S&S DRAFT OF JUNE 14, 1998
================================================================================
EURONET SERVICES INC.
TO
STATE STREET BANK AND TRUST COMPANY,
Trustee
--------------------
Indenture
Dated as of ., 1998
---------------------
DM 182,485,000
.% Senior Discount Notes due 2006
================================================================================
EURONET SERVICES INC.
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of ., 1998
Trust Indenture
Act Section Indenture Section
(S) 310(a)(1) ........................................... 607
(a)(2) ........................................... 607
(b) ........................................... 608
(S) 312(c) ........................................... 701
(S) 314(a) ........................................... 703
(a)(4) ........................................... 1008(a)
(c)(1) ........................................... 102
(c)(2) ........................................... 102
(e) ........................................... 102
(S) 315(b) ........................................... 601
(S) 316(a)(last
sentence) ........................................... 101
(a)(1)(A) ........................................... 502, 512
(a)(1)(B) ........................................... 513
(b) ........................................... 508
(c) ........................................... 104(d)
(S) 317(a)(1) ........................................... 503
(a)(2) ........................................... 504
(b) ........................................... 1003
(S) 318(a) ........................................... 111
- -----------------------
Note: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of the Indenture.
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY...................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.................................................... 2
-----------
Accreted Value.......................................................... 2
Acquired Indebtedness................................................... 3
Act..................................................................... 3
Affiliate............................................................... 3
Agent................................................................... 4
Annualized Pro Forma Consolidated Operating Cash Flow................... 4
Asset Sale.............................................................. 4
ATM Network Assets...................................................... 5
ATM Network Business.................................................... 5
Attributable Value...................................................... 5
Average Life............................................................ 5
Bank Facility........................................................... 5
Bankruptcy Law.......................................................... 5
Board of Directors...................................................... 5
Board Resolution........................................................ 6
Business Day............................................................ 6
Capital Stock........................................................... 6
Capitalized Lease Obligation............................................ 6
Cash Equivalents........................................................ 6
Cedel................................................................... 6
Change of Control....................................................... 6
Closing Date............................................................ 7
Commission.............................................................. 7
Company................................................................. 7
Company Request or Company Order........................................ 8
Consolidated Adjusted Net Income........................................ 8
Consolidated Interest Expense........................................... 8
Consolidated Operating Cash Flow........................................ 9
Consolidated Tax Expense................................................ 9
Corporate Trust Office.................................................. 9
Corporation............................................................. 9
- --------------------
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
ii
Page
Currency Agreements.................................................... 9
DBC.................................................................... 9
DBC Accountholder...................................................... 9
DBC Global Note........................................................ 9
Default................................................................ 10
Defaulted Interest..................................................... 10
Disinterested Director................................................. 10
DM..................................................................... 10
DM Paying Agent........................................................ 10
DTC.................................................................... 10
DTC Global Note........................................................ 10
DTC Participant........................................................ 10
Equity Offerings....................................................... 10
Euroclear.............................................................. 10
Event of Default....................................................... 10
Exchange Act........................................................... 10
Existing Subsidiaries.................................................. 10
Federal Bankruptcy Code................................................ 10
Generally Accepted Accounting Principles or GAAP....................... 11
Global Notes........................................................... 11
guarantee.............................................................. 11
Holder................................................................. 11
Incur.................................................................. 11
Indebtedness........................................................... 11
Indenture.............................................................. 12
Interest Payment Date.................................................. 12
Interest Rate Agreements............................................... 12
Investment............................................................. 12
Issue Date............................................................. 12
Lien................................................................... 12
Maturity............................................................... 13
Moody's................................................................ 13
Net Cash Proceeds...................................................... 13
Note Register.......................................................... 13
Notes.................................................................. 14
Officers' Certificate.................................................. 14
Opinion of Counsel..................................................... 14
Outstanding............................................................ 14
Paying Agent........................................................... 15
Permitted Capital Stock Sales.......................................... 15
Permitted Holder....................................................... 15
Permitted Indebtedness................................................. 15
Permitted Investments.................................................. 17
iii
Page
Permitted Liens........................................................ 18
Person................................................................. 19
Predecessor Note....................................................... 19
Preferred Stock........................................................ 20
Purchase Money Indebtedness............................................ 20
Qualified Capital Stock................................................ 20
Redeemable Capital Stock............................................... 20
Redemption Date........................................................ 20
Redemption Price....................................................... 20
Regular Record Date.................................................... 20
Responsible Officer.................................................... 20
Restricted Payments.................................................... 21
Restricted Subsidiary.................................................. 21
S&P.................................................................... 21
Sale and Leaseback Transaction......................................... 21
Significant Subsidiary................................................. 21
Special Record Date.................................................... 21
Stated Maturity........................................................ 21
Subordinated Indebtedness.............................................. 21
Subsidiary............................................................. 21
Tax.................................................................... 21
Taxing Authority....................................................... 22
Total Consolidated Indebtedness........................................ 22
Total Consolidated Indebtedness to Annualized Pro Forma Consolidated
Operating Cash Flow Ratio.............................................. 22
Trust Indenture Act or TIA............................................. 22
Trustee................................................................ 22
Unrestricted Subsidiary................................................ 22
U.S. Dollar Equivalent................................................. 23
U.S. Paying Agent...................................................... 23
Vice President......................................................... 23
Voting Stock........................................................... 23
Wholly Owned........................................................... 23
SECTION 102. Compliance Certificates and Opinions.......................... 24
------------------------------------
SECTION 103. Form of Documents Delivered to Trustee........................ 24
--------------------------------------
SECTION 104. Acts of Holders............................................... 25
---------------
SECTION 105. Notices, etc., to Trustee, Company............................ 26
----------------------------------
SECTION 106. Notice to Holders; Waiver..................................... 26
-------------------------
SECTION 107. Effect of Headings and Table of Contents...................... 27
----------------------------------------
SECTION 108. Successors and Assigns........................................ 27
----------------------
SECTION 109. Separability Clause........................................... 27
-------------------
SECTION 110. Benefits of Indenture......................................... 27
---------------------
SECTION 111. Governing Law................................................. 27
-------------
iv
Page
SECTION 112. Legal Holidays................................................ 28
--------------
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally............................................... 29
---------------
SECTION 202. Form of Face of DTC Global Note............................... 29
-------------------------------
SECTION 203. Form of Face of DBC Global Note............................... 31
-------------------------------
SECTION 204. Form of Reverse of Note....................................... 34
-----------------------
SECTION 205. Form of Trustee's Certificate of Authentication............... 37
-----------------------------------------------
ARTICLE THREE
THE NOTES
SECTION 301. Title and Terms............................................... 38
---------------
SECTION 302. Denominations................................................. 38
-------------
SECTION 303. Execution, Authentication, Delivery and Dating................ 38
----------------------------------------------
SECTION 304. Temporary Notes............................................... 39
---------------
SECTION 305. Form of Notes................................................. 40
-------------
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes................... 41
-------------------------------------------
SECTION 307. Payment of Interest; Interest Rights Preserved................ 41
----------------------------------------------
SECTION 308. Persons Deemed Owners......................................... 43
---------------------
SECTION 309. Cancellation.................................................. 43
------------
SECTION 310. Computation of Interest....................................... 43
-----------------------
SECTION 311. Registration, Registration of Transfer and Exchange........... 43
---------------------------------------------------
SECTION 312. Registrar and Paying Agent.................................... 46
--------------------------
SECTION 313. Holder to Be Treated as Owner................................. 47
-----------------------------
SECTION 314. Paying Agent to Hold Money in Trust........................... 48
-----------------------------------
SECTION 315. Payment....................................................... 48
-------
SECTION 316. CUSIP Numbers................................................. 49
-------------
SECTION 317. Deposit of Moneys............................................. 50
-----------------
SECTION 318. Substitution of Currency...................................... 50
------------------------
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture....................... 51
---------------------------------------
SECTION 402. Application of Trust Money.................................... 52
--------------------------
v
Page
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default............................................. 53
-----------------
SECTION 502. Acceleration of Maturity; Rescission and Annulment............ 54
--------------------------------------------------
SECTION 503. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.............................................. 55
----------
SECTION 504. Trustee May File Proofs of Claim.............................. 56
--------------------------------
SECTION 505. Trustee May Enforce Claims Without Possession of Notes........ 57
------------------------------------------------------
SECTION 506. Application of Money Collected................................ 57
------------------------------
SECTION 507. Limitation on Suits........................................... 58
-------------------
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.................................... 58
--------------------
SECTION 509. Restoration of Rights and Remedies............................ 59
----------------------------------
SECTION 510. Rights and Remedies Cumulative................................ 59
------------------------------
SECTION 511. Delay or Omission Not Waiver.................................. 59
----------------------------
SECTION 512. Control by Holders............................................ 59
------------------
SECTION 513. Waiver of Past Defaults....................................... 60
-----------------------
SECTION 514. Waiver of Stay or Extension Laws.............................. 60
--------------------------------
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults............................................ 61
------------------
SECTION 602. Certain Rights of Trustee..................................... 61
-------------------------
SECTION 603. Trustee Not Responsible for Recitals or Issuance of Notes..... 62
---------------------------------------------------------
SECTION 604. May Hold Notes................................................ 62
--------------
SECTION 605. Money Held in Trust........................................... 63
-------------------
SECTION 606. Compensation and Reimbursement................................ 63
------------------------------
SECTION 607. Corporate Trustee Required; Eligibility....................... 64
---------------------------------------
SECTION 608. Resignation and Removal; Appointment of Successor............. 64
-------------------------------------------------
SECTION 609. Acceptance of Appointment by Successor........................ 65
--------------------------------------
SECTION 610. Merger, Conversion, Consolidation or Succession to Business... 66
-----------------------------------------------------------
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.................. 67
--------------------------------------------
SECTION 702. Reports by Trustee............................................ 67
------------------
SECTION 703. Reports by Company............................................ 67
------------------
vi
Page
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.......... 69
----------------------------------------------------
SECTION 802. Successor Substituted......................................... 70
---------------------
SECTION 803. Notes to Be Secured in Certain Events......................... 70
-------------------------------------
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders............ 72
--------------------------------------------------
SECTION 902. Supplemental Indentures with Consent of Holders............... 73
-----------------------------------------------
SECTION 903. Execution of Supplemental Indentures.......................... 74
------------------------------------
SECTION 904. Effect of Supplemental Indentures............................. 74
---------------------------------
SECTION 905. Conformity with Trust Indenture Act........................... 74
-----------------------------------
SECTION 906. Reference in Notes to Supplemental Indentures................. 74
---------------------------------------------
SECTION 907. Notice of Supplemental Indentures............................. 74
---------------------------------
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.......... 75
---------------------------------------------------
SECTION 1002. Maintenance of Office or Agency.............................. 75
-------------------------------
SECTION 1003. Money for Note Payments to Be Held in Trust.................. 75
-------------------------------------------
SECTION 1004. Corporate Existence.......................................... 77
-------------------
SECTION 1005. Payment of Taxes and Other Claims............................ 77
---------------------------------
SECTION 1006. Maintenance of Properties.................................... 77
-------------------------
SECTION 1007. Insurance.................................................... 77
---------
SECTION 1008. Statement by Officers As to Default.......................... 78
-----------------------------------
SECTION 1009. Provision of Financial Statements and Reports................ 78
---------------------------------------------
SECTION 1010. Purchase of Notes upon Change of Control..................... 78
----------------------------------------
SECTION 1011. Limitation on Additional Indebtedness........................ 79
-------------------------------------
SECTION 1012. Limitation on Restricted Payments............................ 80
---------------------------------
SECTION 1013. Limitation on Issuances and Sales of Capital Stock of
-----------------------------------------------------
Restricted Subsidiaries................................. 83
-----------------------
SECTION 1014. Limitation on Transactions with Affiliates................... 84
------------------------------------------
SECTION 1015. Limitation on Liens.......................................... 85
-------------------
SECTION 1016. Limitation on Issuances of Guarantees of Indebtedness
-----------------------------------------------------
by Restricted Subsidiaries.............................. 85
--------------------------
SECTION 1017. Limitation on Sale of Assets................................. 86
----------------------------
SECTION 1018. Limitation on Sale and Leaseback Transactions................ 86
---------------------------------------------
SECTION 1019. Limitation on Dividends and Other Payment
-----------------------------------------
Restrictions Affecting Restricted Subsidiaries.......... 87
----------------------------------------------
vii
Page
SECTION 1020. Limitation on Investments in Unrestricted Subsidiaries....... 88
------------------------------------------------------
SECTION 1021. Business of the Company...................................... 88
-----------------------
SECTION 1022. Waiver of Certain Covenants.................................. 88
---------------------------
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.......................................... 89
-------------------
SECTION 1102. Applicability of Article..................................... 89
------------------------
SECTION 1103. Election to Redeem; Notice to Trustee........................ 89
-------------------------------------
SECTION 1104. Selection by Trustee of Notes to Be Redeemed................. 90
--------------------------------------------
SECTION 1105. Notice of Redemption......................................... 90
--------------------
SECTION 1106. Deposit of Redemption Price.................................. 91
---------------------------
SECTION 1107. Notes Payable on Redemption Date............................. 91
--------------------------------
SECTION 1108. Notes Redeemed in Part....................................... 92
----------------------
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or
----------------------------------------
Covenant Defeasance..................................... 93
-------------------
SECTION 1202. Defeasance and Discharge..................................... 93
------------------------
SECTION 1203. Covenant Defeasance.......................................... 93
-------------------
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.............. 94
-----------------------------------------------
SECTION 1205. Deposited Money and U.S. Government Obligations to
--------------------------------------------------
Be Held in Trust; Other Miscellaneous Provisions........ 95
------------------------------------------------
SECTION 1206. Reinstatement................................................ 96
-------------
INDENTURE, dated as of ., 1998 between EURONET SERVICES INC., a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 14-24 Horvat u.,
1027 Budapest, Hungary and STATE STREET BANK AND TRUST COMPANY, a banking
corporation duly organized and existing under the laws of Massachusetts, Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of .% Senior
Discount Notes due 2006 (herein called the "Notes"), of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
All things necessary have been done to make the Notes, when executed
by the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and to make this Indenture a valid
agreement of the Company, in accordance with their and its terms.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Notes, as follows:
2
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
-----------
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and "self-
liquidating paper", as used in TIA Section 311, shall have the meanings
assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(d) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Accreted Value" is defined to mean, for any Specified Date, the
amount calculated pursuant to clause (i), (ii), (iii) or (iv) below for each DM
1,000 principal amount at maturity of Notes:
(i) if the Specified Date occurs on one or more of the following
dates (each a "Semi-Annual Accrual Date"), the Accreted Value will equal the
amount set forth below for such Semi-Annual Accrual Date:
3
Semi-Annual
Accrual Date Accreted Value
- ------------ --------------
, 1998 ......................................................... DM
, 1999 ......................................................... DM
, 1999 ......................................................... DM
, 2000 ......................................................... DM
, 2000 ......................................................... DM
, 2001 ......................................................... DM
, 2001 ......................................................... DM
, 2002 ......................................................... DM 1,000
(ii) if the Specified Date occurs before the first Semi-Annual
Accrual Date, the Accreted Value will equal the sum of (a) the original issue
price and (b) an amount equal to the product of (i) the Accreted Value for the
first Semi-Annual Accrual Date less the original issue price multiplied by (2) a
fraction, the numerator of which is the number of days from the Issue Date to
the Specified Date, using a 360-day year of twelve 30-day months, and the
denominator of which is the number of days elapsed from the Issue Date to the
first Semi-Annual Accrual Date, using a 360-day year of twelve 30-day months;
(iii) if the Specified Date occurs between two Semi-Annual Accrual
Dates, the Accreted Value will equal the sum of (a) the Accreted Value for the
Semi-Annual Accrual Date immediately preceding such Specified Date and (b) an
amount equal to the product of (1) the Accreted Value for the immediately
following Semi-Annual Accrual Date less the Accreted Value for the immediately
preceding Semi-Annual Accrual Date multiplied by (2) a fraction the numerator of
which is the number of days from the immediately preceding Semi-Annual Accrual
Date to the Specified Date, using a 360-day year of twelve 30-day months, and
the denominator of which is 180; or
(iv) if the Specified Date occurs after the last Semi-Annual Accrual
Date, the Accreted Value will equal DM 1,000.
"Acquired Indebtedness" means Indebtedness of a Person (a) existing
at the time such Person becomes a Restricted Subsidiary or (b) assumed in
connection with the acquisition of assets from such Person, in each case, other
than Indebtedness incurred in connection with, or in contemplation of, such
Person becoming a Restricted Subsidiary or such acquisition; provided that,
--------
notwithstanding the foregoing, for purposes of the "Limitation on Additional
Indebtedness" covenant (Section 1011), such Indebtedness shall be deemed to be
incurred on the date of the related acquisition of assets from any Person or the
date the acquired Person becomes a Restricted Subsidiary.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Affiliate" means, with respect to any specified Person, (i) any
other Person directly or indirectly controlling or controlled by or under direct
or indirect common
4
control with such specified Person or (ii) any other Person that owns, directly
or indirectly, 10% or more of such specified Person's Voting Stock or any
executive officer or director of any such specified Person or other Person or,
with respect to any natural Person, any Person having a relationship with such
Person by blood, marriage or adoption not more remote than first cousin. For the
purposes of this definition, "control," when used with respect to any specified
Person, means the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting notes, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Agent" means any Registrar, Paying Agent, authenticating agent or
co-Registrar.
