48-
general corporate purposes. If the aggregate principal amount, plus accrued and
unpaid interest, if any, thereon of Notes validly tendered and not withdrawn by
Holders thereof exceeds the Excess Proceeds available to purchase such Notes,
Notes to be purchased will be selected by the Trustee on a pro rata basis based
upon amounts tendered (with such adjustments as may be deemed appropriate by the
Company so that only Notes in denominations of (euro)1,000, or integral
multiples thereof, shall be purchased). Upon completion of such Asset Sale
Offer, the amount of Excess Proceeds will be reset to zero.
In the event of the transfer of substantially all (but not
all) of the property and assets of the Company and its Subsidiaries as an
entirety to a Person in a transaction permitted under Section 5.01 hereof, the
Surviving Entity shall be deemed to have sold the properties and assets of the
Company and its Subsidiaries not so transferred for purposes of the second
paragraph of this Section 4.08, and will comply with the Asset Sale provisions
of this Indenture with respect to such deemed sale as if it were an Asset Sale.
In addition, the Fair Market Value of such properties and assets of the Company
or its Subsidiaries deemed to be sold pursuant to this paragraph will be deemed
to be Net Asset Sale Proceeds for purposes of the Asset Sale provisions of this
Indenture.
If an offer is made to repurchase the Notes in an Asset Sale
Offer, the Company will comply with any tender offer rules under the Exchange
Act, including, but not limited to, Rule 14e-1 thereunder, and any other
applicable laws, rules and regulations in connection with any such offer. To the
extent that the provisions of any United States federal or state securities laws
and regulations conflict with this Section 4.08, the Company shall comply with
the applicable United States federal or state securities laws and regulations
and shall not be deemed to have breached its obligations under this Section 4.08
by virtue thereof.
If the Company is required to make an Asset Sale Offer, the
Company or, at the Company's request, the Trustee in the Company's name and at
the Company's sole expense, shall mail, not less than 30 calendar days nor more
than 60 calendar days preceding the Excess Proceeds Payment Date, a notice to
the Holders with, if mailed by the Company, a copy to the Trustee stating, among
other things: (1) that such Holders have the right to require the Company to
apply the available Excess Proceeds to repurchase such Notes at a purchase price
in cash equal to 100% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Excess Proceeds Payment Date;
-49-
(2) the Excess Proceeds Payment Date, which shall be no earlier than 30 calendar
days and not later than 60 calendar days from the Reinvestment Date; (3) the
instructions, determined by the Company, that each Holder must follow in order
to have such Notes repurchased; and (4) the calculations used in determining the
amount of Excess Proceeds to be applied to the repurchase of such Notes. The
Asset Sale Offer shall remain open for a period of 20 Business Days following
its commencement or such longer period as may be required by law (the "Offer
Period"). The notice, which shall govern the terms of the Asset Sale Offer,
shall state:
(1) that the Asset Sale Offer is being made pursuant to this
Section 4.08 and the length of time the Asset Sale Offer will remain
open;
(2) the purchase price and the Excess Proceeds Payment Date;
(3) that any Note not tendered or accepted for payment will
continue to accrue interest;
(4) that any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest on and after the Excess
Proceeds Payment Date;
(5) that Holders electing to have a Note purchased pursuant to
any Asset Sale Offer will 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 prior
to the close of business on the third Business Day before the Excess
Proceeds Payment Date in order to collect the purchase price;
(6) that Holders will be entitled to withdraw their election
if the Paying Agent receives, not later than the expiration of the
Offer Period, a facsimile transmission or letter setting forth the name
of the Holder, the principal amount of the Note the Holder delivered
for purchase (including, if any, the ISIN number or Common Code and the
certificate number of such Note) and a statement that such Holder is
withdrawing his election to have the Note purchased;
(7) that, if the aggregate principal amount of Notes
surrendered by Holders exceeds the available Excess
-50-
Proceeds, the Company shall select the Notes to be purchased on a
pro rata basis based upon amounts tendered (with such adjustments as
may be deemed appropriate by the Company so that only Notes in
denominations of (euro)1,000, or integral multiples thereof, shall
be purchased); and
(8) that Holders whose Notes were purchased only in part will
be issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered; provided that each Note purchased and
each such new Note issued shall be in an original principal amount in
denominations of (euro)1,000 and integral multiples thereof.
On or before the Excess Proceeds Payment Date, the Company
shall, to the extent lawful, accept for payment, on a pro rata basis to the
extent necessary, Notes or portions thereof tendered pursuant to the Asset Sale
Offer, deposit with the Paying Agent Euro sufficient to pay the purchase price
plus accrued interest, if any, to the Excess Proceeds Payment Date on the Notes
to be purchased and deliver to the Paying Agent 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 4.08. The Paying Agent shall promptly
(but in any case not later than 5 calendar days after the Excess Proceeds
Payment Date) mail or deliver to each tendering Holder an amount equal to the
purchase price of the Note tendered by such Holder and accepted by the Company
for purchase, and the Company shall promptly execute and issue a new Note, and
the Trustee shall promptly authenticate and mail or make available for delivery
such new Note to such Holder equal in principal amount to any unpurchased
portion of the Note surrendered; provided that each such Note shall be issued in
an original principal amount in denominations of (euro)1,000 and integral
multiples thereof. Any Note not so accepted shall be promptly mailed or
delivered by the Company to the Holder thereof.
In addition to the foregoing, all notices with respect to an
Asset Sale Offer will, if and so long as the Notes are listed on the Luxembourg
Stock Exchange will be provided in accordance with the terms of Section 3.03(b)
hereof.
Section 4.09. Limitation on Transactions with Affiliates.
------------------------------------------
The Company will not, and will not cause or permit any of its
Subsidiaries to, directly or indirectly, enter into any transaction (including,
without limitation, the purchase,
-51-
sale, lease or exchange of any property or the rendering of any service or the
lending of any funds) with or for the benefit of any of its Affiliates (each, an
"Affiliate Transaction"), other than such transactions as are entered into and
conducted in good faith and which are on terms that are fair to the Company or
such Subsidiary and materially no less favorable to the Company or such
Subsidiary than those that could have been obtained in a comparable transaction
on an arm's-length basis from a Person that is not an Affiliate. All Affiliate
Transactions or series of Affiliate Transactions involving aggregate payments or
other market value in excess of (euro)1,000,000 per calendar year must also be
approved, prior to the consummation thereof, by a majority of the disinterested
members of the Board of Directors of the Company and evidenced by a Board
Resolution. Any Affiliate Transaction or series of Affiliate Transactions
involving aggregate payments or other market value in excess of (euro)5,000,000
per calendar year, or as to which there are no disinterested directors, is also
subject to the further requirement that the Company obtain an opinion of an
Independent Financial Advisor with experience in appraising the terms and
conditions of the relevant type of transaction (or series of transactions)
stating that the transaction (or a series of transactions) is fair, from a
financial point of view, to the Company or such Subsidiary.
The foregoing restrictions will not apply to (i) transactions
between the Company and any of its Wholly-Owned Subsidiaries or among its
Wholly-Owned Subsidiaries, (ii) reasonable and customary fees and compensation
and indemnification and similar arrangements with officers, directors, employees
or consultants of the Company and its Subsidiaries and payments thereunder,
(iii) arrangements in effect on the Issue Date and amendments or renewals
thereof that are not more disadvantageous to the Holders in any material respect
than the original arrangements as in effect on the Issue Date and that, in any
case, are on terms materially no less favorable to the Company or such
Subsidiary than those that could have been obtained in a comparable transaction
on an arm's-length basis from a Person that is not an Affiliate, (iv)
transactions permitted by and complying with the provisions of Section 5.01
hereof, (v) transactions with a Person that is an Affiliate of the Company
solely because the Company owns voting securities of such Person and (vi)
Restricted Payments (including Permitted Payments) made in accordance with
Section 4.07 hereof.
-52-
Section 4.10. Limitations on Liens.
--------------------
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien (other than a Permitted Lien) of any kind upon any of its
property or assets now owned or hereafter acquired by it unless the Notes are
equally and ratably secured by such Lien; provided that if the Indebtedness
secured by such Lien is subordinate or junior in right of payment to the Notes
then the Lien securing such Indebtedness shall be subordinate or junior in
priority to the Lien securing the Notes at least to the same extent as such
Indebtedness is subordinate or junior to the Notes.
Section 4.11. Limitations on Investments, Loans and Advances.
----------------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, make any capital contributions, advances or loans to, or
investments in (including by way of guarantee) or purchases of Capital Stock or
other securities of any Person (collectively, "Investments"), except: (i)
Investments by the Company in or to any Subsidiary of the Company and
Investments by a Subsidiary of the Company in or to the Company or a Subsidiary
of the Company (or a person who becomes a Subsidiary as a result of such
Investment or who mergers or consolidates into the Company or a Subsidiary of
the Company); provided, that the Company will not transfer to any of its
Subsidiaries or such Person broadcast assets (other than transfers of inventory
in the ordinary course of business), or proceeds from the sale of broadcast
assets to third parties except in a transaction that complies with Section 4.08
hereof; (ii) Investments represented by accounts receivable created or acquired
in the ordinary course of business and Investments received in respect thereof
upon the bankruptcy, reorganization or insolvency of the payor; (iii)
Investments under or pursuant to Interest Rate Protection Obligations or
Currency Protection Obligations, in each case, entered into for hedging and not
for speculative purposes; (iv) the making of Investments in joint ventures,
partnerships or Persons that are not Subsidiaries of the Company (a) in which
the Company owns not less than 20% of the Capital Stock (including not less than
20% of the voting power of the Common Stock) of such Person and otherwise the
Company has the right to designate a majority of the directors of the board of
directors (or such similar governing body) entitled to vote on all matters of
general corporate governance of such Person, in an amount not to exceed
(euro)20,000,000 at any one time outstanding, plus (b) investments in an entity
or entities that own or
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operate a digital satellite platform to distribute programming content in
Greece, in an amount not to exceed (euro)30,000,000 at any one time outstanding,
plus (c) such that after giving effect thereto, the aggregate amount of such
Investments made after the Issue Date, less any amounts received in cash as a
return of capital or income with respect to any such Investment (but not in
excess of the amount of the initial Investment), would not exceed
(euro)10,000,000; provided that any such Investment pursuant to clause (a), (b)
or (c) above may be made solely in a business related to the Company's business;
(v) Investments in another Person which were received as consideration for an
Asset Sale in accordance with Section 4.08 hereof; (vi) Investments in Cash
Equivalents; (vii) Investments permitted to be made in accordance with Section
4.07 hereof; (viii) advances to employees in the ordinary course of business not
in excess of (euro)1,000,000 at any one time outstanding; (ix) loans and
advances to officers, directors and employees for business-related travel
expenses, moving expenses and other similar expenses, in each case incurred in
the ordinary course of business; (x) Investments the payment for which consists
exclusively of Capital Stock (excluding Disqualified Capital Stock) of the
Company; (xi) any transaction to the extent it constitutes an Investment that is
permitted by and made in accordance with the provisions of (a) the second
paragraph of Section 4.09 (except transactions described in clause (iii) of such
paragraph) or (b) clause (j) of Section 4.06; and (xii) an Investment in a joint
venture, other entity or Person that is not a Subsidiary of the Company, the
consideration of which consists of the Company's publishing business; provided
that (a) such joint venture or other entity is primarily engaged in the
publishing business and (b) the Company has the right to designate the majority
of the board of directors (or similar governing body) entitled to vote on all
matters of general corporate governance of such Person.
Section 4.12. Limitation on Sale-Leaseback Transactions.
-----------------------------------------
The Company will not, and will not permit any of its
Subsidiaries to, enter into, renew or extend any Sale-Leaseback Transaction
unless (i)(a) after giving effect to such Sale-Leaseback Transaction on a pro
forma basis, the Company is in compliance with Section 4.10 and could incur
Indebtedness pursuant to Section 4.06 hereof at least equal in amount to the
Attributable Debt associated with such Sale-Leaseback Transaction, and (b) the
sale price in such Sale-Leaseback Transaction is at least equal to the Fair
Market Value of such property, and the Company or such Subsidiary shall apply
the Net Asset Sale Proceeds of such sale in the manner provided under Section
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4.08 hereof, or (ii) the lease is between the Company and a Wholly-Owned
Subsidiary of the Company or between Wholly-Owned Subsidiaries of the Company.