"Annualized Pro Forma Consolidated Operating Cash Flow" means
Consolidated Operating Cash Flow for the latest fiscal quarter for which
consolidated financial statements of the Company are available immediately
preceding the date of the transaction giving rise to the need to calculate
Annualized Pro Forma Consolidated Operating Cash Flow (the "Transaction Date")
multiplied by four. For purposes of calculating "Consolidated Operating Cash
Flow" for any fiscal quarter for purposes of this definition, (i) any Restricted
Subsidiary that is a Restricted Subsidiary on the Transaction Date shall be
deemed to have been a Restricted Subsidiary at all times during such fiscal
quarter and (ii) any Restricted Subsidiary that is not a Restricted Subsidiary
on the Transaction Date shall be deemed not to have been a Restricted Subsidiary
at any time during such fiscal quarter.
"Asset Sale" means any sale, conveyance, transfer, lease or other
disposition (including, without limitation, by way of merger, consolidation or
sale and leaseback transaction) (collectively, a "transfer"), directly or
indirectly, in one or a series of related transactions, of (i) any Capital Stock
of any Restricted Subsidiary; (ii) all or substantially all of the properties
and assets of the Company or its Restricted Subsidiaries; (iii) any material
license or other authorization of the Company or any Restricted Subsidiary
pertaining to an Electronics Fund Transfer Business or (iv) any other properties
or assets of the Company or any Restricted Subsidiary, other than in the
ordinary course of business. For the purposes of this definition, the term
"Asset Sale" shall not include any transfer of properties or assets (A) that is
governed by the provisions of the Indenture described under Article Eight, (B)
of the Issuer to any Restricted Subsidiary, or of any Restricted Subsidiary to
the Company or any Restricted Subsidiary in accordance with the terms of the
Indenture, (C) having a fair market value of less than $250,000 (or, to the
extent not denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof) in
any given fiscal year or (D) any transfer by the Company or a Restricted
Subsidiary of property or equipment to a Person who is not an Affiliate of the
Company in exchange for property or equipment that has a fair market value at
least equal to the fair market value of the property or equipment so
transferred; provided that, in the event of a transfer described in this clause
--------
(D), the Company shall deliver to the Trustee an officers' certificate
certifying that such exchange complies with this clause (D).
5
"ATM Network Assets" means all assets, rights (contractual or
otherwise) and properties, whether tangible or intangible, used or useful in
connection with an ATM Network Business.
"ATM Network Business" means, when used in reference to any Person,
that such Person is engaged primarily in the business of (i) operating or
managing ATMs or networks of ATMs, (ii) processing financial transactions on
behalf of Persons issuing credit and debit cards and Persons operating ATMs or
networks of ATMs, (iii) creating, developing, manufacturing, installing,
operating, maintaining, leasing or servicing ATMs or point of sale authorization
equipment or related equipment, software and other devices for use in an ATM
Network Business, (iv) providing goods or services to any Person engaged in an
ATM Network Business or (v) evaluating, participating in or pursuing any other
activity, service or opportunity that is reasonably related to those identified
in (i), (ii), (iii) or (iv) above including, but not limited to, activities
reasonably related to the issuance of credit and debit cards.
"Attributable Value" means, with respect to any lease at the time of
determination, the present value (discounted at the interest rate implicit in
the lease or, if not known, at the Company's incremental borrowing rate) of the
obligations of the lessee of the property subject to such lease for rental
payments during the remaining term of the lease included in such transaction,
including any period for which such lease has been extended or may, at the
option of the lessor, be extended, or until the earliest date on which the
lessee may terminate such lease without penalty or upon payment of penalty (in
which case the rental payments shall include such penalty), after excluding from
such rental payments all amounts required to be paid on account of maintenance
and repairs, insurance, taxes, assessments, water utilities and similar charges.
"Average Life" means, as of the date of determination with respect to
any Indebtedness, the quotient obtained by dividing (a) the sum of the products
of (i) the number of years from the date of determination to the date or dates
of all successive scheduled principal payment (including, without limitation,
any sinking fund requirements) of such Indebtedness multiplied by (ii) the
amount of each such principal payment by (b) the sum of all such principal
payments.
"Bank Facility" means Indebtedness of the Company or any Restricted
Subsidiary under a senior bank facility with one or more banks or other
commercial financial institutions.
"Bankruptcy Law" means Title 11 of the United States Code, as
amended, or any similar United States federal or state law, or any similar law
of any other jurisdiction, relating to bankruptcy, insolvency, receivership,
winding-up, liquidation, reorganization or relief of debtors or any amendment
to, succession to or change in any such law.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
6
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close (and, as applied
to any term requiring any action to be taken by the Trustee, which is not a day
on which banking institutions in the city in which the Corporate Trust Office of
the Trustee is located are authorized or obligated by law or executive order to
close).
"Capital Stock" means, with respect to any Person, any and all
shares, interests, partnership interests, participations, rights in or other
equivalent equity interests (however designated) issued by such Person, and any
rights (other than debt notes convertible into capital stock), warrants or
options exchangeable for or convertible into such capital stock, whether now
outstanding or issued after the date of the Indenture.
"Capitalized Lease Obligation" means, with respect to any Person, any
obligation of such Person 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 for as a capital lease obligation under GAAP.
"Cash Equivalents" means (i) any evidence of Indebtedness with a
maturity of 180 days or less issued or directly and fully guaranteed or insured
by the government of the United States of America, the Federal Republic of
Germany, the Republic of France or the United Kingdom or any agency or
instrumentality thereof, (ii) deposits, certificates of deposit or acceptances
with a maturity of 180 days or less of any financial institution that is a
member of the Federal Reserve system, in each case having combined capital and
surplus and undivided profits (or any similar capital concept) of not less than
$500 million (or, if not denominated in U.S. Dollars, the U.S. Dollar Equivalent
thereof); (iii) commercial paper, with a maturity of 180 days or less issued by
a corporation (other than an Affiliate of the Company) organized under the laws
of a member state of the European Union or the United States or any state
thereof or the District of Columbia and rated at least ''A-2'' by Standard &
Poor's Corporation or "P-2" by Moody's Investors Service; and (iv) repurchase
agreements and reverse repurchase agreements relating to marketable direct
obligations issued or unconditionally guaranteed by the United States government
(in the case of any U.S. government obligations), in each case maturing within
one year from the date of acquisition.
"Cedel" means Cedel Bank, societe anonyme.
"Change of Control" means the occurrence of any of the following
events: (a) any "person" or "group" (as such terms are used in Sections 13(d)
and 14(d) of the Exchange Act), other than a Permitted Holder, is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act,
except that a Person shall be deemed to have "beneficial ownership" of all notes
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
7
than 50% of the total outstanding Voting Stock of the Company; (b) the Company
consolidates with, or merges with or into another Person or conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets to any
Person, or any Person consolidates with or merges with or into the Company, in
any such event pursuant to a transaction in which the outstanding Voting Stock
of the Company is converted into or exchanged for cash, notes or other property,
other than any such transaction where (i) the outstanding Voting Stock of the
Company is not converted or exchanged at all (except to the extent necessary to
reflect a change in the jurisdiction of incorporation of the Company) or is
converted into or exchanged for (A) Voting Stock (other than Redeemable Capital
Stock) of the surviving or transferee corporation or (B) Voting Stock (other
than Redeemable Capital Stock) of the surviving or transferee corporation and
cash, notes and other property (other than Capital Stock of the Surviving
Entity) in an amount that could be paid by the Company as a Restricted Payment
as described under the "Limitation on Restricted Payments" covenant (Section
1012) and (ii) immediately after such transaction, no "person" or "group" (as
such terms are used in Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, is the "beneficial owner" (as defined in Rules 13d-3 and 13d-
5 under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all notes 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 50% of the total outstanding Voting
Stock of the surviving or transferee corporation; (c) during any consecutive two
year period, individuals who at the beginning of such period constituted the
Board of Directors of the Company (together with any new directors whose
election to such Board of Directors, or whose nomination for election by the
stockholders of the Company, was approved by a vote of 66 2/3% of the directors
then still in office who were either directors at the beginning of such period
or whose election or nomination for election was previously so approved) cease
for any reason to constitute a majority of the Board of Directors of the Company
then in office; or (d) the Company is liquidated or dissolved or a special
resolution is passed by the shareholders of the Company approving the plan of
liquidation or dissolution other than in a transaction which complies with the
provisions described in Article Eight.
"Closing Date" means the date on which the Notes are originally
issued under this Indenture.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this Indenture such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture, until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
8
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman, its President, any Vice
President, its Treasurer or an Assistant Treasurer, and delivered to the
Trustee.
"Consolidated Adjusted Net Income" means, for any period, the
consolidated net income (or loss) of the Company and all Restricted Subsidiaries
for such period as determined in accordance with GAAP, adjusted by excluding,
without duplication, (a) any net after-tax extraordinary gains or losses (less
all fees and expenses relating thereto), (b) any net after-tax gains or losses
(less all fees and expenses relating thereto) attributable to asset dispositions
other than in the ordinary course of business, (c) the portion of net income (or
loss) of any Person (other than the Company or a Restricted Subsidiary),
including Unrestricted Subsidiaries, in which the Company or any Restricted
Subsidiary has an ownership interest, except to the extent of the amount of
dividends or other distributions actually paid to the Company or any Restricted
Subsidiary in cash dividends or distributions during such period, (d) net income
(but not loss) of any Person combined with the Company or any Restricted
Subsidiary on a "pooling of interests" basis attributable to any period prior to
the date of combination, (e) the net income of any Restricted Subsidiary, to the
extent that the declaration or payment of dividends or similar distributions by
such Restricted Subsidiary is not at the date of determination permitted,
directly or indirectly, by operation of the terms of its charter or any
agreement, instrument, judgment, decree, order, statute, rule or governmental
regulation applicable to such Restricted Subsidiary or its stockholders and (f)
any gain or loss, net of taxes, realized upon the termination of any employee
benefit plan.
"Consolidated Interest Expense" means, for any period, without
duplication, the sum of (a) the interest expense of the Company and its
Restricted Subsidiaries for such period, including, without limitation, (i)
amortization of debt discount, (ii) the net cost of Interest Rate Agreements
(including amortization of discounts), (iii) the interest portion of any
deferred payment obligation, (iv) accrued interest, (v) the consolidated amount
of any interest capitalized by the Company and (vi) amortization of debt
issuance costs, plus (b) the interest component of Capitalized Lease Obligations
of the Company and its Restricted Subsidiaries paid, accrued and/or scheduled to
be paid or accrued during such period, plus (c) cash and non-cash dividends due
(whether or not declared) on Redeemable Capital Stock or Preferred Stock by the
Company and any Restricted Subsidiary (to any Person other than the Company and
any Wholly Owned Subsidiary), plus (d) one third of operating lease rental
payments paid, accrued and/or scheduled to be paid or accrued during such
period, in each case as determined on a consolidated basis in accordance with
GAAP; provided that the Consolidated Interest Expense attributable to interest
--------
on any Indebtedness computed on a pro forma basis and (A) bearing a floating
--- -----
interest rate shall be computed as if the rate in effect on the date of
computation had been the applicable rate for the entire period and (B) which was
not outstanding during the period for which the computation is being made but
which bears, at the option of the Company, a fixed or floating rate of interest,
shall be computed by applying, at the option of the Company, either the fixed or
the floating rate.
9
"Consolidated Operating Cash Flow" means, with respect to any period,
the Consolidated Adjusted Net Income for such period (a) increased by (to the
extent included in computing Consolidated Adjusted Net Income) the sum of (i)
the Consolidated Tax Expense for such period (other than taxes attributable to
extraordinary, unusual or non-recurring gains or losses); (ii) Consolidated
Interest Expense for such period; (iii) depreciation of the Company and the
Restricted Subsidiaries for such period, determined on a consolidated basis in
accordance with GAAP; (iv) amortization of the Company and the Restricted
Subsidiaries for such period, determined on a consolidated basis in accordance
with GAAP; and (v) any other non-cash charges that were deducted in computing
Consolidated Adjusted Net Income (excluding any non-cash charge which requires
an accrual or reserve for cash charges for any future period) of the Company and
Restricted Subsidiaries for such period in accordance with GAAP and (b)
decreased by any non-cash gains that were included in computing Consolidated
Adjusted Net Income.
"Consolidated Tax Expense" means, for any period, the provision for
federal, state, provincial, local and foreign income taxes of the Company and
all Restricted Subsidiaries for such period as determined on a consolidated
basis in accordance with GAAP.
"Corporate Trust Office" means the principal corporate trust office
of the Trustee, at which at any particular time its corporate trust business
shall be administered, which office at the date of execution of this Indenture
is located at Two International Place, Fourth Floor, Boston, MA 02110-2804,
except that with respect to presentation of Notes for payment or for
registration of transfer or exchange, such term shall mean the office or agency
of the Trustee at which, at any particular time, its corporate agency business
shall be conducted.
"Corporation" includes corporations, associations, companies and
business trusts.
"Currency Agreements" means any spot or forward foreign exchange
agreements and currency swap, currency option or other similar financial
agreements or arrangements entered into by the Company or any of its Restricted
Subsidiaries designed solely to protect against or manage exposure to
fluctuations in currency exchange rates.
"DBC" means Deutsche Borse Clearing, Frankfurt am Main and any
successor thereto.
"DBC Accountholder" has the meaning specified in Section 313.
"DBC Global Note" means the bearer global Note without coupons,
deposited with DBC, the face of which shall be substantially in the form of
Section 203, which will represent all of the Notes sold outside of the United
States (except for Notes sold outside of the United States to investors electing
settlement through DTC).
10
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307.
"Disinterested Director" means, with respect to any transaction or
series of transactions in respect of which the Board of Directors is required to
deliver a resolution of the Board of Directors under the Indenture, a member of
the Board of Directors who does not have any material direct or indirect
financial interest in or with respect to such transaction or series of
transactions.
"DM" means Deutsche Mark.
"DM Paying Agent" has the meaning set forth in Section 315.
"DTC" means The Depositary Trust Company and any successor depositary
for beneficial interests in the Notes.
"DTC Global Note" means the bearer global Note or Notes without
coupons, deposited with State Street Bank and Trust Company as custodian for
DTC, the face of which shall be substantially in the form of Section 202, which
will represent all of the Notes sold in the United States and to investors
electing settlement through DTC.
"DTC Participant" has the meaning specified in Section 313.
"Equity Offerings" is defined to mean any underwritten public
offerings or flotations or placings of Common Stock of the Company for cash that
has been registered under the Securities Act or admitted to listing on the
Nasdaq National Market or New York Stock Exchange.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Existing Subsidiaries" means Euronet Holding N.V., Euronet-Bank Tech
Rt. (Bank Tech), SatComNet Kft (SatComNet), Bankomat 24/Euronet Sp. z o.o., EFT-
Usluge d o.o., Euronet Services GmbH, Euronet Services France SAS and Euronet
Services spol. sro. and Euronet Services S.r.l.
"Fair Market Value" means, with respect to any asset or property, the
sale value that would be obtained in an arm's length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer, as determined by the Board of Directors of the Company and
evidenced by a resolution thereof.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
11
"Generally Accepted Accounting Principles" or "GAAP" means generally
accepted accounting principles in effect in the United States on the date of the
Indenture.
"Global Notes" means the DTC Global Note and the DBC Global Note.
"guarantee" means, as applied to any obligation, (a) a guarantee
(other than by endorsement of negotiable instruments for collection in the
ordinary course of business), direct or indirect, in any manner, of any part or
all of such obligation and (b) an agreement, direct or indirect, contingent or
otherwise, the practical effect of which is to assure in any way the payment or
performance (or payment of damages in the event of non-performance) of all or
any part of such obligation, including, without limiting the foregoing, the
payment of amounts drawn down by letters of credit.
"Holder" means a Person in whose name a Note is registered in the
Note Register.
"Incur" or "incur" means, with respect to any Indebtedness, to
create, issue, assume, guarantee or in any manner become directly or indirectly
liable for the payment of, or otherwise incur such Indebtedness; provided that
neither the accrual of interest nor the accretion of original issue discount
shall be considered an Incurrence of Indebtedness. Incurrence, Incurred and
Incurring shall have the meanings correlative to the foregoing.
"Indebtedness" means, with respect to any Person, without
duplication, (a) all liabilities, contingent or otherwise, of such Person: (i)
for borrowed money (including overdrafts), (ii) in connection with any letters
of credit and acceptances issued under letter of credit facilities, acceptance
facilities or other similar facilities, (iii) evidenced by bonds, notes,
debentures or other similar instruments, (iv) for the deferred purchase price of
property or services or created or arising under any conditional sale or other
title retention agreement with respect to property acquired by such Person, or
(v) for Capitalized Lease Obligations, (b) all obligations of such Person under
or in respect of Interest Rate Agreements or Currency Agreements, (c) all
indebtedness referred to in (but not excluded from) the preceding clauses of
other Persons and all dividends of other Persons, the payment of which is
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or with respect to
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness (the amount of such obligation being deemed to be
the lesser of the value of such property or asset or the amount of the
obligation so secured), (d) all guarantees by such Person of Indebtedness
referred to in this definition of any other Person and (e) all Redeemable
Capital Stock of such Person valued at the greater of its voluntary or
involuntary maximum fixed repurchase price plus accrued and unpaid dividends.
For purposes hereof, the "maximum fixed repurchase price" of any Redeemable
Capital Stock which does not have a fixed repurchase price shall be calculated
in accordance with the terms of such Redeemable Capital Stock as if such
Redeemable Capital Stock were purchased on any date on which Indebtedness shall
be required to be determined pursuant
12
to the Indenture, and if such price is based upon, or measured by, the fair
market value of such Redeemable Capital Stock, such fair market value shall be
determined in good faith by the board of directors of the Company of such
Redeemable Capital Stock. Notwithstanding the foregoing, trade accounts,
liabilities with respect to pre-paid goods and services, accrued liabilities
arising in the ordinary course of business and any liability for Taxes owed by
such Person will not be considered Indebtedness for purposes of this definition.
For purposes of the "Limitation on Additional Indebtedness" and "Limitation on
Restricted Payments" covenants (Sections 1011 and 1012) and the definition of
"Events of Default," in determining the principal amount of any Indebtedness to
be incurred by the Company or a Restricted Subsidiary or which is outstanding at
any date, (x) the principal amount of any Indebtedness which provides that an
amount less than the principal amount at maturity thereof shall be due upon any
declaration of acceleration thereof shall be the accreted value thereof at the
date of determination and (y) effect shall be given to the impact of any
Currency Agreement with respect to such Indebtedness.
"Indenture" means this instrument as originally executed and as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof.
"Interest Payment Date" means the Stated Maturity of an installment
of interest on the Notes.
"Interest Rate Agreements" means any interest rate protection
agreements and other types of interest rate hedging agreements or arrangements
(including, without limitation, interest rate swaps, caps, floors, collars and
other similar agreements) designed solely to protect the Company or any
Restricted Subsidiary against fluctuations in interest rates in respect of
Indebtedness of the Company or any Restricted Subsidiary.
"Investment" means, with respect to any Person, any direct or
indirect advance, loan or other extension of credit or capital contribution to
(by means of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any purchase,
acquisition or ownership by such Person of any Capital Stock, bonds, notes,
debentures or other notes or evidences of Indebtedness issued or owned by, any
other Person and all other items that would be classified as investments on a
balance sheet prepared in accordance with GAAP. In addition, the fair market
value of the net assets of any Subsidiary at the time that such Subsidiary is
designated an Unrestricted Subsidiary shall be deemed to be an "Investment" made
by the Company in such Unrestricted Subsidiary at such time. "Investments" shall
exclude extensions of trade credit on commercially reasonable terms in
accordance with normal trade practices.
"Issue Date" means the date of the Indenture.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, note interest, hypothecation, assignment for note, claim,
or preference or priority or other encumbrance upon or with respect to any
property of any kind, real or personal,
13
movable or immovable, now owned or hereafter acquired. A Person shall be deemed
to own subject to a Lien any property which such Person has acquired or holds
subject to the interest of a vendor or lessor under any conditional sale
agreement, capital lease or other title retention agreement.
"Maturity" means, with respect to any Note, the date on which any
principal of such Note becomes due and payable as therein or herein provided,
whether at the Stated Maturity with respect to such principal or by declaration
of acceleration, call for redemption or purchase or otherwise.
"Moody's" means Moody's Investors Service, Inc. and its successors.
"Net Cash Proceeds" means (a) 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, or stock
or other assets when disposed for, cash or Cash Equivalents (except to the
extent that such obligations are financed or sold with recourse to the Company
or any Restricted Subsidiary), net of (i) brokerage commissions and other fees
and expenses (including fees and expenses of legal counsel, accountants,
consultants and investment banks) related to such Asset Sale, (ii) provisions
for all taxes payable as a result of such Asset Sale, (iii) payments made to
retire Indebtedness where payment of such Indebtedness is secured by the assets
or properties which are the subject of such Asset Sale, (iv) amounts required to
be paid to any Person (other than the Company or any Restricted Subsidiary)
owning a beneficial interest in the assets subject to the Asset Sale and (v)
appropriate amounts to be provided by the Company or any Restricted Subsidiary,
as the case may be, as a reserve required in accordance with GAAP against any
liabilities associated with such Asset Sale and retained by the Company or any
Restricted Subsidiary, as the case may be, after such Asset Sale, including,
without limitation, trade creditors, pension and other post-employment benefit
liabilities, liabilities related to environmental matters and liabilities under
any indemnification obligations associated with such Asset Sale, all as
reflected in an officers' certificate delivered to the Trustee and (b) with
respect to any issuance or sale of Capital Stock or options, warrants or rights
to purchase Capital Stock, or debt notes or Redeemable Capital Stock that have
been converted into or exchanged for Qualified Capital Stock, as referred to
under the "Limitation on Restricted Payments" covenant (Section 1012), the
proceeds of such issuance or sale in the form of cash or Cash Equivalents,
including payments in respect of deferred payment obligations when received in
the form of, or stock or other assets when disposed for, cash or Cash
Equivalents (except to the extent that such obligations are financed or sold
with recourse to the Company or any Subsidiary of the Company), net of
attorney's fees, accountant's fees and brokerage, consultation, underwriting and
other fees and expenses actually incurred in connection with such issuance or
sale and net of taxes paid or payable as a result thereof.
"Note Register" has the meaning specified in Section 311.
14
"Notes" means any of the notes, as defined in the first paragraph of
the recitals hereof, that are authenticated and delivered under this Indenture.
"Officers' Certificate" means a certificate signed by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, including an employee of the Company, and who shall be
acceptable to the Trustee.
"Outstanding", when used with respect to Notes, means, as of the date
of determination, all Notes theretofore authenticated and delivered under this
Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
(ii) Notes, or portions thereof, for whose payment or redemption
money in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Notes; provided that, if such Notes
--------
are to be redeemed, notice of such redemption has been duly given pursuant
to this Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Notes, except to the extent provided in Sections 1202 and 1203,
with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Twelve; and
(iv) Notes which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Notes have been authenticated and
delivered pursuant to this Indenture, other than any such Notes in respect
of which there shall have been presented to the Trustee proof satisfactory
to it that such Notes are held by a bona fide purchaser in whose hands the
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of Outstanding Notes have given any request, demand,
authorization, direction, consent, notice or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, Notes owned by
the Company or any other obligor upon the Notes or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be Outstanding,
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Notes which the Trustee knows to be
so owned shall be so disregarded. Notes so owned which have been pledged in
good
15
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgees right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or such other obligor.
"Paying Agent" means the DM Paying Agent, any successor thereof, the
U.S. Paying Agent, any successor thereof, and any other Person (including the
Company acting as Paying Agent) authorized by the Company to pay the principal
of (and premium, if any) or interest on any Notes on behalf of the Company.
"Permitted Capital Stock Sales" is defined to mean the issuance, sale
or grant by the Company or any Restricted Subsidiary of Capital Stock of the
Company or any Existing Subsidiary; provided that such issuance, sale or grant
--------
is made to a financial institution, international credit or debit card issuer or
other entity engaged in an ATM Network Business pursuant to an agreement between
the Company or a Restricted Subsidiary, on the one hand, and a financial
institution, international credit or debit card issuer or other entity engage in
an ATM Network Business, on the other hand, to invest in, manage or establish an
ATM Network Business; and, provided further, that such issuances, sales or
-------- -------
grants of Capital Stock, in the aggregate, shall not exceed 5.0% of the
outstanding Capital Stock of the Issuer or any Existing Subsidiary, as the case
may be, and that no dividends, in cash or otherwise, or other distributions on
or in respect of any Capital Stock issued, sold or granted in connection with a
Permitted Capital Stock Sale shall be declared or paid during the term of the
Indenture.
"Permitted Holder" means Michael Brown and Daniel Henry;
"Permitted Indebtedness" means any of the following:
(a) Indebtedness of the Company pursuant to the Notes;
(b) Indebtedness of the Company or any Restricted Subsidiary
outstanding on the date of the Indenture, or undrawn amounts under agreements or
facilities existing on the date of the Indenture, and listed on or of a type
described in a schedule thereto;
(c) (i) Indebtedness of any Restricted Subsidiary owed to and held by
the Company or another Restricted Subsidiary and (ii) Indebtedness of the
Company owed to and held by any Wholly Owned Restricted Subsidiary that is
Subordinated Indebtedness; provided that an incurrence of Indebtedness shall be
--------
deemed to have occurred upon (x) any sale or other disposition (excluding
assignments as security to financial institutions) of any Indebtedness of the
Company or Restricted Subsidiary referred to in this clause (c) to a Person
(other than the Company, a Restricted Subsidiary or a Wholly Owned Restricted
Subsidiary, as the case may be) or (y) any sale or other disposition of Capital
Stock of a Wholly Owned Restricted Subsidiary which holds Indebtedness of the
Company or a Restricted Subsidiary that holds Indebtedness of another Restricted
Subsidiary such that
16
such Wholly Owned Subsidiary ceases to be Wholly Owned or such Restricted
Subsidiary ceases to be a Restricted Subsidiary;
(d) Obligations under any Interest Rate Agreement of the Company or
any Restricted Subsidiary to the extent relating to (i) Indebtedness of the
Company or such Restricted Subsidiary, as the case may be (which Indebtedness
(x) bears interest at fluctuating interest rates and (y) is otherwise permitted
to be incurred under the "Limitation on Additional Indebtedness" covenant
(Section 1011)), or (ii) Indebtedness for which a lender has provided a
commitment in an amount reasonably anticipated to be incurred by the Company or
a Restricted Subsidiary in the following 12 months after such Interest Rate
Agreement has been entered into, but only to the extent that the notional
principal amount of such Interest Rate Agreement does not exceed the principal
amount of the Indebtedness (or Indebtedness subject to commitments) to which
such Interest Rate Agreement relates;
(e) Indebtedness of the Company or any Restricted Subsidiary under
Currency Agreements to the extent relating to (i) Indebtedness of the Company or
a Restricted Subsidiary (which Indebtedness is otherwise permitted to be
incurred under the "Limitation on Additional Indebtedness" covenant (Section
1011)) or (ii) obligations to purchase assets, properties or services incurred
in the ordinary course of business of the Company or any Restricted Subsidiary,
including any purchases of network or customer equipment; provided that such
--------
Currency Agreements do not increase the Indebtedness or other obligations of the
Company and its Restricted Subsidiaries outstanding other than as a result of
fluctuations in foreign currency exchange rates or by reason of fees,
indemnities and compensation payable thereunder;
(f) Indebtedness of the Company or any Restricted Subsidiary in
respect of performance bonds of the Company or any Restricted Subsidiary or
surety bonds provided by the Company or any Subsidiary incurred in the ordinary
course of business in connection with an ATM Network Business;
(g) Indebtedness consisting of guarantees, indemnities or obligations
in respect of purchase price adjustments in connection with the acquisition or
disposition of assets, including, without limitation, shares of Capital Stock;
(h) Indebtedness of the Company or any Restricted Subsidiary to the
extent it represents a replacement, renewal, refinancing or extension of
outstanding Indebtedness of the Company or of any Restricted Subsidiary incurred
or outstanding pursuant to clause (b) of this definition or the proviso of the
covenant "Limitation on Additional Indebtedness" (Section 1011); provided that
--------
(i) Indebtedness of the Company may not be replaced, renewed, refinanced or
extended to such extent under this clause (i) with Indebtedness of any
Subsidiary and (ii) any such replacement, renewal, refinancing or extension (x)
shall not result in a lower Average Life of such Indebtedness as compared with
the Indebtedness being replaced, renewed, refinanced or extended, (y) shall not
exceed the sum of the principal amount (or, if such Indebtedness provides for a
lesser amount to be due and payable upon a declaration of acceleration thereof,
an amount no greater than such
17
lesser amount) of the Indebtedness being replaced, renewed, refinanced or
extended plus the amount of accrued interest thereon and the amount of any
reasonably determined prepayment premium necessary to accomplish such
replacement, renewal, refinancing or extension and such reasonable fees and
expenses incurred in connection therewith, and (z) in the case of any
replacement, renewal, refinancing or extension by the Company of Subordinated
Indebtedness, such new Indebtedness is made subordinate to the Notes at least to
the same extent as the Indebtedness being replaced, renewed, refinanced or
extended;
(i) Indebtedness of the Company Incurred (including Acquired
Indebtedness) (i) in order to finance the acquisition of ATM Network Assets or
an ATM Network Business, provided that the aggregate principal amount of all
--------
such Indebtedness shall not exceed $50.0 million (or, to the extent not
denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof) at any time
outstanding;
(j) Indebtedness of any Restricted Subsidiary to finance the day to
day operations and working capital requirements of such Restricted Subsidiary,
provided that the aggregate principal amount of all such Indebtedness Incurred
- --------
by all Restricted Subsidiaries shall not exceed $5.0 million (or, to the extent
not denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof) at any time
outstanding;
(k) Indebtedness of the Company, to the extent the net proceeds
thereof are promptly (A) used to purchase Notes tendered in a Change of Control
Offer or Excess Proceeds Offer or (B) deposited to defease all of the Notes as
described in Article 12;
(l) Indebtedness of the Company or any Restricted Subsidiary under
Capitalized Lease Obligations relating to ATM Network Assets that is Incurred in
the ordinary course of business and which is secured by the ATM Network Assets
subject to such Capitalized Lease Obligations; and
(m) Indebtedness of the Company not to exceed, at any one time
outstanding, two times (i) the Net Cash Proceeds received by the Company after
the Issue Date from the issuance and sale of its Capital Stock (other than
Redeemable Capital Stock) to a Person that is not a Subsidiary, to the extent
such Net Cash Proceeds have not been used pursuant to clause (a)(3)(B), (b)(iii)
of Section 1012 to make a Restricted Payment; provided that such Indebtedness
does not mature prior to the Stated Maturity of the Notes and has an Average
Life longer than the Notes; and
(n) in addition to the items referred to in clauses (a) through (m)
above, Indebtedness of the Company having an aggregate principal amount not to
exceed $50 million (or, to the extent not denominated in U.S. Dollars, the U.S.
Dollar Equivalent thereof) at any time outstanding.
"Permitted Investments" means any of the following:
(a) Investments in Cash Equivalents;
(b) Investments in the Company or any Restricted Subsidiary;
(c) Investments of the Company or any Restricted Subsidiary if as a
result of such Investment a Person (i) becomes a Restricted Subsidiary or (ii)
is merged or consolidated with or into, or transfers or conveys all or
substantially all of its assets to, the Company or a Restricted Subsidiary as a
result of such Investment; provided, in each case, such Restricted Subsidiary is
--------
engaged in an ATM Network Business;
18
(d) Investments in assets used in the ordinary course of business;
(e) Investments in prepaid expenses; or
(f) Investments by the Company or any Restricted Subsidiary in any
entity the primary business of which is the conduct of the ATM Network Business,
provided that the sum of all such Investments does not exceed $10.0 million at
- --------
any time;
"Permitted Liens" means the following types of Liens:
(a) Liens existing as of the date of the Indenture;
(b) Liens securing Permitted Indebtedness;
(c) Liens on any property or assets of a Restricted Subsidiary
granted in favor of the Company or any Restricted Subsidiary;
(d) Liens securing the Notes;
(e) any interest or title of a lessor under any Capitalized Lease
Obligation so long as the Attributable Value secured by such Lien does not
exceed $10 million (or, to the extent not denominated in U.S. Dollars, the U.S.
Dollar Equivalent thereof);
(f) statutory Liens of landlords and carriers, warehouseman's,
mechanics, suppliers, materialmen's, repairmen's or other like Liens arising in
the ordinary course of business and with respect to amounts not yet delinquent
or being contested in good faith by appropriate proceeding, if a reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor;
(g) Liens for taxes, assessments, government charges or claims that
are being contested in good faith by appropriate proceedings promptly instituted
and diligently conducted and if a reserve or other appropriate provision, if
any, as shall be required in conformity with GAAP shall have been made therefor;
(h) Liens incurred or deposits made to secure the performance of
tenders, bids, leases, statutory obligations, surety and appeal bonds,
government contracts, performance bonds and other obligations of a like nature
incurred in the ordinary course of business (other than contracts for the
payment of money);
(i) easements, rights-of-way, restrictions and other similar charges
or encumbrances not interfering in any material respect with the business of the
Company or any Restricted Subsidiary incurred in the ordinary course of
business;
19
(j) Liens arising by reason of any judgment, decree or order of any
court so long as such Lien is adequately bonded and any appropriate legal
proceedings that may have been duly initiated for the review of such judgment,
decree or order shall not have been finally terminated or the period within
which such proceedings may be initiated shall not have expired;
(k) Liens securing Acquired Indebtedness created prior to (and not in
connection with or in contemplation of) the incurrence of such Indebtedness by
the Company or any Restricted Subsidiary; provided that such Lien does not
--------
extend to any property or assets of the Company or any Restricted Subsidiary
other than the assets acquired in connection with the incurrence of such
Acquired Indebtedness;
(l) Liens securing Interest Rate Agreements or Currency Agreements
permitted to be incurred pursuant to clause (d) and (e), respectively, of the
definition of "Permitted Indebtedness" or any collateral for the Indebtedness to
which such Interest Rate Agreements or Currency Agreements relate;
(m) Liens arising from Purchase Money Indebtedness, so long as such
Liens extend only to the assets constructed, expanded, installed, acquired or
improved with such Purchase Money Indebtedness and do not secure any
Indebtedness in an amount in excess of such Purchase Money Indebtedness;
(n) any extension, renewal or replacement, in whole or in part, of
any Lien described in the foregoing clauses (a) through (m); provided that any
--------
such extension, renewal or replacement shall be no more restrictive in any
material respect than the Lien so extended, renewed or replaced and shall not
extend to any additional property or assets;
(o) cash deposited by the Company or a Subsidiary of the Company with
banks that participate in the Company's ATM network in the ordinary course of
business to secure cash contributed by such banks for use in the Company's ATM
Network; and
(p) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance and
other types of social security.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 306 in exchange for a mutilated
security or in lieu of a lost, destroyed or stolen Note shall be deemed to
evidence the same debt as the mutilated, lost, destroyed or stolen Note.