Section 4.13. Payments for Consent.
--------------------
Neither the Company nor any of its Subsidiaries shall,
directly or indirectly, pay or cause to be paid any consideration, whether by
way of interest, fee or otherwise, to any Holder of any Notes for or as an
inducement to any consent, waiver or amendment of any of the terms or provisions
of this Indenture or the Notes unless such consideration is offered to be paid
or agreed to be paid to all Holders of the Notes which so consent, waive or
agree to amend in the time frame set forth in solicitation documents relating to
such consent, waiver or agreement.
Section 4.14. Corporate Existence.
-------------------
Subject to Article 5 hereof, the Company shall use all
reasonable efforts to preserve and keep in full force and effect (i) its
corporate existence, and the corporate, partnership or other existence of each
Subsidiary, in accordance with the respective organizational documents (as the
same may be amended from time to time) of each Subsidiary and (ii) the rights
(charter and statutory), licenses and franchises of the Company and its
Subsidiaries; provided, however, that the Company shall not be required to
preserve any such right, license or franchise, or the corporate, partnership or
other existence of any of its Subsidiaries, if the Board of Directors shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company and its Subsidiaries, taken as a whole, and that the
loss thereof is not adverse in any material respect to the Holders.
Section 4.15. Change of Control.
-----------------
(a) Upon the occurrence of a Change of Control (the date of
such occurrence being the "Change of Control Date"), the Company or, at the
Company's request, the Trustee in the Company's name and at the Company's
expense, will notify the Holders with, if mailed by the Company, a copy to the
Trustee, in writing of such occurrence and will make an offer to purchase (the
"Change of Control Offer"), on a Business Day (the "Change of Control Payment
Date") not later than 60 Business Days following the Change of Control Date, all
Notes then outstanding at a purchase price equal to 101% of the aggregate
principal amount thereof, plus accrued and unpaid interest, if
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any, thereon to the Change of Control Payment Date (such purchase price being
hereinafter referred to as the "Change of Control Purchase Price") in accordance
with the procedures set forth in this Section 4.15. All Notes properly tendered
pursuant to such Change of Control Offer and not withdrawn pursuant thereto will
be purchased on the Change of Control Payment Date. The Change of Control Offer
shall remain open for at least 20 Business Days and until the close of business
on the Change of Control Payment Date.
(b) Notice of a Change of Control Offer will be mailed by
the Company to the Trustee and the Holders not less than 30 calendar days nor
more than 60 calendar days before the Change of Control Payment Date. Such
notice shall be sent by first-class mail, postage prepaid, to the Trustee and to
each Holder of the Notes at the address appearing in the register maintained by
the Registrar of the Notes, and shall state:
(i) that the Change of Control Offer is being made pursuant
to this Section 4.15, the length of time the Change of Control Offer
will remain open (which must be at least 20 Business Days) and that all
Notes tendered will be accepted for payment, and otherwise subject to
the terms and conditions set forth herein;
(ii) the Change of Control Purchase Price and the Change of
Control Payment Date;
(iii) that any Note not tendered or improperly tendered
will continue to accrue interest;
(iv) that, unless the Company defaults in the payment of the
Change of Control Purchase Price, any Notes accepted for payment
pursuant to the Change of Control Offer shall cease to accrue interest
after the Change of Control Payment Date;
(v) that Holders electing to have their 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 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 in order to
collect the purchase price;
(vi) that Holders will be entitled to withdraw their
election if the Paying Agent receives, not later than the
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close of business on the Change of Control Payment Date, a facsimile
transmission or letter setting forth the name of the Holder, the
principal amount of the Notes delivered for purchase (including, if
any, the ISIN number or Common Code and the certificate number of
such Notes), and a statement that such Holder is withdrawing his
election to have such Notes purchased;
(vii) that Holders whose Notes are being purchased only in
part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered, provided that each Note
purchased and each such new Note issued shall be in an original
principal amount in denominations of (euro)1,000 and integral multiples
thereof;
(viii) any other procedures that a Holder must follow to
accept a Change of Control Offer or effect withdrawal of such
acceptance; and
(ix) the name and address of the Paying Agent.
On the Change of Control Payment Date, the Company shall, to
the extent lawful, (i) accept for payment Notes or portions thereof tendered
pursuant to the Change of Control Offer, (ii) deposit with the Paying Agent Euro
sufficient to pay the Change of Control Purchase Price of all Notes or portions
thereof so tendered and (iii) deliver or cause to be delivered to the Paying
Agent an Officers' Certificate stating that such Notes or portions thereof were
accepted for purchase by the Company in accordance with the terms of this
Indenture. The Paying Agent shall promptly (but in any case not later than 5
calendar days after the Change of Control Payment Date) mail or deliver to each
Holder of Notes so accepted payment in an amount equal to the Change of Control
Purchase Price for such Notes, and the Company shall promptly execute and issue,
and the Trustee shall promptly authenticate and make available for delivery to
such Holder, new Notes equal in principal amount to any unpurchased portion of
the Notes surrendered; provided that each such new Note shall be issued in an
original principal amount in denominations of (euro)1,000 and integral multiples
thereof. Any Note not so accepted shall be promptly mailed or delivered by the
Company to the Holder thereof.
In addition to the foregoing, all notices with respect to a
Change of Control Offer will, if and so long as the Notes are listed on the
Luxembourg Stock Exchange will be provided in accordance with the terms of
Section 3.03(b) hereof.
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The Company will comply with any tender offer rules under the
Exchange Act which may then be applicable, including, but not limited to, Rule
14e-1 thereunder, and any other applicable laws, rules and regulations, in
connection with any Change of Control Offer. To the extent that the provisions
of any United States federal or state securities laws and regulations conflict
with this Section 4.15, the Company will comply with such applicable securities
laws and regulations and will not be deemed to have breached its obligations
under this Section 4.15 by virtue thereof.
Section 4.16. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain an office or agency where Notes may
be presented or surrendered for registration of transfer or exchange or for
payment and where notices and demands to or upon the Company in respect of the
Notes and this Indenture may be served. The Company 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 as set forth in Section 10.02 and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more
other offices or agencies where the Notes may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations.
The Company shall give prompt written notice to the Trustee of such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Corporate Trust
Office of the Trustee set forth in Section 10.02 as such office of the Company.
Section 4.17. Payments of Additional Amounts.
------------------------------
All payments made by the Company under or with respect to the
Notes will be made free and clear of and without withholding or deduction for or
on account of any present or future tax, duty, levy, impost, assessment or other
governmental charge (including penalties, interest and other liabilities related
thereto) imposed or levied by or on behalf of the
-58-
government of the Hellenic Republic or of any prefecture or territory thereof or
by any authority or agency therein or thereof having power to tax (hereinafter,
"Taxes"), unless the Company is required to withhold or deduct Taxes by law or
by the interpretation or administration thereof. If the Company is required to
withhold or deduct any amount for or on account of Taxes from any payment made
under or with respect to the Notes, the Company will pay such additional amounts
("Additional Amounts") as may be necessary so that the net amount received by
each Holder (including Additional Amounts) after such withholding or deduction
will not be less than the amount the Holder would have received if such Taxes
had not been withheld or deducted; provided that no Additional Amounts will be
payable with respect to a payment made to a Holder and no reimbursement shall be
made to a Holder for Taxes paid by such Holder (each such Holder), an "Excluded
Holder") with respect to any Tax imposed, levied, payable or due (i) by reason
of the Holder's or beneficial owner's present or former connection with the
Hellenic Republic or any prefecture or territory thereof, other than through the
mere receipt or holding of Notes or by reason of the receipt of payments
thereunder; (ii) by reason of the failure of the Holder or beneficial owner of
Notes to satisfy any certification, identification, information or other
reporting requirements which the Holder or such beneficial owner is legally
required to satisfy, whether imposed by statute, treaty, regulation,
administrative practice or otherwise, as a precondition to exemption from, or
reduction in the rate of deduction or withholding of, Taxes; or (iii) by reason
of the presentation (where presentation is required in order to receive payment)
of such Notes for payment more than 30 calendar days after the date such payment
became due and payable or was duly provided for under the terms of the Notes,
whichever is later. The obligation of the Company to pay Additional Amounts or
to reimburse a Holder for Taxes paid by such Holder in respect of Taxes shall
not apply with respect to (x) any estate, inheritance, gift, sales, transfer,
personal property or similar Taxes; (y) any Tax which is payable otherwise than
by deduction or withholding from payments made under or with respect to the
Notes; or (z) Taxes imposed on or with respect to any payment by the Company if
the beneficial owner of, or person ultimately entitled to obtain an interest in,
the Notes had been the Holder thereof and such beneficial owner would not have
been entitled to the payment of Additional Amounts by reason of clause (i), (ii)
or (iii) above. The Company will also (i) make such withholding or deduction
compelled by applicable law and (ii) remit the full amount deducted or withheld
to the relevant authority in accordance with applicable law. The Company will
furnish to the Holder, certified
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copies of tax receipts evidencing the payment of any Taxes by the Company in
such form as provided in the normal course by the taxing authority imposing such
Taxes and as is reasonably available to the Company, within 60 calendar days
after the date of receipt of such evidence. If notwithstanding the Company's
efforts to obtain such receipts, the same are not obtainable, the Company will
provide such Holder other evidence reasonably satisfactory to such Holder of
such payments by the Company. If the Company conducts business in any
jurisdiction (the "Taxing Jurisdiction") other than the Hellenic Republic in a
manner which causes Holders to be liable for taxes on payments under the Notes
for which they would not have been so liable but for such conduct of business in
the Taxing Jurisdiction, the above provisions of this Section 4.17 shall be
considered to apply to such Holders as if references in such provisions to
"Taxes" included taxes imposed by way of deduction or withholding by such Taxing
Jurisdiction and references to Excluded Holder shall be deemed to include
Holders or beneficial owners having a present or former connection with such
Taxing Jurisdiction or any prefecture or territory thereof. The Company will,
upon written request of any Holder (other than an Excluded Holder), reimburse
each such Holder for the amount of (i) any Taxes so levied or imposed and paid
by such Holder as a result of payments made under or with respect to the Notes,
and (ii) any Taxes so levied or imposed with respect to any reimbursement under
the foregoing clause (i) and paid by such Holder so that the net amount received
by such Holder (net of payments made under or with respect to the Notes) after
such reimbursement will not be less than the net amount the Holder would have
received if Taxes on such reimbursement had not been imposed. The Company will
not take any action or fail to act in any manner which will have the effect of
requiring the payment of any Additional Amounts such that the Company may
exercise its option to effect a Tax Redemption; provided, however, that the
Company and its Subsidiaries will not be required to change their jurisdiction
or alter their operations in any manner and will not be required to take any
other unreasonable act thereunder.
At least 30 calendar days prior to each date on which any
payment under or with respect to the Notes is due and payable, if the Company
will be obligated to pay Additional Amounts with respect to such payment (unless
such obligation to pay Additional Amounts arises after the 30th day prior to the
date on which payment under or with respect to the Notes is due and payable, in
which case it shall be promptly thereafter), the Company will deliver to the
Trustee an Officers' Certificate stating the fact that such Additional Amounts
will be
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payable and the amounts so payable and will set forth such other information
necessary to enable the Trustee to pay such Additional Amounts to Holders on the
payment date. Whenever in this Indenture there is mentioned, in any context, the
payment of principal, interest, if any, or any other amount payable under or
with respect to any Note, such mention shall be deemed to include mention of the
payment of Additional Amounts to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof.
Section 4.18. Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Subsidiaries.