20
"Preferred Stock" means, with respect to any Person, any and all
shares, interests, participation or other equivalents (however designated) of
such Person, preferred or preference stock whether now outstanding, or issued
after the Issue Date, and includes, without limitation, all classes and series
of preferred or preference stock of such Person.
"Purchase Money Indebtedness" means Indebtedness of the Company or
any Restricted Subsidiary incurred at any time within 180 days of, and for the
purpose of financing all or any part of the cost of, the construction,
expansion, installation, acquisition, improvement by the Company or any
Restricted Subsidiary of any ATM Network Asset; provided that the proceeds of
such Indebtedness are expended for such purposes within such 180-day period; and
provided, further, that the net cash proceeds from the issuance of such
Indebtedness does not exceed, as of the date of incurrence of such Indebtedness,
100 percent of the lesser of cost and the fair market value of such ATM Network
Asset.
"Qualified Capital Stock" of any person means any and all Capital
Stock of such person other than Redeemable Capital Stock.
"Redeemable Capital Stock" means any class or series of Capital Stock
that, either by its terms, by the terms of any note into which it is convertible
or exchangeable or by contract or otherwise, is, or upon the happening of an
event or passage of time would be, required to be redeemed prior to the final
Stated Maturity of the relevant Notes or is redeemable at the option of the
holder thereof at any time prior to such final Stated Maturity, or is
convertible into or exchangeable for debt notes at any time prior to such final
Stated Maturity.
"Redemption Date", when used with respect to any Note to be redeemed,
in whole or in part, means the date fixed for such redemption by or pursuant to
this Indenture.
"Redemption Price", when used with respect to any Note to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the . or . (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means
the chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, any vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above-designated
officers, and also means, with respect to a particular corporate trust
21
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Payments" has the meaning specified in Section 1012.
"Restricted Subsidiary" means the Existing Subsidiaries and any
Subsidiary that is not designated an Unrestricted Subsidiary by the Board of
Directors of the Company.
"S&P" means Standard and Poor's Ratings Services, a division of
McGraw-Hill, Inc., and its successors.
"Sale and Leaseback Transaction" means any transaction or series of
related transactions pursuant to which the Company or a Restricted Subsidiary
sells or transfers any property or asset in connection with the leasing, or the
resale against installment payments, of such property or asset to the seller or
transferor.
"Significant Subsidiary" means, at any date of determination, any
Restricted Subsidiary that, together with its subsidiaries, (i) for the most
recent fiscal year of the Company accounted for more than 5% of the consolidated
revenues of the Company and the Restricted Subsidiaries, (ii) as of the end of
such fiscal year, was the owner of more than 5% of the consolidated assets of
the Company and the Restricted Subsidiaries, in each case as set forth on the
most recently available consolidated financial statements of the Company and the
Restricted Subsidiaries for such fiscal year, or (iii) owns one or more material
licenses or concessions related to the operation of ATM Network Business.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity" means, when used with respect to any Note or any
installment of interest thereon, the date specified in such Note as the fixed
date on which the principal of such Note or such installment of interest is due
and payable, and, when used with respect to any other Indebtedness, means the
date specified in the instrument governing such Indebtedness as the fixed date
on which the principal of such Indebtedness, or any installment of interest
thereon, is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
expressly subordinated in right of payment to the Notes.
"Subsidiary" means any Person a majority of the equity ownership or
Voting Stock of which is at the time owned, directly or indirectly, by the
Company, by one or more other Subsidiaries of the Company or by the Company and
one or more other of its Subsidiaries.
22
"Tax" is defined to mean any tax, duty, levy, impost, assessment or
other governmental charge (including penalties, interest and any other
liabilities related thereto).
"Taxing Authority" is defined to mean any government or political
subdivision or territory or possession of any government or any authority or
agency therein or thereof having power to tax.
"Total Consolidated Indebtedness" means, at any date of
determination, an amount equal to the aggregate amount of all Indebtedness of
the Company and its Restricted Subsidiaries outstanding as of the date of
determination determined on a consolidated basis in accordance with GAAP.
"Total Consolidated Indebtedness to Annualized Pro Forma Consolidated
Operating Cash Flow Ratio" means, at any date of determination, the ratio of (i)
Total Consolidated Indebtedness to (ii) Annualized Pro Forma Consolidated
Operating Cash Flow for the latest full fiscal quarter for which consolidated
financial statements of the Company are available preceding the date of the
transaction giving rise to the need to calculate the Total Consolidated
Indebtedness to Annualized Consolidated Operating Cash Flow Ratio.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Unrestricted Subsidiary" means (a) any Subsidiary that at the time
of determination shall be an Unrestricted Subsidiary (as designated by the Board
of Directors of the Company, as provided below) and (b) any Subsidiary of an
Unrestricted Subsidiary. The Board of Directors of the Company may designate any
Subsidiary (including any newly acquired or newly formed Subsidiary) to be an
Unrestricted Subsidiary so long as (i) neither the Company nor any other
Subsidiary is directly or indirectly liable for or provides credit support for
or guarantees any Indebtedness of such Subsidiary, (ii) no default with respect
to any Indebtedness of such Subsidiary would permit (upon notice, lapse of time
or otherwise) any holder of any other Indebtedness of the Company or any other
Restricted Subsidiary to declare a default on such other Indebtedness or cause
the payment thereof to be accelerated or payable prior to its stated maturity,
(iii) any Investment in such Subsidiary made as result of designating such
Subsidiary an Unrestricted Subsidiary will not violate the provisions of the
"Limitation on Investments in Unrestricted Subsidiaries" covenant (Section
1020), (iv) neither the Company nor any other Restricted Subsidiary has a
contract, agreement, arrangement, understanding or obligation of any kind,
whether written or oral, with such Subsidiary other than those that might be
obtained at the time from persons who are not Affiliates of the Company and (v)
neither the Company nor any other Restricted Subsidiary has any obligation (1)
to subscribe for additional shares of Capital
23
Stock or other equity interest in such Subsidiary or (2) to maintain or preserve
such Subsidiary's financial condition or to cause such Subsidiary to achieve
certain levels of operating results. Any such designation by the Board of
Directors of the Company shall be evidenced to the Trustee by filing a board
resolution with the Trustee giving effect to such designation. The Board of
Directors of the Company may designate any Unrestricted Subsidiary as a
Restricted Subsidiary if immediately after giving effect to such designation,
there would be no Default or Event of Default under the Indenture and the
Company could incur $1.00 of additional Indebtedness (other than Permitted
Indebtedness) pursuant to the "Limitation on Additional Indebtedness" covenant
(Section 1011). In no event shall the Existing Subsidiaries be designated as
Unrestricted Subsidiaries.
"U.S. Dollar Equivalent" means, with respect to any monetary amount
in a currency other than the U.S. dollar, at any time for the determination
thereof, the amount of U.S. Dollars obtained by converting such foreign currency
involved in such computation into U.S. Dollars at the spot rate for the purchase
of U.S. Dollars with the applicable foreign currency as quoted by Reuters at
approximately 11:00 a.m. (New York time) on the date not more than two business
days prior to such determination. For purposes of determining whether any
Indebtedness can be incurred (including Permitted Indebtedness), any Investment
can be made and any transaction described in the "Limitation on Transactions
with Affiliates" covenant (Section 1014) can be undertaken (a "Tested
Transaction"), the U.S. Dollar Equivalent of such Indebtedness, Investment or
transaction described in the "Limitation or Transaction with Affiliates"
covenant (Section 1014) shall be determined on the date incurred, made or
undertaken and no subsequent change in the U.S. Dollar Equivalent shall cause
such Tested Transaction to have been incurred, made or undertaken in violation
of the Indenture.
"U.S. Paying Agent" has the meaning set forth in Section 315.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means, with respect to any Person, any class or
classes of Capital Stock pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such Person (irrespective of whether
or not, at the time, stock of any other class or classes shall have, or might
have, voting power by reason of the happening of any contingency).
"Wholly Owned" means, with respect to any Subsidiary, such Subsidiary
if all the outstanding Capital Stock of such Subsidiary (other than any
directors' qualifying shares, shares owned by foreign nationals to the extent
mandated by applicable law and shares issued, sold or granted pursuant to a
Permitted Capital Stock Sale) is owned directly by the Company or by the Company
and one or more Wholly Owned Restricted Subsidiaries.
24
SECTION 102. Compliance Certificates and Opinions.
------------------------------------
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee an Officers' Certificate stating that all conditions precedent, if
any, provided for in this Indenture (including any covenant compliance with
which constitutes a condition precedent) relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1008(a)) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable 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, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
--------------------------------------
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his
25
certificate or opinion is based are erroneous. Any such certificate or Opinion
of Counsel may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information with respect to such factual matters is in
the possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner that the Trustee deems sufficient.
(c) The principal amount and serial numbers of Notes held by any
Person, and the date of holding the same, shall be proved by the Note Register.
(d) If the Company shall solicit from the Holders of Notes any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a Board Resolution, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section
316(c), such record date shall be the record date specified in
26
or pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in connection
therewith and not later than the date such solicitation is completed. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be
deemed to be Holders for the purposes of determining whether Holders of the
requisite proportion of Outstanding Notes have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Notes shall be computed as of
such record date; provided that no such authorization, agreement or consent by
--------
the Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder of
the same Note and the Holder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such Note.
SECTION 105. Notices, etc., to Trustee, Company
----------------------------------
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this Indenture, or at any other address previously
furnished in writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver.
-------------------------
Where this Indenture provides for notice of any event to Holders by
the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at his address as it
appears in the Note Register, not later than the latest date, and not earlier
than the earliest date, prescribed for the giving of such notice. In any case
where notice to Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall
affect the
27
sufficiency of such notice with respect to other Holders. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice. Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause, it shall be impracticable to mail
notice of any event to Holders when such notice is required to be given pursuant
to any provision of this Indenture, then any manner of giving such notice as
shall be satisfactory to the Trustee shall be deemed to be a sufficient giving
of such notice for every purpose hereunder.
SECTION 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
-------------------
In case any provision in this Indenture or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Notes, express or implied, shall
give to any Person, other than the parties hereto, the Holders, any Paying Agent
and any Note Registrar and their successors hereunder, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing Law.
-------------
This Indenture and the Notes shall be governed by and construed in
accordance with the law of the State of New York. This Indenture is subject to
the provisions of the Trust Indenture Act that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
28
SECTION 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Note shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Notes) payment
of principal (or premium, if any) or interest need not be made on such date,
but may be made on the next succeeding Business Day with the same force and
effect as if made on the Interest Payment Date, Redemption Date or at the Stated
Maturity or Maturity; provided that no interest shall accrue for the period from
--------
and after such Interest Payment Date, Redemption Date, Stated Maturity or
Maturity, as the case may be.
29
ARTICLE TWO
NOTE FORMS
SECTION 201. Forms Generally.
---------------
The Notes and the Trustee's certificate of authentication shall be in
substantially the forms set forth in this Article, with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture, and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Notes, as
evidenced by their execution of the Notes. Any portion of the text of any Note
may be set forth on the reverse thereof, with an appropriate reference thereto
on the face of the Note.
The definitive Notes shall be printed, lithographed or engraved on
steel-engraved borders or may be produced in any other manner, all as determined
by the officers of the Company executing such Notes, as evidenced by their
execution of such Notes.
SECTION 202. Form of Face of DTC Global Note.
-------------------------------
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF DM 1,000 PRINCIPAL AMOUNT AT
MATURITY OF __ % SENIOR DISCOUNT NOTES DUE 2006 OF EURONET SERVICES INC. (THE
"NOTES") AND __ WARRANTS (THE "WARRANTS") EACH INITIALLY ENTITLING THE HOLDER
THEREOF TO PURCHASE ONE SHARE OF COMMON STOCK, PAR VALUE $0.02 PER SHARE, OF
EURONET SERVICES INC. THE NOTES EVIDENCED BY THIS CERTIFICATE MAY BE TRANSFERRED
AND EXCHANGED SEPARATELY FROM OR TOGETHER WITH THE WARRANTS AFTER THE DATE OF
ISSUANCE.
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL IN AS MUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EURONET SERVICES INC.
. % Senior Discount Notes due 2006
[CUSIP]
[CINS] [ISIN]
[WKN]
30
No._____ DM__________
The following information is supplied for purposes of Sections 1273 and
1275 of the Internal Revenue Code:
Issue Date:_______________ Original issue discount under
Section 1273 of the Internal Revenue
Code (for each DM 1,000 principal
amount): DM__________
Issue Price (for each DM 1,000 Yield to Maturity: _____%
principal amount): DM__________
Method used to determine yield to maturity Original issue discount for
for [short] accrual period of [issue [short] accrual period of [issue
date] to date] to [date]: exact method [date] (for each DM 1,000 principal
amount): DM__________
EURONET SERVICES INC., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum of __________
Deutsche Marks on ., at the office or agency of the Company referred to below,
and to pay interest thereon on ., and semi-annually thereafter, on . and . in
each year, from [date and year original issue discount fully accretes], or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of _____% per annum, until the principal hereof is
paid or duly provided for, and (to the extent lawful) to pay on demand interest
on any overdue interest at the rate of ____% per annum from the date on which
such overdue interest becomes payable to the date payment of such interest has
been made or duly provided for. The principal on this Note shall not accrue
interest until [date and year original issue discount fully accretes], except in
the case of a default in payment of the amount due at Maturity, in which case,
the amount then due on this Note shall bear interest at the rate of _____% per
annum from the date of such default in payment, as provided in the Indenture.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [date] or [date] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and such defaulted interest, and (to the extent lawful)
interest on such defaulted interest at _____% per annum, may be paid to the
Person in whose name this Note (or one or more Predecessor Notes) is registered
at the close of business on a Special Record Date for the payment of such
Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to
Holders of Notes not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not
31
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture. Payment of the principal of (and premium,
if any) and interest on this Note will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
-------- -------
payment of interest may be made at the option of the Company (i) by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Note Register or (ii) by transfer to an account maintained by the payee
located in the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: EURONET SERVICES INC.
By
--------------------------------------
Title:
Attest:
- --------------------------
Authorized Signature
SECTION 203. Form of Face of DBC Global Note.
-------------------------------
THE NOTES EVIDENCED BY THIS CERTIFICATE ARE INITIALLY ISSUED AS PART
OF AN ISSUANCE OF UNITS, EACH OF WHICH CONSISTS OF DM 1,000 PRINCIPAL AMOUNT AT
MATURITY OF ___% SENIOR DISCOUNT NOTES DUE 2006 OF EURONET SERVICES INC. (THE
"NOTES") AND ___ WARRANTS (THE "WARRANTS") EACH INITIALLY ENTITLING THE HOLDER
THEREOF TO PURCHASE ONE SHARE OF COMMON STOCK, PAR VALUE $0.02 PER SHARE OF
EURONET SERVICES INC. THE NOTES EVIDENCED BY THIS CERTIFICATE MAY BE
TRANSFERRED AND EXCHANGED SEPARATELY FROM OR TOGETHER WITH THE WARRANTS AFTER
THE DATE OF ISSUANCE.
THIS GLOBAL CERTIFICATE HAS BEEN CREATED IN ORDER TO BE HELD IN CUSTODY
BY DEUTSCHE BORSE CLEARING AG ("DBC") AND TO SERVE AS THE BASIS FOR THE DELIVERY
AND TRANSFER OF NOTES TO BE HELD IN THE DBC DEPOSITARY AND CLEARING SYSTEM
THROUGHOUT THE LIFE OF THE SECURITIES.
EURONET SERVICES INC.