----------------------
The Company will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective or enter into any agreement with any Person that would
cause any consensual encumbrance or restriction of any kind on the ability of
any Subsidiary of the Company to (a) pay dividends, in cash or otherwise, or
make any other distributions on its Capital Stock or any other interest or
participation in, or measured by, its profits owned by the Company or a
Subsidiary of the Company, (b) make any loans or advances to or pay any
Indebtedness owed to, the Company or any Subsidiary of the Company or (c)
transfer any of its properties or assets to the Company or to any Subsidiary of
the Company, except for (i) encumbrances or restrictions existing under or
contemplated by or by reason of the Notes and this Indenture, (ii) encumbrances
or restrictions existing under or contemplated by agreements as in effect on the
Issue Date, (iii) encumbrances or restrictions with respect to a Person that is
not a Subsidiary of the Company on the Issue Date, in existence at the time such
Person becomes a Subsidiary of the Company (but not created in contemplation of
such Person becoming such a Subsidiary), (iv) encumbrances or restrictions
existing under or by reason of applicable law, (v) encumbrances or restrictions
existing under or by reason of customary non-assignment provisions of agreements
entered into in the ordinary course of business and consistent with past
practices, (vi) encumbrances or restrictions existing by reason of any Lien
permitted under Section 4.10 hereof, (vii) encumbrances or restrictions existing
under any agreement for the sale of assets of the Company or any Subsidiary of
the Company, or the Capital Stock of any Subsidiary of the Company, (viii)
encumbrances or restrictions existing under any agreement that refinances,
replaces, renews or extends an agreement containing a restriction permitted by
clause (i), (ii) or (iii) above; provided, that the terms and conditions of any
such encumbrances or restrictions are not materially less favorable to
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the Holders than those under or pursuant to the agreement being replaced or the
agreement evidencing the Indebtedness refinanced or (ix) in the case of (c)
above, encumbrances or restrictions that restrict in a customary manner the
subletting, assignment or transfer of any property or asset that is a lease,
license, conveyance or contract or similar property or asset, arising by virtue
of any transfer of, agreement to transfer, option or right with respect to, or
Lien on, any property or asset of the Company or any Subsidiary not otherwise
prohibited by the terms of this Indenture or arising from or agreed to in the
ordinary course of business that, in such case, does not individually or in the
aggregate, detract from the value of property or assets of the Company or any
Subsidiary in any manner material to the Company and its Subsidiaries, taken as
a whole.
Section 4.19. Limitation on Business Activities.
---------------------------------
The Company and its Subsidiaries will not, directly or
indirectly, engage in any business other than the media and entertainment
businesses and businesses reasonably related thereto and the Company will not,
and will not cause or permit any of its Subsidiaries, directly or indirectly, to
become an "investment company" or a company "controlled by" an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. Limitation on Consolidation, Merger and Sale of Assets.
------------------------------------------------------
The Company will not consolidate with or merge with or into,
or sell, assign, convey, lease or transfer all or substantially all of its
properties and assets as an entirety to any Person in a single transaction or
through a series of transactions, unless: (a) the Company shall be the
continuing Person or the Person formed by such consolidation or into which the
Company is merged or transferred (the "Surviving Entity") shall be a corporation
or partnership organized and existing under the laws of the United States, any
state thereof or the District of Columbia or any member state of the European
Union as in existence on the date of this Indenture; (b) the Surviving Entity
shall expressly assume, by a supplemental indenture,
-62-
executed and delivered to the Trustee, in form and substance reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Notes and this Indenture; (c) immediately before and immediately after giving
effect to such transaction or series of transactions (including, without
limitation, any Indebtedness incurred or anticipated to be incurred in
connection with or in respect of such transaction or series of transactions), no
Default or Event of Default shall have occurred and be continuing; (d)
immediately after giving effect to such transaction, or series of transactions,
the Company or the Surviving Entity could incur at least (euro)1.00 of
additional Indebtedness pursuant to clause (d) of Section 4.06 hereof; and (e)
the Company or such Surviving Entity shall have delivered to the Trustee, an
Officers' Certificate and Opinion of Counsel stating that such consolidation,
merger, sale, assignment, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction or series of
transactions, such supplemental indenture, complies with the applicable
provisions herein and that all conditions precedent herein relating to the
transaction or series of transactions have been satisfied.
Section 5.02. Successor Person Substituted.
----------------------------
Upon any consolidation, merger, conveyance or any transfer of
all or substantially all of the assets of the Company in accordance with Section
5.01 above, the successor corporation formed by such consolidation or into which
the Company is merged or to which such transfer is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture and the Notes with the same effect as if such successor
corporation had been named as the Company herein, and thereafter the predecessor
corporation shall be relieved of all obligations and covenants under this
Indenture and the Notes.
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ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default.
-----------------
An "Event of Default" occurs if
(a) there is a Default in the payment of any interest on the
Notes when the same becomes due and such Default continues for a period
of 30 calendar days;
(b) there is a Default in the payment of the principal of,
or premium, if any, on the Notes when the same becomes due;
(c) the Company fails to comply with any of the terms or
provisions of Section 4.08 or 4.15 herein;
(d) there is a Default by the Company in the performance, or
a breach by the Company, of any other covenant in this Indenture (other
than Defaults specified in paragraphs (a), (b) or (c) above) and such
Default or breach continues for a period of 30 calendar days after
written notice specifying the Default to the Company by the Trustee or
to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the outstanding Notes;
(e) the Company or any Subsidiary fails (i) to make any
payment when due with respect to any other Indebtedness under one or
more classes or issues of Indebtedness in an aggregate principal amount
of (euro)5,000,000 or more; or (ii) to perform any term, covenant,
condition, or provision of one or more classes or issues of
Indebtedness in an aggregate principal amount of (euro)5,000,000 or
more, which failure, in the case of this clause (ii), results in an
acceleration of maturity thereof;
(f) one or more judgments, orders or decrees for the payment
of money in excess of (euro)5,000,000, either individually or in an
aggregate amount (unless covered by insurance by a reputable insurer as
to which the insurer has acknowledged coverage) shall be entered
against the Company or any Subsidiary of the Company or any of their
respective properties and shall not be discharged and there shall have
been a period of 60 calendar days during which
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a stay of enforcement of such judgment or order, by reason of pending
appeal or otherwise, shall not be in effect;
(g) the Company or any Material Subsidiary pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
or
(D) makes a general assignment for the benefit
of its creditors, or
(E) generally is not able to pay its debts as
they become due; or
(h) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Material Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company or any
Material Subsidiary or for all or substantially all of
the property of the Company or any Material Subsidiary,
or
(C) orders the liquidation of the Company or any
Material Subsidiary,
and the order or decree remains unstayed and in effect for 60 calendar
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any
similar federal, state or foreign law for the relief of debtors. The term
"Custodian" means any receiver, trustee, assignee, liquidator, custodian or
similar official under any Bankruptcy Law.
The Trustee may withhold notice as provided under Section 7.05
to the Holders of the Notes of any Default (except in payment of principal or
premium, if any, or interest on the
-65-
Notes) if the Trustee considers it to be in the interests of the Holders of the
Notes to do so.
Section 6.02. Acceleration.
------------
If an Event of Default (other than an Event of Default arising
under Section 6.01(g) or (h) relating to the Company) occurs and is continuing,
then the Trustee or the Holders of at least 25% in aggregate principal amount of
the outstanding Notes may, by written notice to the Company and the Trustee,
which notice shall specify the respective Event of Default, declare the entire
principal amount of all the outstanding Notes to be due and payable immediately,
together with all accrued and unpaid interest and premium, if any, thereon (such
aggregate principal amount, together with accrued and unpaid interest and
premium, if any, thereon, the "Default Amount"). Upon any such declaration, the
Default Amount shall become due and payable immediately. Notwithstanding the
foregoing, if an Event of Default specified in Section 6.01(g) or (h) relating
to the Company occurs, then the Default Amount 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.
After a declaration of acceleration, the Holders of a majority
in aggregate principal amount of outstanding Notes may, by notice to the
Trustee, rescind such declaration of acceleration if all existing Events of
Default have been cured or waived (other than the nonpayment of the Default
Amount that has become due solely because of the acceleration), and if the
rescission of acceleration would not conflict with any judgment or decree.
Section 6.03. Other Remedies.
--------------
If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy by proceeding at law or in equity to collect the
payment of principal of, or premium, if any, and interest on the Notes or to
enforce the performance of any provision of the Notes or this Indenture and may
take any necessary action requested of it as Trustee to settle, compromise,
adjust or otherwise conclude any proceedings to which it is a party.
The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an
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Event of Default shall not impair the right or remedy or constitute a waiver of
or acquiescence in the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative to the extent permitted by law.
Section 6.04. Waiver of Past Defaults and Events of Default.
---------------------------------------------
Subject to Sections 6.02, 6.07 and 8.02 hereof, the Holders of
a majority in aggregate principal amount of the outstanding Notes have, on
behalf of all Noteholders, the right to waive past Defaults under this Indenture
except a Default in the payment of the principal of, or interest or premium, if
any, on any Note, which cannot be waived without the consent of the Holder of
such Notes or in respect of a covenant or a provision which cannot be modified
or amended without the consent of all Holders. Upon any such waiver, such
Default shall cease to exist, and any Event of Default arising therefrom shall
be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other Default or Event of Default or
impair any right consequent thereto.
Section 6.05. Control by Majority.
-------------------
The Holders of a majority in principal amount of the
outstanding Notes have the right to 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 the Trustee by this Indenture. The Trustee,
however, may refuse to follow any direction that conflicts with any laws or
regulations or this Indenture or that the Trustee determines may be unduly
prejudicial to the rights of another Noteholder not taking part in such
direction, and the Trustee shall have the right to decline to follow any such
direction if the Trustee, being advised by counsel, determines that the action
so directed may not lawfully be taken or if the Trustee in good faith shall, by
a Trust Officer, determine that the proceedings so directed may involve it in
personal liability; provided that the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction. Prior to
taking any action hereunder, the Trustee shall be entitled to indemnification or
security satisfactory to it in its reasonable discretion against all losses,
liabilities, expenses or fees caused by taking or not taking such action.
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Section 6.06. Limitation on Suits.
-------------------
Subject to Section 6.07 below, no Holder has any right to
institute any proceeding with respect to this Indenture or pursue any remedy
thereunder unless:
(1) the Holders of at least 25% in aggregate principal amount
of the outstanding Notes make a written request to the Trustee to
institute such proceeding or pursue the remedy as Trustee;
(2) such Holder or Holders offer to the Trustee indemnity
reasonably satisfactory to the Trustee against any loss, liability,
expense or fee;
(3) the Trustee fails to institute such proceeding or pursue
such remedy within 60 calendar days after receipt of such notice and
the indemnity; and
(4) the Trustee has not received directions inconsistent with
such written request during such 60-day period by the Holders of a
majority in aggregate principal amount of the outstanding Notes.
A Noteholder may not use this Indenture to prejudice the
rights of another Noteholder or to obtain a preference or priority over another
Noteholder.
Section 6.07. Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the
right of any Holder of a Note to receive payment of principal of, or premium, if
any, or accrued interest, if any, on any Note held by such Holder 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, is absolute
and unconditional and shall not be impaired or affected without the consent of
the Holder.
Section 6.08. Collection Suit by Trustee.
--------------------------
If an Event of Default in payment of principal, premium or
interest specified in Section 6.01(a), (b) or (c) hereof occurs and is
continuing, the Trustee may recover judgment in its own name and as trustee of
an express trust against the Company for the whole amount of unpaid principal
and accrued interest remaining unpaid, together with interest on overdue
principal and, to the extent that payment of such
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interest is lawful, interest on overdue installments of interest, in each case
at the rate then borne by the Notes, and such further amounts as shall be
sufficient to cover the reasonable costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
Section 6.09. Trustee May File Proofs of Claim.
--------------------------------
The Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and the
Noteholders allowed in any judicial proceedings relative to the Company (or any
other obligor upon the Notes), its creditors or its property and shall be
entitled and empowered to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same after
deduction of its charges and expenses to the extent that any such charges and
expenses are not paid out of the estate in any such proceedings and any
custodian in any such judicial proceeding is hereby authorized by each
Noteholder 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
Noteholders, to pay to the Trustee any amount due to it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07 hereof.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan or reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceedings.
Section 6.10. Priorities.
----------
If the Trustee collects any money pursuant to this Article 6,
it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Noteholders for amounts due and unpaid on the Notes
for principal, premium, if any, and interest as
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to each, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes upon
presentation of the Notes and the notation thereon of the payment if
only partially paid and upon surrender thereon if fully paid;
THIRD: the balance, if any, to the Person or Persons entitled
thereto; and
FOURTH: to the Company.
The Trustee may fix a record date and payment date for any
payment to Noteholders pursuant to this Section 6.10.
Section 6.11. Undertaking for Costs.
---------------------
All parties to this Indenture agree and each Holder of any
Note by his acceptance thereof shall be deemed to have agreed that 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, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 hereof or
a suit by a Holder or Holders of more than 10% in aggregate principal amount of
the Notes then outstanding.
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee.
-----------------
(a) If an Event of Default known to the Trustee has occurred
and is continuing, the Trustee shall, other than with respect to any action
taken by the Trustee as directed by a majority in aggregate principal amount of
the Holders of outstanding Notes, exercise such rights and powers vested in it
by this Indenture and use the same degree of care and skill in their exercise as
a prudent Person would exercise or use under the circumstances in the conduct of
such Person's own affairs.
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(b) Except during the continuance of an Event of Default
known to the Trustee:
(1) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture or against the Trustee.
(2) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture but, in the case of any such certificates or opinions
which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same
to determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liability for its
own negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(1) This paragraph does not limit the effect of paragraph (b)
of this Section 7.01.
(2) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(3) The Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a direction
received by it pursuant to Sections 6.02, 6.04 and 6.05 hereof.
(4) 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 rights or powers if it
determines in the exercise of its reasonable discretion that repayment
of such funds or adequate indemnity satisfactory to it against such
risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided, paragraphs
(a), (b) and (c) of this Section 7.01 shall govern
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every provision of this Indenture that in any way relates to the Trustee.
(e) The Trustee is not under any obligation to exercise any
of its rights or powers under this Indenture at the request or direction of any
of the Holders unless such Holders shall have offered to the Trustee indemnity
or security satisfactory to it in its reasonable discretion against any loss,
liability, expense or fee.
(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 the law.
Section 7.02. Rights of Trustee.
-----------------
Subject to Section 7.01 hereof:
(1) In the absence of bad faith on its part, the Trustee may
conclusively rely on any document reasonably believed by it to be
genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(2) Before the Trustee acts or refrains from acting with
respect to any matters contemplated by this Indenture or the Notes it
may require an Officers' Certificate or an Opinion of Counsel, or both,
which shall conform to the provisions of Section 10.05 hereof. The
Trustee shall be protected and shall not be liable for any action it
takes or omits to take in good faith in reliance on such certificate or
opinion.
(3) 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 under this Indenture.
(4) The Trustee may consult with counsel of its selection, and
the advice or opinion of such counsel as to matters of law shall be
full and complete authorization and protection from liability in
respect of any action taken, omitted or suffered by it hereunder in
good faith and in accordance with the advice or opinion of such
counsel.
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(5) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request and any resolution
of the Board of Directors may be sufficiently evidenced by a Board
Resolution;
(6) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney at the sole cost of the Company and shall incur no liability
or additional liability of any kind by reason of such inquiry or
investigation;
(7) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(8) The Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee
has actual knowledge thereof or unless written notice of any event
which is in fact such a default is received by the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the
Notes and this Indenture;
(9) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
rights to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder; and
(10) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any
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person specified as so authorized in any such certificate previously
delivered and not superseded.
Section 7.03. Individual Rights of Trustee.
----------------------------
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may make loans to, accept deposits from,
perform services for or otherwise deal with the Company, or any Affiliates
thereof, with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee, however, shall be subject to
Sections 7.10 and 7.11 hereof.
Section 7.04. Trustee's Disclaimer.
--------------------
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Indenture or the Notes, it
shall not be accountable for the Company's use of the proceeds from the sale of
Notes or any money paid to the Company pursuant to the terms of this Indenture
and it shall not be responsible for any statement in the Notes other than its
certificate of authentication.
Section 7.05. Notice of Defaults.
------------------
If a Default occurs and is continuing and if it is known to
the Trustee, the Trustee shall mail to each Noteholder notice of the Default
within 30 calendar days after it occurs. Except in the case of a Default in
payment of the principal of, or premium, if any, or interest on any Note the
Trustee may withhold the notice if and so long as the board of directors of the
Trustee, the executive committee or any trust committee of such board and/or its
Responsible Officers in good faith determine(s) that withholding the notice is
in the interests of the Noteholders.
Section 7.06. Reports by Trustee to Holders.
-----------------------------
If required by TIA Section 313(a), within 60 calendar days
after May 15 of any year, commencing on May 15 following the date of this
Indenture, the Trustee shall mail to each Noteholder a brief report dated as of
such May 15 that complies with TIA Section 313(a). The Trustee also shall comply
with the reporting requirements of TIA Section 313(b)(2). The Trustee shall
transmit all such reports by mail as required by TIA Section 313(c):
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(1) to all registered Holders of Notes, as the names and addresses
of such Holders appear on the Registrar's books; and
(2) to such Holder of Notes as have, within the two years
preceding such transmission, filed their names and addresses with the
Trustee for that purpose.
A copy of each such report at the time of such mailing to Noteholders
shall be filed with the Commission and each stock exchange on which the Notes
are listed as provided by TIA Section 313(d). The Company shall promptly notify
the Trustee when the Notes are listed on any stock exchange.
Section 7.07. Compensation and Indemnity.
--------------------------
The Company shall pay to the Trustee from time to time such
compensation as shall be agreed in writing between the Company and the Trustee
for its services hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust). The Company shall reimburse the Trustee upon request for all reasonable
disbursements, expenses and advances incurred or made by it in connection with
its duties under this Indenture, including the reasonable compensation,
disbursements and expenses of the Trustee's agents and counsel and except for
any such disbursement or expense as may be attributable to negligence or bad
faith.
The Company shall indemnify each of the Trustee and its officers,
directors, employees and agents and any predecessor Trustee and its officers,
directors, employees and agents for, and hold it harmless against, any and all
loss, damage, claim, liability or reasonable expense, including taxes (other
than taxes based on the income of the Trustee) incurred by it in connection with
the acceptance or performance of its duties under this Indenture including the
reasonable costs and expenses of defending itself against any claim (whether
asserted by any Holder or any Person other than the Company) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder (including, without limitation, settlement costs). The Trustee shall
notify the Company in writing promptly of any claim asserted against the Trustee
for which it may seek indemnity. However, the failure by the Trustee to so
notify the Company shall not relieve the Company of its obligations hereunder
except to the extent the Company is prejudiced thereby.
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Notwithstanding the foregoing, the Company need not reimburse the
Trustee for any expense or indemnify it against any loss, damage, claim or
liability incurred by the Trustee through its negligence or bad faith. To
secure the payment obligations of the Company in this Section 7.07, the Trustee
shall have a lien prior to the Notes on all money or property held or collected
by the Trustee except such money or property held in trust to pay principal of
and interest on particular Notes.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.01(g) or (h) hereof occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section 7.07 shall survive the termination of
this Indenture.
For purposes of this Section 7.07, the term "Trustee" shall include
any trustee appointed pursuant to Article 9.
Section 7.08. Replacement of Trustee.
----------------------
The Trustee may resign by so notifying the Company in writing. The
Holders of a majority in principal amount of the outstanding Notes may remove
the Trustee by notifying the removed Trustee in writing and may appoint a
successor Trustee with the Company's written consent which consent shall not be
unreasonably withheld. The Company may remove the Trustee at its election if:
(1) the Trustee fails to comply with Section 7.10 hereof;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge or control of
the Trustee or its property or affairs; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
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No resignation or removal of the Trustee shall become effective until
the acceptance of appointment by the successor Trustee. If a successor Trustee
does not take office within 60 calendar days after the retiring Trustee resigns
or is removed, the retiring Trustee (at the expense of the Company), the Company
or the Holders of a majority in principal amount of the outstanding Notes may
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10 hereof, any
Noteholder who has been a bona fide holder for at least 6 months may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee if the Trustee fails after written request
thereof by such Noteholder to comply with Section 7.10.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately following
such delivery, the resignation or removal of the retiring Trustee shall become
effective and the retiring Trustee shall, subject to its rights under Section
7.07 hereof, transfer all property held by it as Trustee to the successor
Trustee, 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 Noteholder. In addition to the foregoing, all
notices will, if and so long as the Notes are listed on the Luxembourg Stock
Exchange, be provided in accordance with the terms of Section 3.03(b) hereof.
Notwithstanding replacement of the Trustee pursuant to this Section 7.08, the
Company's obligations under Section 7.07 hereof shall continue for the benefit
of the retiring Trustee.
Section 7.09. Successor Trustee by Consolidation, Merger or Conversion.
--------------------------------------------------------
If the Trustee consolidates with, merges, consolidates or converts
into, or transfers all or substantially all of its corporate trust assets to,
another corporation, subject to Section 7.10 hereof, the successor corporation
without any further act shall be the successor Trustee.
Section 7.10. Eligibility; Disqualification.
-----------------------------
This Indenture shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1) and (2) in every respect. The Trustee
shall have a combined capital and surplus
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of at least (euro)50,000,000 as set forth in its most recent published annual
report of condition. The Trustee shall comply with TIA Section 310(b), including
the provision in Section 310(b)(1). The provisions of TIA Section 310(a)(5)
shall apply to any Person directly or indirectly controlling, controlled by or
under common control with the Company as obligor of the Notes. The provisions of
TIA Section 310 shall apply to the Company as obligor of the Notes.
Section 7.11. Preferential Collection of Claims Against Company.
-------------------------------------------------
The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein. The provisions of TIA Section 311 shall apply to the Company as
obligor of the Notes.
Section 7.12. Paying Agents.
-------------
The Company shall cause each Paying Agent other than the Trustee to
execute and deliver to it and the Trustee an instrument in which such agent
shall agree with the Trustee, subject to the provisions of this Section 7.12:
(A) that it will hold all sums held by it as agent for the
payment of principal of, or premium, if any, or interest on, the Notes
(whether such sums have been paid to it by the Company or by any obligor on
the Notes) in trust for the benefit of Holders of the Notes or the Trustee;
(B) that it will at any time during the continuance of any Event
of Default, upon written request from the Trustee, deliver to the Trustee
all sums so held in trust by it together with a full accounting thereof;
and
(C) that it will give the Trustee written notice within three (3)
Business Days of any failure of the Company (or by any obligor on the
Notes) in the payment of any installment of the principal of, premium, if
any, or interest on, the Notes when the same shall be due and payable.
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Section 7.13. Appointment of Co-Trustee
-------------------------
It is the purpose of this Indenture that there shall be no violation
of any law of any jurisdiction (including particularly the law of the Hellenic
Republic of Greece) denying or restricting the right of banking corporations or
associations to transact business as trustee in such jurisdiction. It is
recognized that in case of litigation under this Indenture or the Agreement, and
in particular in case of the enforcement thereof on default, or in the case the
Trustee deems that by reason of any present or future law of any jurisdiction it
may not excercise any of the powers, rights or remedies herein granted to the
Trustee or hold title to the properties, in trust, as herein granted or take any
action which may be desirable or necessary in connection therewith, it may be
necessary that the Trustee appoint an individual or institution as a separate or
co-trustee. The following provisions of this Section are adopted to these ends.
In the event that the Trustee appoints an additional individual or
institution as a separate or co-trustee, each and every remedy, power, right,
claim, demand, cause of action, immunity, estate, title, interest and lien
expressed or intended by this Indenture to be exercised by or vested in or
conveyed to the Trustee with respect thereto shall be exercisable by and vest in
such separate or co-trustee but only to the extent necessary to enable such
separate or co-trustee to exercise such powers, rights and remedies, and only to
the extent that the Trustee by the laws of any jurisdiction (including
particularly the Hellenic Republic of Greece) is incapable of exercising such
powers, rights and remedies and every covenant and obligation necessary to the
exercise thereof by such separate or co-trustee shall run to and be enforceable
by either of them.