32
.% Senior Discount Notes due 2006
[CUSIP]
[CINS] [ISIN]
[WKN]
No._____ DM__________
The following information is supplied for purposes of Sections 1273
and 1275 of the Internal Revenue Code:
Issue Date: Original issue discount under Section 1273 of
the Internal Revenue Code (for each DM 1,000
principal amount): DM__________
Issue Price (for each DM 1,000 Yield to Maturity: _____%
principal amount): DM__________
Method used to determine yield to maturity Original issue discount for
for [short] accrual period of [issue [short] accrual period of
date] to [date]: exact method [issue date] to [date] (for
each DM 1,000 principal
amount): DM__________
EURONET SERVICES INC., a Delaware corporation (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
____________________, or registered assigns, the principal sum of __________
Deutsche Marks on ., at the office or agency of the Company referred to below,
and to pay interest thereon on ., and semi-annually thereafter, on . and . in
each year, from [date and year original issue discount fully accretes], or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, at the rate of _____% per annum, until the principal hereof is
paid or duly provided for, and (to the extent lawful) to pay on demand interest
on any overdue interest at the rate of ____% per annum from the date on which
such overdue interest becomes payable to the date payment of such interest has
been made or duly provided for. The principal on this Note shall not accrue
interest until [date and year original issue discount fully accretes], except in
the case of a default in payment of the amount due at Maturity, in which case,
the amount then due on this Note shall bear interest at the rate of _____% per
annum from the date of such default in payment, as provided in the Indenture.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in such Indenture, be paid to the Person
in whose name this Note (or one or more Predecessor Notes) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the [date] or [date] (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for shall forthwith cease to be payable to the Holder on such
Regular Record Date, and such defaulted interest, and (to the extent
33
lawful) interest on such defaulted interest at _____% per annum, may be paid to
the Person in whose name this Note (or one or more Predecessor Notes) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Notes not less than 10 days prior to such Special Record
Date, or may be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Notes may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of (and premium, if
any) and interest on this Note will be made at the office or agency of the
Company maintained for that purpose in The City of New York, or at such other
office or agency of the Company as may be maintained for such purpose, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; provided, however, that
-------- -------
payment of interest may be made at the option of the Company (i) by check mailed
to the address of the Person entitled thereto as such address shall appear on
the Note Register or (ii) by transfer to an account maintained by the payee
located in the United States.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been duly executed
by the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: EURONET SERVICES INC.
By
--------------------------------------
Title:
Attest:
- ----------------------------
Authorized Signature
34
SECTION 204. Form of Reverse of Note.
-----------------------
This Note is one of a duly authorized issue of notes of the Company
designated as its .% Senior Discount Notes due 2006 (herein called the "Notes"),
limited (except as otherwise provided in the Indenture referred to below) in
aggregate principal amount to DM . million at maturity, which may be issued
under an indenture (herein called the "Indenture") dated as of ., 1998, between
the Company and State Street Bank and Trust Company, trustee (herein called the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties,
obligations and immunities thereunder of the Company, the Trustee and the
Holders of the Notes, and of the terms upon which the Notes are, and are to be,
authenticated and delivered.
The Notes are redeemable, at the option of the Company, in whole at any
time or from time to time in part, on or after ., 2002, on not less than 30 nor
more than 60 days prior notice at the redemption prices (expressed as
percentages of principal amount at maturity) set forth below, together with
accrued and unpaid interest, if any, to the Redemption Date, if redeemed during
the 12-month period beginning on . of the years indicated below (subject to the
right of holders of record on relevant record dates to receive interest due on a
relevant Interest Payment Date):
Year Redemption Price
- ---- ----------------
2002 ................................................ %
2003 ................................................ %
2004 and thereafter .................................. 100.00%
At any time or from time to time prior to ., 2001 the Company may
redeem within 60 days of one or more Equity Offerings up to 33 1/3% of the
aggregate principal amount at maturity of the originally issued Notes with all
or a portion of the net proceeds of such offering, at a redemption price equal
to .% of the Accreted Value thereof as of the Redemption Date, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of holders of record on relevant record dates to receive interest due on
relevant Interest Payment Dates); provided that immediately after giving effect
--------
to any such redemption, at least 66 2/3% aggregate principal amount at maturity
of the originally issued Notes remains outstanding.
Upon the occurrence of a Change in Control, the Holder of this Note may
require the Company, subject to certain limitations provided in the Indenture,
to repurchase this Note, in whole or in part and in integral multiples of DM
1,000 principal amount at maturity, at a purchase price of 101% of the Accreted
Value thereof, together with accrued
35
and unpaid interest, if any, to the Redemption Date, subject to the right of
holders of record on relevant record dates to receive interest due on relevant
Interest Payment Dates.
Upon the occurrence of an Asset Sale, the Company may be obligated to
make an offer to purchase all or a portion of the outstanding Notes at a price
of 100% of the Accreted Value thereof, together with accrued and unpaid
interest, if any, to the date of purchase (subject to the right of holders of
record on relevant record dates to receive interest due on relevant Interest
Payment Dates).
In the case of any redemption of Notes, interest installments whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Notes, or one or more Predecessor Notes, of record at the close
of business on the relevant Record Date referred to on the face hereof. Notes
(or portions thereof) for whose redemption and payment provision is made in
accordance with the Indenture shall cease to bear interest from and after the
Redemption Date.
In the event of redemption of this Note in part only, a new Note or
Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the Accreted
Value of, premium, if any, and accrued interest on all Outstanding Notes may be
declared to be due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness of the Company on this Note and (b) certain restrictive
covenants and the related Defaults and Events of Default, upon compliance by the
Company with certain conditions set forth therein, which provisions apply to
this Note.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders under the Indenture at any time by the
Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time outstanding. The Indenture
also contains provisions permitting the Holders of specified percentages in
aggregate principal amount of the Notes at the time outstanding, on behalf of
the Holders of all the Notes, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by or on behalf of the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange therefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and
36
unconditional, to pay the principal of (and premium, if any, on) and interest on
this Note at the times, place, and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable on the Note Register of the
Company, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for such purpose in The City of New York,
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Registrar duly executed by, the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes, of authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of DM 1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes of a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to the time of due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Company,
the Trustee nor any agent shall be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
37
SECTION 205. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
The Trustee's certificate of authentication shall be in substantially
the following form:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Dated: ____________________
This is one of the Notes referred to in the within-mentioned Indenture.
STATE STREET BANK AND TRUST
COMPANY, as Trustee
By
--------------------------------------
Authorized Officer
38
ARTICLE THREE
THE NOTES
Section 301. Title and Terms.
---------------
The aggregate principal amount of Notes which may be authenticated and
delivered under this Indenture is limited to DM . million, except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Section 303, 304, 306, 311, 906,
1010, 1017 or 1108.
The Notes are senior, unsecured obligations of the Company and shall be
known and designated as the ".% Senior Discount Notes due 2006" of the Company.
Their Stated Maturity shall be ., and they shall bear interest at the rate of .%
per annum (computed on a semiannual bond equivalent basis) calculated from .,
1998. Cash interest on the Notes will not accrue prior to ., 2002. Commencing
., 2002, cash interest will be payable on the Notes semiannually on . and . of
each year. The issue price of the Notes (for purposes of calculating Accreted
Value) will be in DM . per DM 1,000 principal amount at maturity of the Notes.
The principal of, premium, if any, and interest on the Notes shall be
payable at the office or agency of the Company maintained for such purpose in
the City of New York, or at such other office or agency of the Company as may be
maintained for such purpose; provided, however, that at the option of the
-------- -------
Company interest may be paid by check mailed to addresses of the Persons
entitled thereto as such addresses shall appear on the Note Register.
The Notes shall be redeemable as provided in Article Eleven.
SECTION 302. Denominations.
-------------
The Notes shall be issuable only in registered form without coupons and
only in denominations of DM 1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
The Notes shall be executed on behalf of the Company by its Chairman,
its President or a Vice President, under its corporate seal reproduced thereon
and attested by an officer of the Company. The signature of any of these
officers on the Notes may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Notes.
Notes bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that
39
such individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Notes or did not hold such offices at the
date of such Notes.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Notes executed by the Company to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Notes, and the Trustee in accordance with such Company
Order shall authenticate and deliver such Notes.
Each Note shall be dated the date of its authentication.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Note shall be conclusive evidence, and the only evidence,
that such Note has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Indenture.
In case the Company, pursuant to Article Eight, shall be consolidated
or merged with or into any other Person or shall convey, transfer, lease or
otherwise dispose of its properties and assets substantially as an entirety to
any Person, and the successor Person resulting from such consolidation, or
surviving such merger, or into which the Company shall have been merged, or the
Person which shall have received a conveyance, transfer, lease or other
disposition as aforesaid, shall have executed an indenture supplemental hereto
with the Trustee pursuant to Article Nine, any of the Notes authenticated or
delivered prior to such consolidation, merger, conveyance, transfer, lease or
other disposition may, from time to time, at the request of the successor
Person, be exchanged for other Notes executed in the name of the successor
Person with such changes in phraseology and form as may be appropriate, but
otherwise in substance of like tenor as the Notes surrendered for such exchange
and of like principal amount; and the Trustee, upon Company Request of the
successor Person, shall authenticate and deliver Notes as specified in such
request for the purpose of such exchange. If Notes shall at any time be
authenticated and delivered in any new name of a successor Person pursuant to
this Section in exchange or substitution for or upon registration of transfer of
any Notes, such successor Person, at the option of the Holders but without
expense to them, shall provide for the exchange of all Notes at the time
Outstanding for Notes authenticated and delivered in such new name.
SECTION 304. Temporary Notes.
---------------
Pending the preparation of definitive Notes, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Notes which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Notes in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as
40
the officers executing such Notes may determine, as conclusively evidenced by
their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes
to be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company
designated for such purpose pursuant to Section 1002, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary Notes, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Notes of authorized
denominations. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
SECTION 305. Form of Notes.
-------------
Notes initially offered and sold to U.S. investors shall be issued in
the form of one or more permanent global certificates in registered form (the
"DTC Global Note"), deposited with the Trustee, as custodian for DTC (in such
capacity, the "Custodian"), duly executed by the Company and authenticated by
the Trustee as provided above. The face of the DTC Global Note shall be
substantially in the form of Section 202 and shall bear the legend included
therein.
Notes sold outside of the United States to non-U.S. persons shall be
issued in the form of one permanent global certificate in bearer form (the "DBC
Global Note"), deposited with Deutsche Borse Clearing, Frankfurt am Main ("DBC")
duly executed by the Company and authenticated by the Trustee as provided above.
The face of the DBC Global Note shall be substantially in the form of Section
203 and shall bear the legend included therein.
The aggregate principal amount of each of the DTC Global Note and the
DBC Global Note (together, the "Global Notes") may from time to time be
increased or decreased by adjustments made on the records of the Registrar as
hereinafter provided. Every Global Note shall have affixed to its reverse a
schedule for the purpose of recording such adjustments. Together, the Notes
represented by the DBC Global Note and the DTC Global Note will be equal to the
aggregate principal amount of the Notes outstanding at any time.
The Global Notes shall be typed, printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Notes may
be listed, all as determined by the officers executing such Notes, as evidenced
by their execution of such Notes.
41
SECTION 306. Mutilated, Destroyed, Lost and Stolen Notes.
-------------------------------------------
If (i) any mutilated Note is surrendered to the Trustee, or (ii) the
Company and the Trustee receive evidence to their satisfaction of the
destruction, loss or theft of any Note, and there is delivered to the Company
and the Trustee such note or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Company or the Trustee
that such Note has been acquired by a bona fide purchaser, the Company shall
execute and upon Company Order the Trustee shall authenticate and deliver, in
exchange for any such mutilated Note or in lieu of any such destroyed, lost or
stolen Note, a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Note, pay such Note.
Upon the issuance of any new Note under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Note issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Note shall be at any time enforceable by anyone, and
shall be entitled to all benefits of this Indenture equally and proportionately
with any and all other Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 307. Payment of Interest; Interest Rights Preserved.
----------------------------------------------
Interest on any Note which is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name such Note (or one or more Predecessor Notes) is registered at the close of
business on the Regular Record Date for such interest at the office or agency of
the Company maintained for such purpose pursuant to Section 1002; provided,
--------
however, that each installment of interest may at the Company's option be paid
- -------
by (i) mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 308, to the address of such
Person as it appears in the Note Register or (ii) transfer to an account located
in the United States maintained by the payee.
Any interest on any Note which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date shall forthwith cease to be
payable to the Holder
42
on the Regular Record Date by virtue of having been such Holder, and such
defaulted interest and (to the extent lawful) interest on such defaulted
interest at the rate borne by the Notes (such defaulted interest and interest
thereon herein collectively called "Defaulted Interest") shall be paid by the
Company, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner (each such date to be called a "Special Record Date"). The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Note and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee an
amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory
to the Trustee for such deposit prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days and not less
than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date, and in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given in the manner provided for in Section 106,
not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been so given, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective Predecessor Notes)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice
as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Note
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Note shall carry the rights to interest accrued and
unpaid, and to accrue, which were carried by such other Note.
43
SECTION 308. Persons Deemed Owners.
---------------------
Prior to the due presentment of a Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Note is registered as the owner of such Note for
the purpose of receiving payment of principal of, premium, if any, and (subject
to Sections 307 and 311) interest on such Note and for all other purposes
whatsoever, whether or not such Note be overdue, and none of the Company, the
Trustee or any agent of the Company or the Trustee shall be affected by notice
to the contrary.
SECTION 309. Cancellation.
------------
All Notes surrendered for payment, redemption, registration of transfer
or exchange shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee and shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Notes previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Notes previously authenticated
hereunder which the Company has not issued and sold, and all Notes so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire any
of the Notes, however, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes unless and until the
same are surrendered to the Trustee for cancellation. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided in
this Section, except as expressly permitted by this Indenture. All cancelled
Notes held by the Trustee shall be disposed of by the Trustee in accordance with
its customary procedures and certification of their disposal delivered to the
Company unless by Company Order the Company shall direct that cancelled Notes be
returned to it.
SECTION 310. Computation of Interest.
-----------------------
Interest on the Notes shall be computed on the basis of a 360-day year
of twelve 30-day months.
SECTION 311. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
Upon surrender for registration of transfer of any Note at the office
or agency of the Company designated pursuant to Section 1002, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized
denomination or denominations of a like aggregate principal amount.
At the option of the Holder, Notes may be exchanged for other Notes of
any authorized denomination and of a like aggregate principal amount, upon
surrender of the Notes to be exchanged at such office or agency. Whenever any
Notes are so surrendered
44
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Notes which the Holder making the exchange is entitled to receive.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
Every Note presented or surrendered for registration of transfer or for
exchange shall (if so required by the Company or the Registrar) 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.
No service charge shall be made for any registration of transfer or
exchange or redemption of Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 304, 906, 1010, 1017 or 1108 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Note during a period beginning at the opening of business 15
days before the selection of Notes to be redeemed under Section 1104 and ending
at the close of business on the day of such mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Note so selected
for redemption in whole or in part, except the unredeemed portion of any Note
being redeemed in part.
SECTION 312. Transfer Mechanics.
-------------------
Except as otherwise provided in this Section 312, transfers of Global
Notes shall be limited to transfers of book-entry interests between and within
DBC and DTC except as provided below. Transfers of interests in the Global
Notes between DBC Accountholders, on the one hand, and DTC Participants, on the
other hand, shall be effected by an increase or a reduction in the aggregate
amount of Notes represented by the DBC Global Note and the corresponding
reduction or increase in the aggregate amount of Notes represented by the DTC
Global Note. Any beneficial interest in one of the Global Notes that is
transferred to a person who takes delivery in the form of an interest in another
Global Note will, upon transfer, cease to be an interest in such first Global
Note and become an interest in the other Global Note and, accordingly, will
thereafter be subject to all transfer restrictions, if any, and other procedures
applicable to beneficial interests in such other Global Note for as long as it
remains such an interest.
Transfers of interests in the DBC Global Note to parties who will hold
the interests through the DBC Global Note and transfers of interests in the DTC
Global Note to parties who will hold the interests through the DTC Global Note
will be effected in the
45
ordinary way in accordance with the respective rules and operating procedures of
DBC, DTC, Euroclear or Cedel Bank, as the case may be.
Notwithstanding any other provisions of this Section 312, unless and
until it is exchanged in whole or in part for Notes in definitive registered
form, a DTC Global Note representing all or a portion of the Notes may not be
transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC
to DTC or another nominee of DTC or by DTC or any such nominee to a successor
depositary or a nominee of such successor depositary.
If DTC notifies the Company that it is unwilling or unable to continue
as depositary for the DTC Global Note or if at any time DTC shall no longer be
eligible under the next sentence of this paragraph, the Company shall appoint a
successor depositary with respect to the Notes. Each depositary appointed
pursuant to this Section 312 must, at the time of its appointment and at all
times while it serves as depositary, be a clearing agency registered under the
Exchange Act and any other applicable statute or regulation.
If (i) DTC notifies the Company that it is unwilling or unable to
continue as depositary for the DTC Global Note or if at any time DTC shall no
longer be eligible to serve as depositary and a successor depositary for the
Notes is not appointed by the Company within 60 days after the Company receives
such notice or becomes aware of such ineligibility or (ii) an Event of Default
has occurred and is continuing, then the Company will execute, and the Trustee,
upon receipt of an authentication order, will authenticate and deliver, Notes in
definitive registered form in any authorized denominations, in an aggregate
principal amount at maturity equal to the principal amount at maturity of the
Global Note representing such Notes in exchange for the DTC Global Note.
The Company may at any time and in its sole discretion determine that
the registered Notes shall no longer be represented by a DTC Global Note. In
such event the Company will execute, and the Trustee will, upon receipt of an
authentication order, authenticate and deliver, Notes in definitive registered
form in any authorized denominations, in an aggregate principal amount at
maturity equal to the principal amount at maturity of the DTC Global Note
representing such Notes in exchange for such DTC Global Note.
Upon the exchange of the DTC Global Note for Notes in definitive
registered form without coupons, in authorized denominations, the DTC Global
Note shall be cancelled by the Trustee. Notes in definitive registered form
issued in exchange for the DTC Global Note pursuant to this Section 312 shall be
registered in such names and in such authorized denominations as DTC, pursuant
to instructions from its direct or indirect participants or otherwise, shall
instruct the Trustee. The Trustee shall deliver such Notes to or as directed by
the Persons in whose names such Notes are so registered.