Should any instrument in writing from the Company be required by the
separate or co-trustee so appointed by the Trustee for more fully and certainly
vesting in and confirming to him or it such properties, rights, powers, trusts,
duties and obligations, any and all such instruments in writing shall, on
request, be executed, acknowledged and delivered by the Company at the expense
of the Company; provided, that if an Event of Default shall have occurred and be
continuing, if the Company does not execute any such instrument within fifteen
(15) days after request therefor, the Trustee shall be empowered as an attorney-
in-fact for the Company to execute any such instrument in the Company's name and
stead. In case any separate or co-trustee or a successor to either shall die,
become incapable of acting, resign or be removed, all the estates, properties,
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rights, powers, trusts, duties and obligations of such separate or co-trustee,
so far as permitted by law, shall vest in and be exercised by the Trustee until
the appointment of a new trustee or successor to such separate or co-trustee.
ARTICLE 8
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 8.01. Without Consent of Holders.
--------------------------
The Company, when authorized by a Board Resolution, and the Trustee
may amend, waive or supplement this Indenture or the Notes without notice to or
consent of any Noteholder:
(1) to comply with Section 5.01 hereof;
(2) to provide for uncertificated Notes in addition to or in
place of certificated Notes;
(3) to comply with any requirements of the Commission under the
TIA and maintain the qualification of this Indenture under the TIA;
(4) to cure any ambiguity, defect or inconsistency, or to make
any other change that does not adversely affect the rights of any
Noteholder; or
(5) to add to the covenants of the Company for the benefit of
the Holders or to surrender any right or power herein upon the Company.
The Trustee is hereby authorized to join with the Company in the
execution of any 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 any such supplemental indenture which adversely affects its own rights,
duties or immunities under this Indenture.
Section 8.02. With Consent of Holders.
-----------------------
The Company and the Trustee may modify or supplement this Indenture or
the Notes with the written consent of the Holders of not less than a majority
in aggregate principal
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amount of the outstanding Notes without notice to any Noteholder. The Holders of
not less than a majority in aggregate principal amount of the outstanding Notes
may waive compliance in a particular instance by the Company with any provision
of this Indenture or the Notes without notice to any Noteholder. Subject to
Section 8.04, without the consent of each Noteholder affected, however, an
amendment, supplement or waiver, including a waiver pursuant to Section 6.04,
may not:
(i) reduce the percentage in principal amount of outstanding Notes
whose Holders must consent to an amendment, supplement or waiver, or
consent to take any action under this Indenture or the Notes;
(ii) reduce the rate of or change the time for payment of interest
(including Liquidated Damages (as defined in the Registration Rights
Agreement)) on any Note;
(iii) reduce the principal of, or premium on, or change the stated
maturity, of any Note;
(iv) change the currency in which the principal of any Note or the
accrued interest or premium (if any) thereon is payable;
(v) change the amount or time of any payment required by the Notes
or reduce the premium payable upon any redemption of the Notes in
accordance with Section 3.07 hereof, or change the time at which a Note may
be redeemed;
(vi) waive a Default in the payment of the principal of, or
interest or premium on, or any redemption payment with respect to, any
Note;
(vii) make any changes in Sections 6.04 or 6.07 hereof or this
sentence of Section 8.02;
(viii) affect the ranking of the Notes in a manner adverse to the
Holders;
(ix) alter the provisions in any manner adverse to the Holders
relating to the payment of Additional Amounts on the Notes or alter the
redemption provisions of the Notes;
(x) reduce the amount payable upon a Change of Control or, at any
time after a Change of Control or Asset
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Sale, respectively, has occurred, amend, change or modify, in any material
respect, the obligation of the Company to make and consummate a Change of
Control Offer in the event of a Change of Control or make and consummate an
Asset Sale Offer in the event of an Asset Sale or modify, in any material
respect, any of the provisions or definitions with respect thereto; or
(xi) impair the right set forth in this Indenture to institute suit
for the enforcement of any payment on or with respect to the Notes (other
than any such payment that has become due solely as a result of the
acceleration of the maturity of the Notes).
After an amendment, supplement or waiver under this Section 8.02
becomes effective, the Company shall mail to the Holders a notice briefly
describing the amendment, supplement or waiver.
Upon the request of the Company, accompanied by a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
receipt by the Trustee of evidence reasonably satisfactory to the Trustee of the
consent of the Noteholders as aforesaid and upon receipt by the Trustee of the
documents described in Section 8.06 hereof, the Trustee shall join with the
Company in the execution of such supplemental indenture unless such supplemental
indenture affects the Trustee's own rights, duties or immunities under this
Indenture, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
Section 8.03. Compliance with Trust Indenture Act.
-----------------------------------
Every amendment to or supplement of this Indenture or the Notes shall
comply with the TIA as then in effect.
Section 8.04. Revocation and Effect of Consents.
---------------------------------
Until an amendment, supplement, waiver or other action becomes
effective, a consent to it by a Holder of a Note is a continuing consent
conclusive and binding upon such Holder and every subsequent Holder of the same
Note or portion
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thereof, and of any Note issued upon the transfer thereof or in exchange
therefor or in place thereof, even if notation of the consent is not made on any
such Note. Any such Holder or subsequent Holder, however, may revoke the consent
as to his Note or portion of a Note, if the Trustee receives the notice of
revocation before the date the amendment, supplement, waiver or other action
becomes effective.
The Company may, but shall not be obligated to, fix a record date for
the purpose of determining the Holders entitled to consent to any amendment,
supplement, or waiver. If a record date is fixed, then, such record date shall
be not less than 20 calendar days prior to the first solicitation of such
consent, and notwithstanding the preceding paragraph, those Persons who were
Holders at such record date (or their duly designated proxies), and only such
Persons, shall be entitled to consent to such amendment, supplement, or waiver
or to revoke any consent previously given, whether or not such Persons continue
to be Holders after such record date. No such consent shall be valid or
effective for more than 120 calendar days after such record date unless the
consent of the requisite number of Holders has been obtained.
After an amendment, supplement, waiver or other action becomes
effective, it shall bind every Noteholder, unless it makes a change described in
any of clauses (i) through (xi) of Section 8.02 hereof. In that case the
amendment, supplement, waiver or other action shall bind each Holder of a Note
who has consented to it and every subsequent Holder of a Note or portion of a
Note that evidences the same debt as the consenting Holder's Note.
Section 8.05. Notation on or Exchange of Notes.
--------------------------------
If an amendment, supplement, or waiver changes the terms of a Note,
the Trustee may request the Holder of the Note to deliver it to the Trustee. In
such case, the Trustee shall place an appropriate notation on the Note about the
changed terms and return it to the Holder. Alternatively, if the Company or the
Trustee so determines, the Company in exchange for the Note shall execute and
issue and the Trustee shall authenticate a new Note that reflects the changed
terms. Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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Section 8.06. Trustee to Sign Amendments, etc.
-------------------------------
The Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article 8 if the amendment, supplement or waiver does not
adversely affect the rights, duties, liabilities or immunities of the Trustee.
If it does, the Trustee may, but need not, sign it. In signing or refusing to
sign such amendment, supplement or waiver the Trustee shall be entitled to
receive and, subject to Section 7.01 hereof, shall be fully protected in relying
upon an Officers' Certificate and an Opinion of Counsel stating that such
amendment, supplement or waiver is authorized or permitted by this Indenture.
The Company may not sign an amendment or supplement until the Board of Directors
of the Company approves it.
ARTICLE 9
DISCHARGE OF INDENTURE; DEFEASANCE
Section 9.01. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall be discharged and will cease to be of further
effect (except as to surviving rights of registration of transfer or exchange of
Notes herein expressly provided for and obligations to pay Additional Amounts
hereunder) and the Trustee, on written demand of and at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when either:
(a) all Notes theretofore authenticated and delivered (other than
(A) Notes which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.07 hereof and (B) Notes for whose
payment money has theretofore been deposited in trust or segregated and
held in trust by the Company and thereafter repaid to the Company or
discharged from such trust) have been delivered to the Trustee for
cancellation; or
(b) (i) all such Notes not theretofore delivered to the Trustee for
cancellation have become due and payable and the Company has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust solely for that purpose an amount of Euro or Euro Government
Obligations sufficient to pay and discharge the entire Indebtedness on such
Notes not theretofore delivered to the Trustee for cancellation, for the
principal of, premium,
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if any, and interest to the date of such deposit; (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 (A) irrevocable instructions
to apply the deposited money toward payment of the Notes at the maturity
thereof, and (B) an Officers' Certificate and an Opinion of Counsel each
stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.07 and, if money shall
have been deposited with the Trustee pursuant to subclause (a)(B) of this
Section 9.01, the obligations of the Trustee under Section 9.05, shall survive.
Section 9.02. Legal Defeasance.
----------------
The Company may at its option, by Board Resolution, be discharged from
its obligations with respect to the Notes (hereinafter, "Legal Defeasance").
For this purpose, such Legal Defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by the Notes and
to have satisfied all its other obligations under such Notes and this Indenture
insofar as such Notes are concerned (and the Trustee, at the expense of the
Company, shall, subject to Section 9.06 hereof, execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
outstanding Notes to receive solely from the trust funds described in Section
9.04 hereof and as more fully set forth in such Section, payments in respect of
the principal of, premium, if any, and interest on such Notes when such payments
are due, (B) the Company's obligations with respect to such Notes under Article
2 and Sections 4.16 and 4.17 hereof, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder (including claims of, or payments to, the
Trustee under or pursuant to Section 7.07 hereof) and (D) this Article 9.
Subject to compliance with this Article 9, the Company may exercise its option
under this Section 9.02 with respect to the Notes notwithstanding the prior
exercise of its option under Section 9.03 below with respect to the Notes.
Section 9.03. Covenant Defeasance.
-------------------
At the option of the Company, pursuant to a Board Resolution, the
Company and its subsidiaries, if any, shall be
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released from their respective obligations under Sections 4.02 through 4.12,
4.15, 4.18 and 4.19 hereof, and clause (d) of Section 5.01 hereof with respect
to the outstanding Notes on and after the date the conditions set forth in
Section 9.04 hereof are satisfied (hereinafter, "Covenant Defeasance"). For this
purpose, such Covenant Defeasance means that 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 specified Section or portion thereof, whether directly or
indirectly by reason of any reference elsewhere herein to any such specified
Section or portion thereof or by reason of any reference in any such specified
Section or portion thereof to any other provision herein or in any other
document, but the remainder of this Indenture and the Notes shall be unaffected
thereby.
Section 9.04. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 9.02
or Section 9.03 hereof to the outstanding Notes:
(1) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 7.10 hereof who shall agree to comply with the provisions of
this Article 9 applicable to it) as funds in trust for the purpose of
making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of the Notes, (A) Euro in
an amount, or (B) Euro Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with
their terms will provide, not later than the due date of any payment, money
in an amount, or (C) a combination thereof, sufficient, in the opinion of a
nationally-recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of, premium, if any, and
accrued interest on the outstanding Notes at the maturity date of such
principal, premium, if any, or interest, or on dates for payment and
redemption of such principal, premium, if any, and interest selected in
accordance with the terms of this Indenture and of the Notes; provided,
however, that the Trustee (or other qualifying trustee) shall have received
an irrevocable written order from the
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Company instructing the Trustee (or other qualifying trustee) to apply such
money or the proceeds of such Euro Government Obligations to said payments
with respect to the Notes;
(2) no Event of Default or Default specified in Section 6.01(g)
or (h) shall have occurred and be continuing on the date of such deposit,
or shall have occurred and be continuing at any time during the period
ending on the 91st day after the date of such deposit or, if longer, ending
on the day following the expiration of the longest preference period under
any Bankruptcy Law applicable to the Company in respect of such deposit (it
being understood that this condition shall not be deemed satisfied until
the expiration of such period);
(3) such Legal Defeasance or Covenant Defeasance shall not cause
the Trustee to have a conflicting interest for purposes of the TIA with
respect to any securities of the Company;
(4) such Legal Defeasance or Covenant Defeasance shall not
result in a breach or violation of, or constitute default under any other
agreement or instrument to which the Company is a party or by which it is
bound;
(5) the Company shall have delivered to the Trustee an Opinion
of Counsel stating that, as a result of such Legal Defeasance or Covenant
Defeasance, neither the trust nor the Trustee will be required to register
as an investment company under the Investment Company Act of 1940, as
amended;
(6) in the case of an election under Section 9.02 above, the
Company shall have delivered to the Trustee an Opinion of Counsel stating
that (i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling to the effect that or (ii) there has been
a change in any applicable Federal income tax law with the effect that, and
such opinion shall confirm that, the Holders of the outstanding Notes or
persons in their positions will not recognize income, gain or loss for
Federal income tax purposes solely as a result of such Legal Defeasance and
will be subject to Federal income tax on the same amounts, in the same
manner, including as a result of prepayment, and at the same times as would
have been the case if such Legal Defeasance had not occurred;
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(7) in the case of an election under Section 9.03 hereof, the
Company shall have delivered to the Trustee an Opinion of Counsel to the
effect that the Holders of the outstanding Notes will not recognize income,
gain or loss for Federal income tax purposes as a result of such Covenant
Defeasance and will be subject to Federal 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;
(8) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the Legal Defeasance under
Section 9.02 above or the Covenant Defeasance under Section 9.03 hereof (as
the case may be) have been complied with;
(9) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit under clause (1) was not made by the
Company with the intent of defeating, hindering, delaying or defrauding any
creditors of the Company or others; and
(10) before or after a deposit, the Company may make
arrangements satisfactory to the Trustee for the redemption of Notes at a
future date in accordance with Section 3.07(a) hereof.
Section 9.05. Deposited Money and Euro Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
-------------------------------------------------------------
All money and Euro Government Obligations (including the proceeds
thereof) deposited with the Trustee pursuant to Section 9.01 or 9.04 hereof in
respect of the outstanding Notes shall be held in trust and applied by the
Trustee, 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 such Notes, of all sums due and to become due
thereon in respect of principal, premium, if any, and accrued interest, 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 Euro Government Obligations
deposited pursuant to Section 9.01 or 9.04 hereof or the principal, premium, if
any,
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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 the outstanding Notes.
Anything in this Article 9 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Euro Government Obligations held by it as provided in
Section 9.01 or 9.04 hereof which, in the opinion of a nationally-recognized
firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which
would then be required to be deposited to effect an equivalent Legal Defeasance
or Covenant Defeasance.
Section 9.06. Reinstatement.
-------------
If the Trustee or Paying Agent is unable to apply any money or Euro
Government Obligations in accordance with Section 9.01, 9.02 or 9.03 hereof 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
this Article 9 until such time as the Trustee or Paying Agent is permitted to
apply all such money or Euro Government Obligations in accordance with Section
9.01 hereof; provided, however, that if the Company has made any payment of
principal of, premium, if any, or accrued interest on any Notes because of the
reinstatement of their obligations, the Company shall be subrogated to the
rights of the Holders of such Notes to receive such payment from the money or
Euro Government Obligations held by the Trustee or Paying Agent.
Section 9.07. Moneys Held by Paying Agent.
---------------------------
In connection with the satisfaction and discharge of this Indenture,
all moneys then held by any Paying Agent under the provisions of this Indenture
shall, upon demand of the Company, be paid to the Trustee, or if sufficient
moneys have been deposited pursuant to Section 9.01 hereof, to the Company and
thereupon such Paying Agent shall be released from all further liability with
respect to such moneys.
Section 9.08. Moneys Held by Trustee.
----------------------
Any moneys deposited with the Trustee or any Paying Agent or then held
by the Company in trust for the payment of
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the principal of, or premium, if any, or interest on any Note that are not
applied but remain unclaimed by the Holder of such Note for two years after the
date upon which the principal of, or premium, if any, or interest on such Note
shall have respectively become due and payable shall be repaid to the Company
upon Company Request, or if such moneys are then held by the Company in trust,
such moneys shall be released from such trust; and the Holder of such Note
entitled to receive such payment shall thereafter, as an unsecured general
creditor, look only to the Company for the payment thereof, and all liability of
the Trustee or such Paying Agent with respect to such trust money shall
thereupon cease.
ARTICLE 10
MISCELLANEOUS
Section 10.01. Trust Indenture Act Controls.
----------------------------
If any provision of this Indenture limits, qualifies or conflicts with
another provision which is required to be included in this Indenture by the TIA,
the required provision shall control.
Section 10.02. Notices.
-------
Any notice or communication shall be given in writing and delivered in
person against written receipt, sent by facsimile, delivered by commercial
courier service or mailed by first-class mail, postage prepaid, or by a
recognized overnight courier, addressed as follows:
If to the Company:
Antenna TV S.A.
00-00, Xxxxxxxxx Xxxxxx
000 00 Xxxxxxxx
Xxxxxx, Xxxxxx
Attention: Chief Financial Officer
Fax: 30 -1 000-0000
Copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx
& Xxxxxxxx
1285 Avenue of the Xxxxxxxx
-00-
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
If to the Trustee:
The Bank of New York
00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxx X00 0XX
Attention: Corporate Trust Administration
Fax: 00-00-0000-0000
Such notices or communications shall be deemed effective when
delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; one Business Day after timely
delivered to a next-day air courier guaranteeing overnight delivery and when
receipt is acknowledged by the addressee's telecopier machine, if telecopied;
and shall be sufficiently given if so given within the time prescribed in this
Indenture.
The Company or the Trustee by written notice to the others may
designate additional or different addresses for subsequent notices or
communications.
In addition to the foregoing, all notices will, if and so long as the
Notes are listed on the Luxembourg Stock Exchange will be provided in accordance
with the terms of Section 3.03(b) hereof.
Any notice or communication mailed to a Noteholder shall be mailed to
him by first-class mail, postage prepaid, at his address shown on the register
kept by the Registrar and shall be deemed effective five Business Days after
being deposited in the mail.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication to a Noteholder is mailed in the manner provided
herein, it shall be deemed duly given, whether or not the addressee receives it.
In case by reason of the suspension of regular mail service, or by
reason of any other cause, it shall be impossible to mail any notice as required
by this Indenture, then such method of notification as shall be made with the
approval of
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the Trustee shall constitute a sufficient mailing of such notice.
Section 10.03. Communications by Holders with Other Holders.
--------------------------------------------
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
Every Noteholder, by receiving and holding such Notes acknowledges that the
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c) and may not be held accountable by reason of the disclosure
of information as to the names and addresses of the Noteholders pursuant to TIA
Section 312(b).
Section 10.04. Certificate and Opinion as to Conditions Precedent.
--------------------------------------------------
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate (which shall include the statements
set forth in Section 10.05 below) stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel (which shall include the statements
set forth in Section 10.05 below) stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.05. Statements Required in Certificate and Opinion.
----------------------------------------------
Each certificate and 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;
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(3) a statement that, in the opinion of such Person, it or he
has made such examination or investigation as is necessary to enable it or
him 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 such
Person, such covenant or condition has been complied with.
Section 10.06. When Treasury Notes Disregarded.
-------------------------------
In determining whether the Holders of the required aggregate principal
amount of Notes have concurred in any direction, waiver or consent, Notes owned
by the Company, or any other obligor on the Notes or by any Affiliate of any of
them 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 which a Responsible Officer of the Trustee actually knows
are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith shall not be disregarded if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to the
Notes and that the pledgee is not the Company, or any other obligor upon the
Notes or any Affiliate of any of them.
Section 10.07. Rules by Trustee and Agents.
---------------------------
The Trustee may make reasonable rules for action by or meetings of
Noteholders. The Registrar and Paying Agent may make reasonable rules for their
functions.
Section 10.08. Business Days; Legal Holidays.
-----------------------------
A "Business Day" is a day that is not a Legal Holiday. A "Legal
Holiday" is a Saturday, a Sunday or a day on which banking institutions are not
required to be open in The City of New York or London. 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.
Section 10.09. Governing Law.
-------------
THIS INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF
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NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES
HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW
YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR
THE NOTES.
Section 10.10. Agent for Service; Submission to Jurisdiction; Waiver of
--------------------------------------------------------
Immunities.
----------
By the execution and delivery of this Indenture, the Company (i)
acknowledges that it has, by separate written instrument, designated and
appointed CT Corporation System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(the "Authorized Agent") (and any successor entity), as its authorized agent
upon which process may be served in any suit or proceeding arising out of or
relating to this Indenture and the Notes, or brought under federal or state
securities laws, that may be instituted in any federal or state court in The
City of New York, Borough of Manhattan, State of New York and acknowledges that
the Authorized Agent has accepted such designation, (ii) submits to the
jurisdiction of any such court in any such suit or proceeding and (iii) agrees
that service of process upon the Authorized Agent and written notice of said
service to the Company in accordance with Section 10.02 of this Indenture shall
be deemed in every respect effective service of process upon the Company in any
such suit or proceeding. The Company further agrees to take any and all action,
including the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and appointment of
the Authorized Agent in full force and effect without lapse for so long as any
of the Notes shall be outstanding; provided that the Company may (and, to the
extent the Authorized Agent ceases to be able to be served on the basis
contemplated herein, shall), by written notice to the Trustee in accordance with
Section 10.02 of this Indenture, designate such additional or alternative agent
for service of process under this Section 10.10 that (i) maintains an office
located in The City of New York, Borough of Manhattan, State of New York and
(ii) is a corporate service company which acts as agent for service of process
for other persons in the ordinary course of its business. Such written notice
shall identify the name of such agent for service of process and the address of
the office of such agent for service of process in The City of New York, Borough
of Manhattan, State of New York.
To the extent that the Company has or hereafter may acquire any
immunity from jurisdiction of any court or from any
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legal process (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to itself
or its property, it hereby irrevocably waives such immunity in respect of its
obligations under each of this Indenture and the Notes. In addition, the Company
irrevocably waives and agrees not to assert, by way of motion, as a defense, or
otherwise in any such suit, action or proceeding, any claim that it is not
personally subject to the jurisdiction of the above-mentioned courts for any
reason whatsoever, that such suit, action or proceeding is brought in an
inconvenient forum or that the venue for such suit is improper, or that this
Indenture or the subject matter hereof may not be enforced in such courts.
The Company and the Trustee agree that a final judgment in any such
suit, action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Section 10.10 shall affect the right of the Trustee to serve
legal process in any other manner permitted by law or affect the right of the
Trustee to bring any action or proceeding against the Company or their
respective property in the courts of any other jurisdictions.
Section 10.11. Currency of Account; Conversion of Currency; Foreign Exchange
-------------------------------------------------------------
Restrictions.
------------
(a) Euro are the sole currency of account and payment for all sums
payable by the Company under or in connection with the Notes or this Indenture,
including damages. Any amount received or recovered in a currency other than
Euro (whether as a result of, or of 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 the Notes 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 Euro 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 Euro
amount is less than the Euro amount expressed to be due to the recipient under
the Notes, the Company shall indemnify it against any loss sustained by it as a
result as set forth in Section 10.11(b). In any event, the Company shall
indemnify the recipient against the cost of making any such purchase. For the
purposes of this Section 10.11, it will be sufficient for the Holder of a Note
to certify in a satisfactory manner
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(indicating sources of information used) that it would have suffered a loss had
an actual purchase of Euro been made with the amount so received in that other
currency on the date of receipt or recovery (or, if a purchase of Euro 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). The indemnities set forth in this Section 10.11
constitute separate and independent obligations from other obligations of the
Company, shall give rise to a separate and independent cause of action, shall
apply irrespective of any indulgence granted by any Holder of the Notes 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 the Notes.