46
All Notes issued upon any transfer or exchange of Notes shall be valid
obligations of the Company, evidencing the same debt, and entitled to the same
benefits under this Indenture, as the Notes surrendered upon such transfer or
exchange.
SECTION 313. Registrar and Paying Agent.
--------------------------
The Company shall maintain an office or agency in New York City where
Notes may be presented for registration of transfer or for exchange (the
"Registrar"), an office or agency in New York City and in Frankfurt am Main,
Germany where Notes may be presented for payment (respectively, the "U.S. Paying
Agent" and the "DM Paying Agent") and an office or agency in New York City where
notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. In addition, so long as any Notes are listed on the
Luxembourg Stock Exchange, the Company shall maintain an office in Luxembourg
(the "Luxembourg Paying Agent") where Notes may be presented for payment. The
Company shall cause the Registrar to keep a register of the Notes and of their
transfer and exchange (the "Note Register"). The Note Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Company may have one or more co-Registrars and one
or more additional Paying Agents.
The Company shall enter into an appropriate agency agreement with any
Agent not a party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such Agent. The Company shall give
prompt written notice to the Trustee of the name and address of any such Agent
and any change in the address of such Agent. If the Company fails to maintain a
Registrar, Paying Agent and/or agent for service of notices and demands, the
Trustee shall act as such Registrar, Paying Agent and/or agent for service of
notices and demands. The Company may remove any Agent upon written notice to
such Agent and the Trustee; provided that no such removal shall become effective
until (i) the acceptance of an appointment by a successor Agent to such Agent as
evidenced by an appropriate agency agreement entered into by the Company and
such successor Agent and delivered to the Trustee or (ii) notification to the
Trustee that the Trustee shall serve as such Agent until the appointment of a
successor Agent in accordance with clause (i) of this proviso. The Company, any
Subsidiary of the Company, or any Affiliate of any of them may act as a Paying
Agent, Registrar or co-Registrar, and/or agent for service of notice and
demands.
The Company initially appoints the Trustee as Registrar, U.S. Paying
Agent and Bankers Trust International PLC, Frankfurt Branch, Westend Carree,
Grueneburgweg 16, D-60322, Frankfurt/Main, authenticating agent and agent for
service of notice and demands. The Company also appoints [State Street Bank and
Trust Company, German branch] as DM Paying Agent and [State Street Bank and
Trust Company, Luxembourg branch] as Luxembourg Paying Agent. If, at any time,
the Trustee is not the Registrar, the Company shall furnish, or cause to be
furnished, to the Trustee at least seven Business Days before each Interest
Payment Date and at such other times as the Trustee may reasonably request, the
names and addresses of the Holders as they appear in the Note Register. At the
option of the Company, payment of
47
interest may be made by check mailed to the address of the Holders as such
address appears in the Note Register.
SECTION 314. Holder to Be Treated as Owner.
-----------------------------
(a) The Company, the Trustee, any Paying Agent, any Registrar and any
agent of any of the foregoing may deem and treat each Holder of a Note as the
absolute owner of such Note for the purpose of receiving payment of or on
account of the principal of and, subject to the provisions of this Indenture,
interest on such Note and for all other purposes. Neither the Company, the
Trustee, any Paying Agent, any Registrar nor any agent of the foregoing shall be
affected by any notice to the contrary. All such payments so made to any such
Person, or upon his order, shall be valid, and, to the extent of the sum or sums
so paid, effectual to satisfy and discharge the liability for moneys payable
upon any Note.
(b) Members of, or participants in, DTC ("DTC Participants") shall have
no rights under this Agreement with respect to the DTC Global Note held on their
behalf by DTC, or the Custodian as DTC's custodian, or under the DTC Global
Note, and DTC may be treated by the Company, the Agents and any agent of the
Company or the Agents as the absolute owner of the DTC Global Note for all
purposes whatsoever. Notwithstanding the foregoing, DTC, as a Holder, may
appoint agents and otherwise authorize DTC Participants to give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action which a Holder is entitled to give or take under this Indenture,
including the right to sue for payment of principal or interest pursuant to
Section 316(b) of the TIA. Except as provided in Section 311, owners of
beneficial interests in the DTC Global Note will not be authorized to have Notes
registered in their names, and will not receive and will not be entitled to
receive physical delivery of definitive certificates representing individual
Notes. Beneficial interests in the DTC Global Note may be held only through DTC
Participants.
(c) DBC accountholders ("DBC Accountholders") shall have no rights
under this Agreement with respect to the DBC Global Note held on their behalf by
DBC or under the DBC Global Note and DBC may be treated by the Company, the
Agents and any agent of the Company or the Agents as the absolute owner of the
DBC Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Agents or any agent of the Company
or the Agents, from giving effect to any written certification, proxy or other
authorization furnished by DBC or impair, as between DBC and the DBC
Accountholders, the operation of customary practices governing the exercise of
the rights of an owner of a co-ownership interest in the DBC Global Note. The
Holder of the DBC Global Note may grant proxies and otherwise authorize any
person, including DBC Accountholders and persons that may hold interests through
DBC Accountholders, to take any action which a Holder is entitled to take under
this Indenture or the Notes. Except as provided in Section 312, owners of co-
ownership interests in the DBC Global Note will not be entitled to have Notes
registered in their names, and will not receive and will not be entitled to
receive physical delivery of definitive certificates representing
48
individual Notes. Co-ownership interests in the DBC Global Note may be held
only by or through DBC Accountholders.
SECTION 315. Paying Agent to Hold Money in Trust.
-----------------------------------
The Company shall require each Paying Agent other than the Trustee to
agree in writing that such Paying Agent shall hold in trust for the benefit of
the Holders or the Trustee all money held by the Paying Agent for the payment of
principal of, premium, if any, and interest on the Notes (whether such money has
been paid to it by the Company or any other obligor on the Notes), and such
Paying Agent shall promptly notify the Trustee of any default by the Company (or
any other obligor on the Notes) in making any such payment. The Company at any
time may require a Paying Agent to pay all money held by it to the Trustee and
account for any funds disbursed, and the Trustee may at any time during the
continuance of any payment default, upon written request to a Paying Agent,
require such Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed. Upon doing so, the Paying Agent shall have no
further liability for the money so paid over to the Trustee. If the Company or
any Subsidiary of the Company or any Affiliate of any of them acts as Paying
Agent, it will, on or before each due date of any principal of, premium, if any,
or interest on the Notes, segregate and hold in a separate trust fund for the
benefit of the Holders a sum of money sufficient to pay such principal, premium,
if any, or interest so becoming due until such sum of money shall be paid to
such Holders or otherwise disposed of as provided in this Indenture, and will
promptly notify the Trustee of its action or failure to act.
SECTION 316. Payment.
-------
Payment of principal of, premium, if any, and interest on the Notes
shall be made by the Company in Deutsche Marks through the DM Paying Agent.
Payment of principal of, premium, if any, and interest on the Notes represented
by the DBC Global Note will be made by the DM Paying Agent in Deutsche Marks
directly to DBC. Payment of principal of, premium, if any, and interest on the
Notes represented by the DTC Global Note will be made by the DM Paying Agent in
Deutsche Marks to the U.S. Paying Agent which in turn shall make payments in
U.S. Dollars and Deutsche Marks to the registered holder of the DTC Global Note
as provided below.
Any person holding beneficial interests in the DTC Global Note (a "DTC
Note Holder") shall receive payments of principal and interest in respect of the
Notes in U.S. Dollars, unless such DTC Note Holder elects to receive payment in
Deutsche Marks in accordance with the procedures set forth below. To the extent
that the DTC Note Holders have not made such election in respect of any payment
of principal or interest, the aggregate amount designated for all such DTC Note
Holders in respect of such payment (the "DM Conversion Amount") shall be
deposited by the Company with the U.S. Paying Agent for credit
to the U.S. Paying Agent's account and shall be converted by the U.S. Paying
Agent into U.S. Dollars and paid by wire transfer of same-day funds to the
registered holder of the DTC Global Note for payment through DTC's settlement
system to the relevant DTC Participants. All costs of any such conversion and
wire transfer shall be
49
deducted from such payments. Any such conversion shall be based on .'s bid
quotation, at or prior to 11:00 a.m. New York time, on the second New York
Business Day (as defined below) preceding the relevant payment date, for the
purchase by the U.S. Payment Agent of the DM Conversion Amount of U.S. Dollars
for settlement on such payment date. If such bid quotation is not available for
any reason, the U.S. Paying Agent shall endeavor to obtain a bid quotation from
a leading foreign exchange bank in New York City selected by the U.S. Paying
Agent for such purpose. If no bid quotation from a leading foreign exchange bank
is available, payment of the DM Conversion Amount will be made in Deutsche Marks
to the account or accounts specified by DTC to the U.S. Paying Agent.
A DTC Note Holder may elect to receive payment of principal and
interest with respect to the Notes in Deutsche Marks by causing DTC through the
relevant DTC Participant to notify the U.S. Paying Agent by the time specified
below of (i) such DTC Note Holder's election to receive all or a portion of such
payment in Deutsche Marks and (ii) wire transfer instructions to a Deutsche Mark
account in the Federal Republic of Germany. Such election in respect of any
payment must be made by the DTC Note Holder at the time and in the manner
required by the DTC procedures applicable from time to time and shall, in
accordance with such procedures, be irrevocable and shall relate only to such
payment. DTC notification of such election, wire transfer instructions and the
amount payable in Deutsche Marks must be received by the U.S. Paying Agent prior
to 5:00 p.m. New York time on the fifth New York Business Day following the
relevant Record Date in the case of interest, and prior to 5:00 p.m. New York
time on the fifth New York Business Day prior to the payment date for the
payment of principal. Any payments in Deutsche Marks shall be made by wire
transfer of same-day funds to Deutsche Mark accounts designated by DTC. The
term "New York Business Day" shall mean any day other than a Saturday or Sunday
or a day on which banking institutions in New York City are authorized or
required by law or executive order to close.
SECTION 317. CUSIP Numbers.
-------------
The Company in issuing the Notes may use a "CUSIP," "CINS," "ISIN"
and/or "WKN" number, and if so, such CUSIP, CINS, ISIN and/or WKN number shall
be included 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 such numbers either as printed on the Notes or as
contained in any notice of redemption or exchange and that reliance may be
placed only on the other identification numbers printed on the Notes. The
Company shall promptly notify the Trustee of any change in any CUSIP, CINS,
ISIN and/or WKN number.
SECTION 318. Deposit of Moneys.
-----------------
In order to provide for the payment of principal of and interest on the
Notes as the same shall become due and payable, the Company hereby agrees to pay
to the Trustee or such Paying Agent or Agents as the Trustee may specify by wire
transfer of immediately available funds prior to 10:00 a.m., local time, on (in
the case of amounts payable in respect
50
of the DTC Global Note) the second Business Day preceding and (in the case of
amounts payable to DBC in respect of the DBC Global Note) the Business Day
preceding each Interest Payment Date or the maturity date (including a date
fixed for redemption) of the Notes in such coin or currency of the Federal
Republic of Germany as at the time of payment shall be legal tender for the
payment of public and private debts, an amount in cash which shall be sufficient
to pay the interest or principal or both, as the case may be, becoming due on
such date.
SECTION 319. Substitution of Currency.
------------------------
If the Federal Republic of Germany adopts the Euro, the regulations of
the European Commission relating to the Euro shall apply to the Notes and this
Indenture. The circumstances and consequences described in this paragraph
entitle neither the Company nor any Holder to early redemption, rescission,
notice, repudiation, adjustment or renegotiation of the terms and conditions of
the Notes or this Indenture or to raise other obligations of the Company under
the Notes and this Indenture.
51
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
---------------------------------------
This Indenture shall cease to be of further effect (except as to
surviving rights of registration of transfer or exchange of the Notes expressly
provided for herein or pursuant hereto) and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture when:
(1) either
(a) all of the Notes theretofore authenticated and delivered
(other than (i) destroyed, lost or stolen Notes which have been replaced or
paid as provided in Section 306 and (ii) Notes for whose payment money has
theretofore been deposited in trust with the Trustee or any Paying Agent or
segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(b) all the Notes not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee trust
funds in trust for such purpose an amount sufficient to pay and discharge
the entire Indebtedness on such Notes not theretofore delivered to the
Trustee for cancellation, for Accreted Value of, premium, if any and
interest on the Notes to the date of such deposit (in the case of Notes
which have become due and payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
52
(3) the Company has delivered to the Trustee 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 606 and, if money shall
have been deposited with the Trustee pursuant to subclause (b) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 shall be held in trust
and applied by it, in accordance with the provisions of the Notes and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal of, premium, if
any, and interest for whose payment such money has been deposited with the
Trustee; but such money need not be segregated from other funds except to the
extent required by law.
53
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
-----------------
"Event of Default", wherever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest on any Note when it becomes
due and payable, and continuance of such default for a period of 30 days;
or
(2) default in the payment of the principal of or premium, if any, on
any Note at its Maturity; or
(3) default in the performance, or breach, of any covenant or agreement
of the Company in this Indenture (other than a default in the performance,
or breach, of a covenant or agreement which is specifically dealt with
elsewhere in this Section, default in the performance of or breach of the
provisions of the "Limitation on Sale of Assets" covenant (section 1017) or
of the provisions of Article Eight, or failure to make or consumate a
Change of Control Offer in accordance with the provisions of the "Purchase
of Notes upon a Change of Control" covenant (section 1010) ), and
continuance of such default or breach for a period of 30 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount at maturity of the Outstanding Notes a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(4) (A) one or more defaults in the payment of principal of, premium,
if any, or interest on Indebtedness of the Company or any Restricted
Subsidiary aggregating $10.0 million or more (or, to the extent not
denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof) when the
same becomes due and payable at the stated maturity thereof, and such
default or defaults shall have continued after any applicable grace period
and shall not have been cured or waived or (B) Indebtedness of the Company
or any Restricted Subsidiary aggregating $10.0 million or more (or, to the
extent not denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof)
shall have been accelerated or otherwise declared due and payable, or
required to be prepaid or repurchased (other than by regularly scheduled
required prepayment), prior to the stated maturity thereof; or
(5) one or more final judgments, orders or decrees of any court or
regulatory agency shall be rendered against the Company or any Significant
54
Subsidiary or their respective properties for the payment of money, either
individually or in an aggregate amount, in excess of $10.0 million (or, to
the extent not denominated in U.S. Dollars, the U.S. Dollar Equivalent
thereof) and either (i) an enforcement proceeding shall have been commenced
by any creditor upon such judgment or order or (ii) there shall have been a
period of 30 days during which a stay of enforcement of such judgment or
order, by reason of pending appeal or otherwise, was not in effect; or
(6) the entry of a decree or order by a court having jurisdiction in
the premises adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of
the Company or any Significant Subsidiary under the U.S. Federal Bankruptcy
Code or any other applicable federal or state law, or appointing a
receiver, liquidator, assignee, trustee, sequestrator (or other similar
official) of the Company or any Significant Subsidiary or of any
substantial part of its property, or ordering the winding up or liquidation
of its affairs, and the continuance of any such decree or order unstayed
and in effect for a period of 90 consecutive days; or
(7) the institution by the Company or any Significant Subsidiary of
proceedings to be adjudicated a bankrupt or insolvent, or the consent by it
to the institution of bankruptcy or insolvency proceedings against it, or
the filing by it of a petition or answer or consent seeking reorganization
or relief under the U.S. Federal Bankruptcy Code or any other applicable
federal or state law, or the consent by it to the filing of any such
petition or to the appointment of a receiver, liquidator, assignee,
trustee, sequestrator (or other similar official) of the Company or any
Significant Subsidiary or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
If an Event of Default (other than an Event of Default specified in
Section 501(6) or (7)) shall occur and be continuing, the Trustee or the Holders
of not less than 25% in aggregate principal amount at maturity of the Notes
Outstanding may declare the Accreted Value of, premium, if any, and accrued
interest on all of such Outstanding Notes immediately due and payable by a
notice in writing to the Company (and to the Trustee if such notice is given by
the Holders), and upon any such declaration all such amounts payable in respect
of the Notes shall become immediately due and payable. If an Event of Default
specified in Section 501(6) or (7) occurs and is continuing, then the Accreted
Value of, premium, if any, and accrued interest on all of the outstanding Notes
shall ipso facto become immediately due and payable without any declaration or
---- -----
other act on the part of the Trustee or any Holder of Notes.
55
At any time after a declaration of acceleration has been made
hereunder, but before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter provided in this Article, the Holders of
a majority in aggregate principal amount at maturity of the Notes Outstanding,
by written notice to the Company and the Trustee, may rescind such declaration
and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay:
(A) all overdue interest on all Outstanding Notes,
(B) all unpaid Accreted Value and premium, if any, on any
Outstanding Notes that have become due otherwise than by such declaration
of acceleration, and interest thereon at the rate borne by the Notes,
(C) to the extent that payment of such interest is lawful,
interest on overdue interest and overdue principal at the rate borne by the
Notes, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default, other than the non-payment of amounts of
Accreted Value of, premium, if any, or interest on the Notes that has
become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 513;
provided however, that no such rescission shall affect any subsequent default or
- -------- -------
impair any right consequent thereon.