(b) The Company covenants and agrees that the following provisions
shall apply to conversion of currency in the case of the Notes and this
Indenture:
(i) (A) If for the purpose of obtaining judgment in, or enforcing
the judgment of, any court in any country, it becomes necessary to convert
into a currency (the "judgment currency") an amount due in any other
currency (the "Base Currency"), then the conversion shall be made at the
rate of exchange prevailing on the Business Day before the day on which the
judgment is given or the order of enforcement is made, as the case may be
(unless a court shall otherwise determine).
(B) If there is a change in the rate of exchange prevailing between
the Business Day before the day on which the judgment is given or an order
of enforcement is made, as the case may be (or such other date as a court
shall determine), and the date of receipt of the amount due, the Company
will pay such additional (or, as the case may be, such lesser) amount, if
any, as may be necessary so that the amount paid in the judgment currency
when converted at the rate of exchange prevailing on the date of receipt
will produce the amount in the Base Currency originally due.
(ii) In the event of the winding-up of the Company at any time
while any amount or damages owing under the Notes and this Indenture, or
any judgment or order rendered in respect thereof, shall remain
outstanding, the Company shall indemnify and hold the Holders and the
Trustee harmless against any deficiency arising or resulting from any
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variation in rates of exchange between (1) the date as of which the Euro
Equivalent of the amount due or contingently due under the Notes and this
Indenture (other than under this Subsection (b)(ii)) is calculated for the
purposes of such winding-up and (2) the final date for the filing of proofs
of claim in such winding-up. For the purpose of this Subsection (b)(ii),
the final date for the filing of proofs of claim in the winding-up of the
Company shall be the date fixed by the liquidator or otherwise in
accordance with the relevant provisions of applicable law as being the
latest practicable date as at which liabilities of the Company may be
ascertained for such winding-up prior to payment by the liquidator or
otherwise in respect thereto.
(iii) The obligations contained in Subsections (a), (b)(i)(B) and
(b)(ii) of this Section 10.11 shall constitute separate and independent
obligations from the other obligations of the Company under this Indenture,
shall give rise to separate and independent causes of action against the
Company, shall apply irrespective of any waiver or extension granted by any
Holder or the Trustee or either of them from time to time and shall
continue in full force and effect notwithstanding any judgment or order or
the filing of any proof of claim in the winding-up of the Company for a
liquidated sum in respect of amounts due hereunder (other than under
Subsection (b)(ii) above) or under any such judgment or order. Any such
deficiency as aforesaid shall be deemed to constitute a loss suffered by
the Holders or the Trustee, as the case may be, and no proof or evidence of
any actual loss shall be required by the Company or the liquidator or
otherwise or any of them. In the case of Subsection (b)(ii) above, the
amount of such deficiency shall not be deemed to be reduced by any
variation in rates of exchange occurring between the said final date and
the date of any liquidating distribution.
(iv) The term "rate(s) of exchange" shall mean the rate of exchange
quoted by Reuters at 10:00 a.m. (London time) for spot purchases of the
Base Currency with the judgment currency other than the Base Currency
referred to in Subsections (b)(i) and (b)(ii) above and includes any
premiums and costs of exchange payable.
-97-
Section 10.12. No Adverse Interpretation of Other Agreements.
---------------------------------------------
This Indenture may not be used to interpret another indenture, loan,
security or debt agreement of the Company or any Subsidiary thereof. No such
indenture, loan, security or debt agreement may be used to interpret this
Indenture.
Section 10.13. No Recourse Against Others.
--------------------------
A director, officer, employee, stockholder or incorporator, as such,
of the Company shall not have any liability for any obligations 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 creations. Each Noteholder by accepting a
Note waives and releases all such liability. Such waiver and release are part
of the consideration for the issuance of the Notes.
Section 10.14. Successors.
----------
All agreements of the Company in this Indenture and the Notes shall
bind its successors. All agreements of the Trustee, any additional trustee and
any Agent in this Indenture shall bind their respective successors.
Section 10.15. Multiple Counterparts.
---------------------
The parties may sign multiple counterparts of this Indenture. Each
signed counterpart shall be deemed an original, but all of them together
represent one and the same agreement.
Section 10.16. Table of Contents, Headings, etc.
--------------------------------
The table of contents, cross-reference sheet and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 10.17. Separability.
------------
Each provision of this Indenture shall be considered separable and if
for any reason any provision which is not essential to the effectuation of the
basic purpose of this Indenture or the Notes shall be invalid, illegal or
unenforceable,
-98-
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 10.18. Waiver of Jury Trial.
--------------------
Each of the Company and the Trustee hereby irrevocably waives, to the
fullest extent permitted by applicable law, any and all right to trial by jury
in any legal proceeding arising out of or relating to this Indenture, the Notes
or the transactions contemplated hereby.
-99-
IN WITNESS WHEREOF, the parties have caused this Indenture to be duly
executed all as of the date and year first written above.
ANTENNA TV S.A.
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Chief Executive
Officer and Director
By: /s/ Xxxxxxx Xxxxxxxxxxxx
------------------------
Name: Xxxxxxx Xxxxxxxxxxxx
Title: Chief Financial Officer
and Director
ATTEST:
By: /s/ Xxx Xxxxxxx
---------------
Name: Xxx Xxxxxxx
Title: Legal Counsel
THE BANK OF NEW YORK, as Trustee
By: /s/ Xxxx Xxxxxxx
----------------
Name: Xxxx Xxxxxxx
Title: Assistant Vice
President
EXHIBIT A
---------
(FACE OF NOTE)
[FORM OF NOTE]
--------------
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933 (THE "SECURITIES ACT") OR WITH ANY SECURITIES REGULATORY
AUTHORITY OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES AND MAY NOT BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) TO THE COMPANY, (2)
IN ACCORDANCE WITH RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER AND ANY PERSON ACTING ON ITS BEHALF REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A PURCHASING FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER, (3) IN AN
OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S
UNDER THE SECURITIES ACT OR (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR PURSUANT TO
ANY OTHER AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, IN
EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES AND SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (3) OR (4) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM. NO REPRESENTATION CAN BE MADE AS TO THE
AVAILABILITY OF THE EXEMPTION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT FOR
RESALE OF THIS NOTE.
A-1
CUSIP
ISIN
COMMON CODE
Number
ANTENNA TV S.A.
---------------
9 3/4% SENIOR NOTES DUE 2008
Antenna TV S.A., a Greek corporation (societe anonyme) (the "Company",
which term includes any successor corporation), for value received promises to
pay to ________________________ or registered assigns the principal sum of
___________________ Euro, on July 1, 2008.
Interest Payment Dates: January 1 and July 1, commencing January 1,
2002.
Record Dates: June 15 and December 15.
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-2
IN WITNESS WHEREOF, the Company has caused this Note to be signed
manually or by facsimile by its duly authorized officers.
ANTENNA TV S.A.
By: ___________________________
By: ___________________________
Certificate of Authentication:
This is one of the 9 3/4% Senior
Notes due 2008 referred to in
the within-mentioned Indenture
Dated:
THE BANK OF NEW YORK,
as Trustee
By: ______________________________
Authorized Signatory
A-3
(REVERSE SIDE)
ANTENNA TV S.A.
---------------
9 3/4% SENIOR NOTES DUE 2008
1. INTEREST.
Antenna TV S.A., a Greek corporation (societe anonyme) (the
"Company"), promises to pay interest on the principal amount of this Note
semiannually on January 1 and July 1 of each year (each an "Interest Payment
Date"), commencing on January 1, 2002, at the rate of 9 3/4% per annum. Where
interest is to be calculated with respect to a period of less than a full year,
it shall be calculated on the basis of the actual number of days elapsed divided
by the actual number of days in the period from and including the later of the
Issue Date (as defined) or the last date on which interest was paid to but
excluding the next Interest Payment Date. Interest will be computed on the
basis of a 360-day year of twelve 30-day months. 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 the date of the original issuance of the Notes.
The Company shall pay interest on overdue principal, and on overdue
premium, if any, and overdue interest, to the extent lawful, at the rate of
interest borne by the Notes.
2. METHOD OF PAYMENT.
The Company will pay interest on this Note provided for in Paragraph 1
above (except defaulted interest) to the person who is the registered Holder of
this Note at the close of business on the June 15 and December 15 preceding the
Interest Payment Date (whether or not such day is a Business Day). The Holder
must surrender this Note to a Paying Agent to collect principal payments. The
Company will pay principal, premium, if any, and interest in Euro; provided,
however, that the Company may pay principal, premium, if any, and interest by
check payable in such money. It may mail an interest check to the Holder's
registered address.
3. PAYING AGENT AND REGISTRAR.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as principal Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to the Holders of the Notes.
Neither the Company nor any of its Subsidiaries or Affiliates may act as Paying
Agent but may act as Registrar or co-registrar.
A-4
4. INDENTURE; RESTRICTIVE COVENANTS.
The Company issued this Note under an Indenture dated as of June 18,
2001 (the "Indenture") between the Company and the Trustee. The terms of this
Note 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) as in effect on the date of the Indenture. This Note is subject to all
such terms, and the Holder of this Note is referred to the Indenture and said
Trust Indenture Act for a statement of them. All capitalized terms in this
Note, unless otherwise defined, have the meanings assigned to them by the
Indenture.
The Notes are general unsecured senior obligations of the Company
limited to (euro)250,000,000 aggregate principal amount. The Initial Notes are
initially being issued in the aggregate principal amount of (euro)150,000,000.
The Company shall be entitled to issue Additional Notes pursuant to Section 2.14
of the Indenture. The Initial Notes and the Additional Notes are treated as a
single class of securities under the Indenture. The Indenture imposes certain
restrictions on, among other things, the incurrence of indebtedness, the
incurrence of liens, the making of certain investments, mergers and sale of
assets, the payments of dividends on or the repurchase of, capital stock of the
Company and its Subsidiaries, certain other restricted payments by the Company
and its Subsidiaries, certain transactions with, and investments in, its
Affiliates, certain sale-leaseback transactions and a provision regarding
change-of-control transactions.
5. REDEMPTION; ADDITIONAL AMOUNTS.
The Company may redeem the Notes, in whole or in part, on or after
July 1, 2005 at the redemption prices set forth in Section 3.07(a) of the
Indenture, together, in each case, with accrued and unpaid interest to the
Redemption Date.
In addition, at any time, or from time to time, on or prior to July 1,
2004, the Company may, at its option, use the net proceeds of one or more Public
Equity Offerings to redeem up to 35% of the Notes at a redemption price set
forth in Section 3.07(b); provided, however, that at least 65% of the principal
amount of Notes originally issued (including the original principal amount of
Additional Notes) remains outstanding immediately after any such redemption.
The Company may effect a Tax Redemption of the Notes, as a whole, but
not in part, at 100% of the principal amount thereof as provided in Section
3.07(c) of the Indenture.
A-5
The Company will pay to the Holders such Additional Amounts as may
become payable under Section 4.17 of the Indenture.
6. NOTICE OF REDEMPTION.
Notice of redemption will be mailed via first class mail at least 30
calendar days but not more than 60 calendar days prior to the Redemption Date to
each Holder of Notes to be redeemed at its registered address as it shall appear
on the register of the Notes maintained by the Registrar. On and after any
Redemption Date, interest will cease to accrue on the Notes or portions thereof
called for redemption unless the Company shall fail to redeem any such Note.
7. OFFERS TO PURCHASE.
The Indenture requires that certain proceeds from Asset Sales be used,
subject to further limitations contained therein, to make an offer to purchase
certain amounts of Notes in accordance with the procedures set forth in the
Indenture. The Company is also required to make an offer to purchase Notes upon
occurrence of a Change of Control in accordance with procedures set forth in the
Indenture.
8. REGISTRATION RIGHTS.
Pursuant to the Registration Rights Agreement among the Company and
Salomon Brothers International Limited, as initial purchaser of the Notes, the
Company will be obligated to consummate an exchange offer pursuant to which the
Holder of this Note shall have the right to exchange this Note for Notes of a
separate series issued under the Indenture (or a trust indenture substantially
identical to the Indenture in accordance with the terms of the Registration
Rights Agreement) which have been registered under the Securities Act, in like
principal amount and having substantially identical terms as the Notes. The
Holders shall be entitled to receive certain additional interest payments in the
event such exchange offer is not consummated and upon certain other conditions,
all pursuant to and in accordance with the terms of the Registration Rights
Agreement.
9. DENOMINATIONS, TRANSFER, EXCHANGE.
The Notes are in registered form without coupons in denominations of
(euro)1,000 and integral multiples thereof. A Holder may register the transfer
or exchange of Notes in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or permitted by the
Indenture. The Registrar need not reg-
A-6
ister the transfer of or exchange any Note selected for redemption or register
the transfer of or exchange any Note for a period of 15 calendar days before a
selection of Notes to be redeemed or any Note after it is called for redemption
in whole or in part, except the unredeemed portion of any Note being redeemed in
part.
10. PERSONS DEEMED OWNERS.
The registered Holder of this Note may be treated as the owner of it
for all purposes.
11. UNCLAIMED MONEY.
If money for the payment of principal, premium or interest on any Note
remains unclaimed for two years, the Trustee or Paying Agent will pay the money
back to the Company at its request. After that, Holders entitled to money must
look to the Company for payment as general creditors unless an "abandoned
property" law designates another person.
12. AMENDMENT, SUPPLEMENT AND WAIVER.
Subject to certain exceptions, the Indenture or the Notes may be
modified, amended or supplemented by the Company and the Trustee with the
consent of the Holders of at least a majority in principal amount of the Notes
then outstanding and any existing Default or compliance with any provision may
be waived in a particular instance with the consent of the Holders of a majority
in principal amount of the Notes then outstanding. Without the consent of
Holders, the Company, and the Trustee may amend the Indenture or the Notes or
supplement the Indenture for certain specified purposes including providing for
uncertificated Notes in addition to certificated Notes, and curing any
ambiguity, defect or inconsistency, or making any other change that does not
adversely affect the rights of any Holder.
13. SUCCESSOR ENTITY.
When a successor corporation assumes all the obligations of its
predecessor under the Notes and the Indenture and immediately before and
thereafter no Default exists and certain other conditions are satisfied, the
predecessor corporation will be released from those obligations.
14. DEFAULTS AND REMEDIES.
Events of Default are set forth in the Indenture. If an Event of
Default (other than an Event of Default pursuant to Section 6.01(g) or (h) of
the Indenture relating to the Com-
A-7
pany) occurs and is continuing, the Trustee by notice to the Company, or the
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding, may declare to be immediately due and payable the entire principal
amount of all the Notes then outstanding plus accrued but unpaid interest to the
date of acceleration; provided, however, that after such acceleration but before
judgment or decree based on such acceleration is obtained by the Trustee, the
Holders of a majority in aggregate principal amount of the outstanding Notes
may, under certain circumstances, rescind and annul such acceleration and its
consequences if all existing Events of Default, other than the nonpayment of
principal, premium or interest that has become due solely because of the
acceleration, have been cured or waived and if the rescission would not conflict
with any judgment or decree. No such rescission shall affect any subsequent
Default or impair any right consequent thereto. In case an Event of Default
specified in Section 6.01(g) or (h) of the Indenture relating to the Company
occurs, such principal amount, together with premium, if any, and interest with
respect to all of the Notes, shall be due and payable immediately without any
declaration or other act on the part of the Trustee or the Holders of the Notes.
15. TRUSTEE DEALINGS WITH THE COMPANY.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from, and perform services for the
Company, and may otherwise deal with the Company, as if it were not Trustee.
16. NO RECOURSE AGAINST OTHERS.
As more fully described in the Indenture, a director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company or under the Notes or the Indenture or for
any claim based on, in respect or by reason of, such obligations or their
creation. The Holder of this Note by accepting this Note waives and releases
all such liability. The waiver and release are part of the consideration for
the issuance of this Note.
17. DEFEASANCE AND COVENANT DEFEASANCE.
The Indenture contains provisions for defeasance of the entire
indebtedness on this Note and for defeasance of certain covenants in the
Indenture upon compliance by the Company with certain conditions set forth in
the Indenture.
A-8
18. ABBREVIATIONS.
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).
19. ISIN NUMBERS AND COMMON CODES.
The Company has caused ISIN number(s) or Common Code(s) to be printed
on the Notes and has directed the Trustee to use such ISIN number(s) or Common
Code(s) in notices of redemption as a convenience to Holders of the Notes. No
representation is made as to the accuracy of such numbers or codes either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
20. CONVERSION OF CURRENCY.
Euro are the sole currency of account and payment for all sums payable
by the Company under or in connection with the Notes or the Indenture, including
damages. The Company has agreed that the provisions of Section 10.11 of the
Indenture shall apply to conversion of currency in the case of the Notes and the
Indenture.
21. AGENT FOR SERVICE; SUBMISSION TO JURISDICTION; WAIVER OF IMMUNITIES.
The Company has appointed CT Corporation System, currently located at
000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, as its Authorized Agent upon which
process may be served in any suit, or proceeding with respect to, arising out
of, or relating to, this Note or the Indenture, that may be instituted in any
federal or state court in the State of New York, The City of New York, the
Borough of Manhattan, or brought under federal or state securities laws and has
agreed that there shall, at all times, be at least one Agent for service of
process for the Company appointed and acting in accordance with the provisions
of Section 10.10 of the Indenture relating to agent for service of process. To
the extent that the Company has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, the Company has
irrevocably waived such immunity in respect of its obligations under the
Indenture and this Note to the extent permitted by law.
A-9
22. GOVERNING LAW.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THE INDENTURE OR THE NOTES.
THE COMPANY WILL FURNISH TO ANY HOLDER OF A NOTE UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. REQUESTS MAY BE MADE TO: ANTENNA
TV S.A., 00-00, Xxxxxxxxx Xxxxxx, 000 00 Xxxxxxxx, Xxxxxx, Xxxxxx, Attention:
Chief Financial Officer.
A-10
ASSIGNMENT
----------
I or we assign and transfer this Note to:
(Insert assignee's social security or tax I.D. number)
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
_______________________________________________________________
(Print or type name, address and zip code of assignee)
and irrevocably appoint:
_______________________________________________________________
_______________________________________________________________
Agent to transfer this Note on the books of the Company. The Agent may
substitute another to act for him.
[Check One]
-----------
[ ] (a) this Note is being transferred in compliance with the exemption from
registration under the Securities Act provided by Rule 144A
thereunder.
or
--
[ ] (b) this Note is being transferred other than in accordance with (a)
above and documents are being furnished which comply with the
conditions of transfer set forth in this Note and the Indenture.
If none of the foregoing boxes is checked, the Trustee or Registrar shall not be
obligated to register this Note in the name of any person other than the Holder
hereof unless and until the conditions to any such transfer of registration set
forth herein and in Section 2.15 of the Indenture shall have been satisfied.
-2-
Date:____________________ Your Signature:__________________
_________________________________
(Sign exactly as your name
appears on the other side of
this Note)
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this
Note for its own account or an account with respect to which it exercises sole
investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A or has determined not to request
such information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: __________________ _____________________________
NOTICE: To be executed by
an executive officer
OPTION OF HOLDER TO ELECT PURCHASE
----------------------------------
If you want to elect to have all or any part of this Note purchased by
the Company pursuant to Section 4.08 or Section 4.15 of the Indenture, check the
appropriate box:
[_] Section 4.08 [_] Section 4.15
If you want to have only part of the Note purchased by the Company
pursuant to Section 4.08 or Section 4.15 of the Indenture, state the amount you
elect to have purchased:
(euro)_________________
Date: ____________
Your Signature: _____________________
(Sign exactly as your name appears on the face of this
Note)
EXHIBIT B
---------
FORM OF LEGEND FOR GLOBAL NOTES
-------------------------------
Any Global Note authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a Restricted Security) in substantially the following form:
THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS NOTE IS NOT EXCHANGEABLE FOR NOTES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO
TRANSFER OF THIS NOTE (OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY
TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF THE DEPOSITORY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO THE DEPOSITORY
OR SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, THE DEPOSITORY, HAS AN INTEREST HEREIN.
B-1
EXHIBIT C
---------
Form of Certificate to Be
Delivered in Connection with
Transfers to Non-QIB Accredited Investors
-----------------------------------------
___________, ____
Re: Antenna TV S.A.
(the "Company") 9 3/4%
Senior Notes due 2008
(the "Notes")
----------------------
Dear Sirs:
In connection with our proposed purchase of (euro)_______ aggregate
principal amount of the Notes, we confirm that:
1. We understand that any subsequent transfer of the Notes is subject
to certain restrictions and conditions set forth in the Indenture dated as
of June 18, 2001 relating to the Notes and the undersigned agrees to be
bound by, and not to resell, pledge or otherwise transfer the Securities
except in compliance with, such restrictions and conditions and the
Securities Act of 1933, as amended (the "Securities Act").
2. We understand that the Notes have not been registered under the
Securities Act, and that the Notes may not be offered or sold except as
permitted in the following sentence. We agree, on our own behalf and on
behalf of any accounts for which we are acting as hereinafter stated, that
if we should sell any Notes within two years after the original issuance of
the Notes, we will do so only (A) to the Company or any subsidiary thereof,
(B) inside the United States in compliance with Rule 144A under the
Securities Act, to a "qualified institutional buyer" (as defined in Rule
144A), (C) inside the United States to an institutional "accredited
investor" (as defined below) that is purchasing Notes with an aggregate
principal amount, plus accrued and unpaid interest, if any, of at least
$250,000 and that, prior to such transfer, furnishes to you a signed letter
substantially in the form of this letter, (D) outside the United States to
a foreign person in compliance with Rule 904 of Regulation S under the
Securities Act, (E) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (F) pursuant to an
effective
C-1
registration statement under the Securities Act, and we further agree to
provide to any person purchasing any of the Notes from us a notice advising
such purchaser that resales of the Notes are restricted as stated herein.
3. We understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the Company such certifications, legal
opinions and other information as you and the Company may reasonably
require to confirm that the proposed sale complies with the foregoing
restrictions. We further understand that the Notes purchased by us will
bear a legend to the foregoing effect.
4. We are an "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act) and have such knowledge and
experience in financial and business matters as to be capable of evaluating
the merits and risks of our investment in the Notes, and we and any
accounts for which we are acting are each able to bear the economic risk of
our or its investment.
5. We are acquiring the Notes purchased by us for our own account or
for one or more accounts (each of which is an institutional "accredited
investor") as to each of which we exercise sole investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby.
Very truly yours,
[Name of Transferee]
By: ___________________________
Authorized Signature
C-2
D-1
EXHIBIT D
---------
Form of Certificate to Be
Delivered in Connection with
Transfers Pursuant to Regulation S
----------------------------------
______________, ____
[ ]
Re: Antenna TV S.A.
(the "Company") 9 3/4%
Senior Notes due 2008
(the "Notes")
----------------------
Dear Sirs:
In connection with our proposed sale of (euro)___________ aggregate
principal amount of the Notes, we confirm that such sale has been effected
pursuant to and in accordance with Regulation S under the U.S. Securities Act of
1933, as amended (the "Securities Act"), and, accordingly, we represent that:
(1) the offer of the Notes was not made to a person in the United
States;
(2) either (a) at the time the buy offer was originated, the
transferee was outside the United States or we and any person acting on our
behalf reasonably believed that the transferee was outside the United
States, or (b) the transaction was executed in, on or through the
facilities of a designated off-shore securities market and neither we nor
any person acting on our behalf knows that the transaction has been pre-
arranged with a buyer in the United States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of
Regulation S, as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act;
(5) we understand that, on any proposed resale of any Notes, we will
be required to furnish to you and the
D-1
Company such certifications, legal opinions and other information as you
and the Company may reasonably require to confirm that the proposed sale
complies with the foregoing restrictions. We further understand that the
Notes purchased by us will bear a legend to the foregoing effect; and
(6) we have advised the transferee of the transfer restrictions
applicable to the Notes.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceedings or official inquiry with
respect to the matters covered hereby. Terms used in this certificate have the
meanings set forth in Regulation S.
Very truly yours,
[Name of Transferor]
By: ___________________________
Authorized Signature