Notwithstanding the preceding paragraph, in the event of a declaration
of acceleration in respect of the Notes because an Event of Default specified in
Section 501(4) has occurred and is continuing, such Event of Default and all
consequences thereof (including, without limitation, any acceleration or
resulting payment default) will be automatically annulled, waived and rescinded
if the Indebtedness that is the subject of such Event of Default has been
discharged or the holders thereof have rescinded their declaration of
acceleration in respect of such Indebtedness or the default that is the basis
for such Event of Default has been cured and no other Event of Default has
occurred and has not been cured or waived.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee.
- -------
The Company covenants that if
56
(a) default is made in the payment of any installment of interest on
any Note when such interest becomes due and payable and such default
continues for a period of 30 days, or
(b) default is made in the payment of the principal of or premium, if
any, on any Note at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to the Trustee for the benefit
of the Holders of such Notes, the whole amount then due and payable on such
Notes for principal of, premium, if any, and interest, and interest on any
overdue principal and premium, if any and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installment of interest,
at the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Notes and collect the moneys
adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon the Notes, wherever situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
--------------------------------
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the Notes
or the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Notes shall then be due
and payable as therein expressed or by declaration or otherwise and irrespective
of whether the Trustee shall have made any demand on the Company for the payment
of overdue principal, premium, if any, or interest) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal of,
premium, if any, and interest owing and unpaid in respect of the Notes and
to file such other papers or documents as may be necessary or advisable in
order to have
57
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due 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 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
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 Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Notes.
------------------------------------------------------
All rights of action and claims under this Indenture or the Notes may
be prosecuted and enforced by the Trustee without the possession of any of the
Notes or the production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name and as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Notes in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee upon
presentation of the Notes and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
606;
SECOND: To the payment of the amounts then due and unpaid for
principal of, premium, if any, and interest on the Notes in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Notes for principal, premium, if any, and interest,
respectively; and
58
THIRD: The balance, if any, to the Person or Persons entitled thereto.
SECTION 507. Limitation on Suits.
-------------------
No Holder of any Notes shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Notes shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name
as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority or
more in principal amount of the Outstanding Notes;
it being understood and intended that no one or more Holders shall have any
right in any manner whatever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest.
- --------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Note shall have the right, which is absolute and unconditional, to receive
payment, as provided herein (including, if applicable, Article Twelve) and in
such Note of the principal of, premium, if any, and (subject to Section 307)
interest on such Note on the respective Stated Maturities expressed in such Note
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
59
SECTION 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
306, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Note to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to
the Trustee or to the Holders may be exercised from time to time, and as often
as may be deemed expedient, by the Trustee or by the Holders, as the case may
be.
SECTION 512. Control by Holders.
------------------
The Holders of not less than a majority in principal amount of the
Outstanding Notes shall 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, provided that
--------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not
consenting.
60
SECTION 513. Waiver of Past Defaults.
-----------------------
The Holders of not less than a majority in aggregate principal amount
at maturity of the Outstanding Notes may, on behalf of the Holders of all the
Notes, waive any past default hereunder, except a default
(1) in respect of the payment of the principal of, premium, if any, or
interest on any Note, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Note.
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 thereon.
SECTION 514. Waiver of Stay or Extension Laws.
--------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) 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.
61
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
------------------
If a Default or an Event of Default occurs and is continuing and is
known to the Trustee, the Trustee shall mail notice of the Default or Event of
Default to each Holder within 30 days after the occurrence thereof; provided,
--------
however, that, except in the case of a Default or an Event of Default in the
- -------
payment of the principal of, premium, if any, or interest on any Note, the
Trustee may withhold such notice if and so long as a committee of its trust
officers in good faith determines that the withholding of such notice is in the
interest of the Holders.
SECTION 602. Certain Rights of Trustee.
-------------------------
Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or refraining
from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the
proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the written advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
62
(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;
(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; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
SECTION 603. Trustee Not Responsible for Recitals or Issuance of
---------------------------------------------------
Notes.
- -----
The recitals contained herein and in the Notes, except for the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Notes, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Notes and
perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. The Trustee shall
not be accountable for the use or application by the Company of Notes or the
proceeds thereof.
SECTION 604. May Hold Notes.
--------------
The Trustee, any Paying Agent, any Registrar or any other agent of the
Company or of the Trustee, in its individual or any other capacity, may become
the owner or pledgee of Notes and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not Trustee, Paying Agent, Registrar or such other agent.
63
SECTION 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement.
------------------------------
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee
of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending itself against
any claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder.
The obligations of the Company under this Section to compensate the
Trustee, to pay or reimburse the Trustee for expenses, disbursements and
advances and to indemnify and hold harmless the Trustee shall constitute
additional indebtedness hereunder and shall survive the satisfaction and
discharge of this Indenture. As security for the performance of such
obligations of the Company, the Trustee shall have a claim prior to the Notes
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of, premium, if any, or
interest on particular Notes.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 501(6) or (7), the expenses (including
the reasonable charges and expenses of its counsel) of and the compensation for
such services are intended to constitute expenses of administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
64
SECTION 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall be at all times a Trustee hereunder which shall be eligible
to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital
and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or to the requirements of Federal,
State, territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee
shall cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter specified
in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of not
less than a majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA Section
310(b) after written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607 and shall
fail to resign after written request therefor by the Company or by any
Holder who has been a bona fide Holder of a Note for at least six months,
or
(3) the Trustee shall become incapable of acting or shall be adjudged a
bankrupt or insolvent or a receiver of the Trustee or of its property shall
be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
65
then, in any such case, (i) the Company, by a Board Resolution, may remove the
Trustee, or (ii) subject to TIA Section 315(e), any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company, by a Board Resolution, shall promptly appoint a successor Trustee. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment, become the successor Trustee
and supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders and accepted
appointment in the manner hereinafter provided, any Holder who has been a bona
fide Holder of a Note for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to the Holders of
Notes in the manner provided for in Section 106. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor.
--------------------------------------
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
66
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business.
- --------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Notes shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Notes so authenticated with the same effect
as if such successor Trustee had itself authenticated such Notes. In case at
that time any of the Notes shall not have been authenticated, any successor
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee. In all such cases such
certificates shall have the full force and effect which this Indenture provides
for the certificate of authentication of the Trustee shall have; provided,
--------
however, that the right to adopt the certificate of authentication of any
- -------
predecessor Trustee or to authenticate Notes in the name of any predecessor
Trustee shall apply only to its successor or successors by merger, conversion or
consolidation.
67
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
Every Holder of Notes, by receiving and holding the same, agrees with
the Company and the Trustee that none of the Company or the Trustee or any agent
of either of them shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Holders in accordance with
TIA Section 312, regardless of the source from which such information was
derived, and that the Trustee shall not be held accountable by reason of mailing
any material pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
------------------
Within 60 days after June 15 of each year commencing with the first
June 15 after the first issuance of Notes, the Trustee shall transmit to the
Holders, in the manner and to the extent provided in TIA Section 313(c), a brief
report dated as of such June 15 if required by TIA Section 313(a).
SECTION 703. Reports by Company.
------------------
The Company shall:
(1) file with the Trustee, within 15 days after the Company is required
to file the same with the Commission, copies of the annual reports and of
the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a note listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture as may be
required from time to time by such rules and regulations; and
68
(3) transmit by mail to all Holders, in the manner and to the extent
provided in TIA Section 313(c), within 30 days after the filing thereof
with the Trustee, such summaries of any information, documents and reports
required to be filed by the Company pursuant to paragraphs (1) and (2) of
this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
69
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not, in a single transaction or a series of related
transactions, consolidate with or merge with or into any other Person or sell,
assign, convey, transfer, lease or otherwise dispose of all or substantially all
of its properties and assets substantially as an entirety to any other Person or
Persons or permit any Restricted Subsidiary to enter into any such transaction
or series of related transactions, if such transaction or series of related
transactions, in the aggregate, would result in the sale, assignment,
conveyance, transfer, lease or other disposition of all or substantially all of
the properties and assets of the Company and its Restricted Subsidiaries on a
consolidated basis substantially as an entirety to any Person or Persons,
unless:
(1) at the time and immediately after giving effect thereto either (A)
the Company shall be the surviving corporation or (B) the Person (if other
than the Company) formed by such consolidation or into which the Company or
such Restricted Subsidiary is merged or the Person which acquires by sale,
conveyance, transfer, lease or other disposition, all or substantially all
of the properties and assets of the Company and its Restricted Subsidiaries
on a consolidated basis substantially as an entirety, as the case may be
(the "Surviving Entity"), (i) shall be a corporation organized and validly
existing under the laws of the United States of America, any state thereof
or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, the Company's obligations for the due and
punctual payment of the principal of, premium, if any, on and interest on
all the Notes and the performance and observance of every covenant of this
Indenture on the part of the Company to be performed or observed;
(2) immediately before and after giving effect to such transaction or
series of transactions on a pro forma basis (and treating any obligation of
--- -----
the Company or any Restricted Subsidiary incurred in connection with or as
a result of such transaction or series of transactions as having been
incurred at the time of such transaction), no Default or Event of Default
shall have occurred and be continuing;
(3) immediately after giving effect to such transaction or series of
transactions on a pro forma basis (on the assumption that the transaction
--- -----
or series of transactions occurred on the first day of the latest fiscal
quarter for which consolidated financial statements of the Company are
available immediately prior to the consummation of such transaction or
series of transactions with the appropriate adjustments with respect to the
transaction or series of transactions being included in such pro forma
---------
calculation), the Company (or the Surviving Entity if the Company is not
the continuing obligor under the Indenture) could incur at least $1.00 of
70
additional Indebtedness (other than Permitted Indebtedness) under the
provisions of the "Limitation on Additional Indebtedness" covenant (Section
1011); and
(4) if any of the property or assets of the Company or any of its
Restricted Subsidiaries would thereupon become subject to any Lien, the
provisions of the "Limitation of Liens" covenant (Section 1015) are
complied with.
In connection with any such consolidation, merger, sale, assignment,
conveyance, transfer, lease or other disposition, the Company or the
Surviving Entity shall have delivered to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers' Certificate and an
Opinion of Counsel, each stating that such consolidation, merger, sale,
assignment, conveyance, transfer, lease or other disposition, and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction have
been complied with.
SECTION 802. Successor Substituted.
---------------------
Upon any consolidation of the Company with or merger of the Company
with or into any other corporation or any sale, assignment, conveyance,
transfer, lease or disposition of all or substantially all of the properties and
assets of the Company in accordance with Section 801 in which the Company is not
the continuing obligor under the Indenture, the Surviving Entity shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor had been
named as the Company herein. When a successor assumes all the obligations of
the Company hereunder, the Company (which term shall for this purpose mean the
Person named as the "Company" in the first paragraph of this Indenture) shall be
discharged of all obligations and covenants under this Indenture and the Notes
and may be dissolved and liquidated provided, however, that in the case of a
-------- -------
transfer by lease, the Company shall not be released from the payment of
principal and interest on the Notes.
SECTION 803. Notes to Be Secured in Certain Events.
-------------------------------------
If, upon any such consolidation of the Company with or merger of the
Company into any other corporation, or upon any conveyance, lease or transfer of
the property of the Company substantially as an entirety to any other Person,
any property or assets of the Company would thereupon become subject to any
Lien, then unless such Lien could be created pursuant to Section 1015 without
equally and ratably securing the Notes, the Company, prior to or simultaneously
with such consolidation, merger, conveyance, lease or transfer, will as to such
property or assets, secure the Notes Outstanding (together with, if the Company
shall so determine any other Indebtedness of the Company now existing or
hereinafter created which is not subordinate in right of payment to the Notes)
equally and ratably with (or prior to) the Indebtedness which upon such
consolidation, merger, conveyance, lease or transfer is to become secured as to
such property or assets by
71
such Lien, or will cause such Notes to be so secured; provided that, for the
--------
purpose of providing such equal and ratable security, the principal amount of
the Notes shall mean that amount which would at the time of making such
effective provision be due and payable pursuant to Section 502 upon a
declaration of acceleration of the Maturity thereof, and the extent of such
equal and ratable note shall be adjusted, to the extent permitted by law, as and
when said amount changes over time as provided in Section 502.
72
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company or any
other obligor on the Notes and the assumption by any such successor of the
covenants of the Company or such obligor contained herein and in the Notes
in accordance with Article Eight hereof; or
(2) to add to the covenants of the Company or any other obligor on the
Notes for the benefit of the Holders or to surrender any right or power
herein conferred upon the Company or any other Obligor on the Notes; or
(3) to cure any ambiguity, or to correct or supplement any provision
herein or in the Notes which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising hereunder or in the Notes; provided that such action
--------
shall not adversely affect the interests of the Holders; or
(4) to comply with the requirements of the Commission in order to
effect or maintain the qualification, if any, of this Indenture under the
Trust Indenture Act; or
(5) to add a guarantor of the Notes hereunder; or
(6) to evidence and provide acceptance of the appointment of a
successor Trustee hereunder; or
(7) to mortgage, pledge, hypothecate or grant a note interest in favor
of the Trustee for the benefit of the Holders as additional security for
the payment and performance of the Company's and any guarantor's
obligations hereunder, in any property or assets, including any of which
are required to be mortgaged, pledged or hypothecated, or in which a
security interest is required to be granted to the Trustee pursuant hereto
or otherwise; or
(8) to secure the Notes pursuant to the requirements of Section 803 or
otherwise.
73
SECTION 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
With the consent of the Holders of not less than a majority in
aggregate principal amount at maturity of the Outstanding Notes, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
- -------- -------
consent of the Holder of each Outstanding Note affected thereby:
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Note, or reduce the principal amount or Accreted Value
thereof or premium, if any, or the rate of interest thereon or reduce the
amount of the principal of the Notes that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504, or
change the coin or currency in which the principal of any such Note or any
premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment after the Stated
Maturity thereof (or, in the case of redemption, on or after the Redemption
Date); or
(2) amend, change or modify the redemption provisions hereof or of the
Notes or the obligation of the Company to make and consummate an Excess
Proceeds Offer with respect to any Asset Sale in accordance with the
"Limitation on Sale of Assets" covenant (Section 1017) or the obligation of
the Company to make and consummate a Change of Control Offer in the event
of a Change of Control in accordance with the "Purchase of Notes upon a
Change of Control" covenant (Section 1010), including, in each case,
amending, changing or modifying any definition relating thereto, or
(3) reduce the percentage in principal amount at maturity of
Outstanding Notes the consent of whose Holders is required for any waiver
of compliance with certain provisions hereof, or
(4) modify any of the provisions relating to supplemental indentures
requiring the consent of Holders or relating to the waiver of past defaults
or relating to the waiver of certain covenants, except to increase the
percentage of Outstanding Notes required for such actions or to provide
that certain other provisions hereof cannot be modified or waived without
the consent of the Holder of each Note affected thereby, or
(5) except as otherwise permitted under Article Eight, consent to the
assignment or transfer by the Company of any of its rights or obligations
hereunder, or
74
(6) amend or modify any of the provisions hereof relating to any
guarantee of the Notes in any manner adverse to the Holders of such Notes.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
SECTION 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to the Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Notes to Supplemental Indentures.
---------------------------------------------
Notes authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Notes so modified as to conform, in the opinion of the Trustee and the
Company, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
SECTION 907. Notice of Supplemental Indentures.
---------------------------------
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 902, the Company
shall give notice thereof to the Holders of each Outstanding Note affected, in
the manner provided for in Section 106, setting forth in general terms the
substance of such supplemental indenture.
75
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders that it
shall duly and punctually pay the principal of, premium, if any, and interest on
the Notes in accordance with the terms of the Notes and this Indenture.
SECTION 1002. Maintenance of Office or Agency.
-------------------------------
The Company shall maintain in the City of New York, an office or agency
where Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer or exchange and where notices and
demands to or upon the Company in respect of the Notes and this Indenture may be
served. The Company initially designates State Street Bank and Trust Company,
at 61 Broadway, New York, New York 10005 to be such office or agency of the
Company, unless the Company shall designate and maintain some other office or
agency for one or more of such purposes. The Company shall give prompt written
notice to the Trustee of any change in the location of any 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
Corporate Trust Office of the Trustee, 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 (in or outside of the City of New York) where the Notes may
be presented or surrendered for any or all such purposes and may from time to
time rescind any such designation; provided, however, that no such designation
-------- -------
or rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in the City of New York for such purposes. The
Company shall give prompt written notice to the Trustee of any such designation
or rescission and any change in the location of any such other office or agency.
SECTION 1003. Money for Note Payments to Be Held in Trust.
-------------------------------------------
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of, premium, if any, or interest on
any of the Notes, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal of, premium, if any, or
interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and shall promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Notes, it shall, on or before each due date of the principal of, premium, if
any, or interest on any
76
Notes, deposit with a Paying Agent a sum sufficient to pay the principal,
premium, if any, or interest so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such principal, premium or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of such action or any failure so to act.
The Company shall cause each Paying Agent (other than the Trustee) to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal of,
premium, if any, or interest on Notes in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Notes) in the making of any payment of principal,
premium, if any, or interest; and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, if any,
or interest on any Note and remaining unclaimed for two years after such
principal, premium or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be discharged
from such trust; and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
-------- -------
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in the Borough of Manhattan, the City of New York, notice that such money
remains unclaimed and that, after a date specified therein, which shall not be
less than 30 days from the date of such publication, any unclaimed balance of
such money then remaining will be repaid to the Company.
77
SECTION 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect the corporate
existence, rights (charter and statutory) and franchises of the Company and each
Subsidiary; provided, however, that the Company shall not be required to
-------- -------
preserve any such right or franchise 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 as a whole and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Payment of Taxes and Other Claims.
---------------------------------
The Company shall pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary and (b)
all lawful claims for labor, materials and supplies, which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
--------
however, that the Company shall not be required to pay or discharge or cause to
- -------
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1006. Maintenance of Properties.
-------------------------
The Company shall cause all properties owned by the Company or any
Subsidiary or used or held for use in the conduct of its business or the
business of any Subsidiary to be maintained and kept in good condition, repair
and working order and supplied with all necessary equipment and will cause to be
made all necessary repairs, renewals, replacements, betterments and improvements
thereof, all as in the judgment of the Company may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
-------- -------
prevent the Company from discontinuing the maintenance of any of such properties
if such discontinuance is, in the judgment of the Company, desirable in the
conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1007. Insurance.
---------
The Company shall at all times keep all of its and its Subsidiaries
properties which are of an insurable nature insured with insurers, believed by
the Company to be responsible, against loss or damage to the extent that
property of similar character is usually so insured by corporations similarly
situated and owning like properties.
78
SECTION 1008. Statement by Officers As to Default.
-----------------------------------
(a) The Company shall deliver to the Trustee, within 120 days after
the end of each fiscal year and within 30 days after the end of each fiscal
quarter, a statement from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
performance by the Company of its obligations under this Indenture and as to any
default in such performance. For purposes of this Section 1008(a), such
performance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
(b) When any Default has occurred and is continuing under this
Indenture, or if the trustee for or the holder of any other evidence of
Indebtedness of the Company or any Restricted Subsidiary gives any notice or
takes any other action with respect to a claimed default (other than with
respect to Indebtedness in the principal amount of less than $10.0 million), the
Company shall deliver to the Trustee by registered or certified mail or by
telegram, telex or facsimile transmission an officers' certificate specifying
such event, notice or other action within five Business Days of its occurrence.
SECTION 1009. Provision of Financial Statements and Reports.
---------------------------------------------
Whether or not the Company is required to file reports with the
Commission, the Company shall file on a timely basis with the Commission, the
annual reports, quarterly reports and other documents that the Company would be
required to file if it were subject to Section 13 or 15 of the Exchange Act. The
Company shall also be required (a) to file with the Trustee, and provide to each
Holder, without cost to such holder, copies of such reports and documents within
15 days after the date on which such reports and documents are filed with the
Commission or the date on which the Company would be required to file such
reports and documents if the Company were so required, and (b) if filing such
reports and documents with the Commission is not accepted by the Commission or
is prohibited under the Exchange Act, to supply at the Company's cost copies of
such reports and documents to any prospective holder of Notes promptly upon
written request.
SECTION 1010. Purchase of Notes upon Change of Control.
----------------------------------------
(a) Upon the occurrence of a Change of Control, each Holder shall
have the right to require that the Company repurchase such Holder's Notes in
whole or in part in integral multiples of DM 1,000 principal amount at maturity,
at a purchase price (the "Change of Control Purchase Price") in cash in an
amount equal to 101% of the Accreted Value thereof plus accrued and unpaid
interest, if any, to the date of purchase (the "Change of Control Purchase
Date"), pursuant to the offer described below (the "Change of Control Offer") in
accordance with the procedures set forth in paragraphs (b) and (c) of this
Section.
(b) Within 15 days following any Change of Control, the Company
shall notify the Trustee and give to each Holder of the Notes in the manner
provided in Section 106 a notice stating:
79
(1) that a Change of Control has occurred and that such Holder has
the right to require the Company to repurchase such Holder's Notes at the
Change of Control Purchase Price;
(2) the circumstances and relevant facts regarding such Change of
Control (including but not limited to information with respect to pro forma
--- -----
historical income, cash flow and capitalization after giving effect to such
Change of Control);
(3) the purchase date (the "Change of Control Purchase Date") which
shall be a Business Day no earlier than 30 days nor later than 60 days from
the date such notice is mailed or such later date as is necessary to comply
with requirements under the Exchange Act or any applicable securities laws
or regulations;
(4) that any Note not tendered shall continue to accrue interest or
original issue discount, as the case may be;
(5) that, unless the Company defaults in payment of the purchase
price, any Notes accepted for payment pursuant to the Change of Control
Offer shall cease to accrue interest or original issue discount, as the
case may be, after the Change of Control Purchase Date; and
(6) the instructions a Holder must follow in order to have its
Notes repurchased in accordance with paragraph (c) of this Section.
(c) Holders electing to have Notes purchased will be required to
surrender such Notes to the Company at the address specified in the notice at
least five Business Days prior to the Change of Control Purchase Date. Holders
will be entitled to withdraw their election if the Company receives, not later
than three Business Days prior to the Change of Control Purchase Date, a
telegram, telex, facsimile transmission or letter setting forth the name of the
Holder, the principal amount of the Notes delivered for purchase by the Holder
as to which his election is to be withdrawn and a statement that such Holder is
withdrawing his election to have such Notes purchased. Holders whose Notes are
purchased only in part will be issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
SECTION 1011. Limitation on Additional Indebtedness.
-------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to Incur any Indebtedness (including any Acquired Indebtedness), except for
Permitted Indebtedness; provided that the Company shall be permitted to Incur
--------
Indebtedness if after giving pro forma effect to such Incurrence (including the
--- -----
application of the net proceeds therefrom), the ratio of (x) Total Consolidated
Indebtedness outstanding as of the date of such Incurrence to (y) Annualized Pro
Forma Consolidated Operating Cash Flow for the latest fiscal quarter for which
consolidated financial statements of the Company are available preceding the
date of such Incurrence would be greater than zero and less than or equal to
80
(i) 6.0 to 1 if the Indebtedness is Incurred prior to December 31, 1999 or (ii)
5.0 to 1 if the Indebtedness is Incurred on or after December 31, 1999.
In making the foregoing calculation, pro forma effect shall be given
--- -----
to: (i) the Incurrence of such Indebtedness and (if applicable) the application
of the net proceeds therefrom, including to refinance other Indebtedness, as if
such Indebtedness was Incurred, and the application of such proceeds occurred,
on the first day of the latest fiscal quarter for which consolidated financial
statements of the Company are available immediately preceding the date of the
Incurrence of such Indebtedness, (ii) the Incurrence, repayment or retirement of
any other Indebtedness by the Company and its Restricted Subsidiaries since the
first day of such fiscal quarter as if such Indebtedness were Incurred, repaid
or retired on the first day of such fiscal quarter (except that, in making such
calculation, the amount of Indebtedness under any revolving credit facility
shall be computed based upon the average daily balance of such Indebtedness
during such fiscal quarter) and (iii) the acquisition (whether by purchase,
merger or otherwise) or disposition (whether by sale, merger or otherwise) of
any company, entity or business acquired or disposed of by the Company or its
Restricted Subsidiaries, as the case may be, since the first day of such fiscal
quarter, as if such acquisition or disposition occurred on the first day of such
fiscal quarter.
For purposes of determining compliance with this covenant, in the event
that an item of Indebtedness or any portion thereof meets the criteria of more
than one of the types of Indebtedness the Company or any Restricted Subsidiary
is permitted to Incur, the Company shall have the right, in its sole discretion,
to classify such item of Indebtedness or portion thereof at the time of the
Incurrence and shall only be required to include the amount and type of such
Indebtedness or portion thereof under the clause permitting the Indebtedness so
classified.
SECTION 1012. Limitation on Restricted Payments.
---------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, take any of the following actions:
(i) declare or pay any dividend on, or make any distribution to
holders of, any shares of the Capital Stock of the Company (other than dividends
or distributions payable solely in shares of its Qualified Capital Stock or in
options, warrants or other rights to acquire such shares of Qualified Capital
Stock);
(ii) purchase, redeem or otherwise acquire or retire for value,
directly or indirectly, any shares of Capital Stock of the Company or any
Capital Stock of any Affiliate of the Company (other than Capital Stock of any
Wholly Owned Restricted Subsidiary) or any options, warrants or other rights to
acquire such shares of Capital Stock;
(iii) make any principal payment on, or repurchase, redeem,
defease or otherwise acquire or retire for value, prior to any scheduled
principal payment, sinking fund
81
payment or maturity, any Subordinated Indebtedness (other than any Subordinated
Indebtedness owed to and held by a Restricted Subsidiary);
(iv) make any Investment (other than any Permitted Investment and
subject to the provisions of the "Limitation on Investments in Unrestricted
Subsidiaries" covenant (Section 1020));
(v) create or assume any guarantee of Indebtedness of any Affiliate
of the Company (other than (i) guarantees of any Indebtedness of any Wholly
Owned Restricted Subsidiary by the Company or any Restricted Subsidiary or (ii)
the guarantees of the Notes by any Restricted Subsidiary); or
(vi) declare or pay any dividend or distribution on any Capital
Stock of any Restricted Subsidiary to any Person (other than the Company or any
of its Wholly Owned Restricted Subsidiaries or to all holders of Capital Stock
of such Restricted Subsidiary on a pro rata basis);
(such payments or other actions described in (but not excluded from) clauses (i)
through (vi) are collectively referred to as "Restricted Payments"), unless: (1)
no Default or Event of Default shall have occurred and be continuing at the time
of or after giving effect to such Restricted Payment; (2) immediately after
giving effect to such Restricted Payment, the Company could incur at least $1.00
of additional Indebtedness (other than Permitted Indebtedness) pursuant to the
"Limitation on Additional Indebtedness" covenant (Section 1011); and (3)
immediately after giving effect to such Restricted Payment, the aggregate amount
of all Restricted Payments declared or made on or after the date of the
Indenture would not exceed an amount equal to the sum of:
(A) 50% of cumulative Consolidated Adjusted Net Income (or, if the
Consolidated Adjusted Net Income is a deficit, minus 100% of the amount of such
deficit) of the Company during the period (taken as a single accounting period)
beginning on the first day of the fiscal quarter of the Company beginning after
the date of the Indenture and ending on the last day of the last full fiscal
quarter immediately preceding the date of such Restricted Payment for which
quarterly or annual consolidated financial statements of the Company are
available; plus
(B) the aggregate Net Cash Proceeds received by the Company on or
after the date of the Indenture as capital contributions or from the issuance or
sale (other than to any Subsidiary) of shares of Qualified Capital Stock of the
Company (including upon the exercise of options, warrants or rights) or
warrants, options or rights to purchase shares of Qualified Capital Stock of the
Company; plus
(C) the aggregate Net Cash Proceeds received after the date of the
Indenture by the Company from the issuance or sale (other than to any
Subsidiary) of debt notes or Redeemable Capital Stock that have been converted
into or exchanged for Qualified
82
Capital Stock of the Company, together with the aggregate net cash proceeds
received by the Company at the time of such conversion or exchange; plus
(D) to the extent not otherwise included in the Consolidated
Adjusted Net Income of the Company, an amount equal to the sum of (i) the net
reduction in Investments in any Person (other than Permitted Investments)
resulting from the payment in cash of dividends, repayments of loans or advances
or other transfers of assets, in each case to the Company or any Restricted
Subsidiary after the date of the Indenture from such Person and (ii) the portion
(proportionate to the Company's equity interest in such Subsidiary) of the fair
market value of the net assets of any Unrestricted Subsidiary at the time such
Unrestricted Subsidiary is designated a Restricted Subsidiary; provided,
--------
however, that in the case of (i) or (ii) above the foregoing sum shall not
- -------
exceed the amount of Investments previously made (and treated as a Restricted
Payment) by the Company or any Restricted Subsidiary in such Person or
Unrestricted Subsidiary.
(b) Notwithstanding paragraph (a) above, the Company and any
Restricted Subsidiary may take the following actions so long as (with respect to
clauses (ii), (iii), (iv), (v) and (vi) below) no Default or Event of Default
shall have occurred and be continuing:
(i) the payment of any dividend within 60 days after the date of
declaration thereof, if at such date of declaration such dividend would have
complied with the provisions of paragraph (a) above and such payment shall be
deemed to have been paid on such date of declaration for purposes of the
calculation required by paragraph (a) above;
(ii) the purchase, redemption or other acquisition or retirement for
value of any shares of Capital Stock of the Company, in exchange for, or out of
the net cash proceeds of a substantially concurrent issuance and sale (other
than to a Subsidiary) of, shares of Qualified Capital Stock of the Company;
(iii) the purchase, redemption, defeasance or other acquisition or
retirement for value of any Subordinated Indebtedness in exchange for or out of
the net cash proceeds of a substantially concurrent issuance and sale (other
than to a Subsidiary) of shares of Qualified Capital Stock of the Company;
(iv) the purchase of any Subordinated Indebtedness at a purchase
price not greater than 101% of the principal amount thereof, together with
accrued interest, if any, thereof in the event of a Change of Control in
accordance with provisions similar to the "Purchase of Notes upon a Change of
Control" covenant (Section 1010); provided that prior to such purchase the
--------
Company has made the Change of Control Offer as provided in such covenant with
respect to the Notes and has purchased all Notes validly tendered for payment in
connection with such Change of Control Offer;
83
(v) Investments constituting Restricted Payments made as the result
of the receipt of non-cash consideration from any Asset Sale made in compliance
with the "Limitation on Sale of Assets" covenant (Section 1017); and
(vi) the purchase, redemption, defeasance or other acquisition or
retirement for value of Subordinated Indebtedness in exchange for, or out of the
net cash proceeds of a substantially concurrent incurrence (other than to a
Subsidiary) of, new Subordinated Indebtedness so long as (A) the principal
amount of such new Subordinated Indebtedness does not exceed the principal
amount (or, if such Subordinated Indebtedness being refinanced provides for an
amount less than the principal amount thereof to be due and payable upon a
declaration of acceleration thereof, such lesser amount as of the date of
determination) of the Subordinated Indebtedness being so purchased, redeemed,
defeased, acquired or retired, plus the lesser of the amount of any premium
required to be paid in connection with such refinancing pursuant to the terms of
such Subordinated Indebtedness being refinanced or the amount of any premium
reasonably determined by the Company as necessary to accomplish such
refinancing, plus, in either case, the amount of expenses of the Company
incurred in connection with such refinancing, (B) such new Subordinated
Indebtedness is subordinated to the Notes to the same extent as such
Subordinated Indebtedness so purchased, redeemed, defeased, acquired or retired
and (C) such new Subordinated Indebtedness has an Average Life longer than the
Average Life of the Notes and a final Stated Maturity of principal later than
the final Stated Maturity of principal of the Notes.
The actions described in clauses (i), (ii), (iii) and (iv) of this paragraph (b)
shall be Restricted Payments that shall be permitted to be taken in accordance
with this paragraph (b) but shall reduce the amount that would otherwise be
available for Restricted Payments under clause (3) of paragraph (a) and the
actions described in clauses (v) and (vi) of this paragraph (b) shall be
Restricted Payments that shall be permitted to be taken in accordance with this
paragraph (b) and shall not reduce the amount that would otherwise be available
for Restricted Payments under clause (3) of paragraph (a) above.
SECTION 1013. Limitation on Issuances and Sales of Capital Stock of
-----------------------------------------------------
Restricted Subsidiaries.
- -----------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, issue or sell any Capital Stock of a Restricted Subsidiary (other than to
the Company or a Wholly Owned Restricted Subsidiary) other than Permitted
Capital Stock Sales; provided, however, that this covenant shall not prohibit
-------- -------
(i) the ownership by directors of directors' qualifying shares or the ownership
by foreign nationals of Capital Stock of any Restricted Subsidiary, to the
extent mandated by applicable law, (ii) the issuance and sale of all, but not
less than all, of the issued and outstanding Capital Stock of any Restricted
Subsidiary owned by the Company or any Restricted Subsidiary in compliance with
the "Limitation on Sale of Assets" covenant (Section 1017).
84
SECTION 1014. Limitation on Transactions with Affiliates.
------------------------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to enter into or suffer to exist, directly or indirectly, any
transaction or series of related transactions (including, without limitation,
the sale, purchase, exchange or lease of assets, property or services) with, or
for the benefit of, any Affiliate of the Company or any Restricted Subsidiary
unless (i) such transaction or series of related transactions are on terms that
are no less favorable to the Company, or such Restricted Subsidiary, as the case
may be, than those that could have been obtained in an arm's-length transaction
with unrelated third parties who are not Affiliates, (ii) with respect to any
transaction or series of related transactions involving aggregate consideration
equal to or greater than $1.0 million (or to the extent not denominated in U.S.
Dollars, the U.S. Dollar Equivalent thereof), the Company shall deliver an
officers' certificate to the Trustee certifying that such transaction or series
of related transactions complies with clause (i) above; (iii) with respect to
any transaction or series of related transactions involving aggregate
consideration equal to or greater than $5.0 million (or, to the extent not
denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof), the Company
shall deliver an officers' certificate to the Trustee certifying that such
transaction or series of related transactions complies with clause (i) above and
has been approved by a majority of the Disinterested Directors of the Board of
Directors of the Company, or the Company shall deliver to the Trustee a written
opinion from an internationally recognized investment banking firm to the effect
that such transaction or series of related transactions is fair to the Company
or such Restricted Subsidiary, as the case may be, from a financial point of
view and (iv) with respect to any transaction or series of related transactions
involving aggregate consideration equal to or greater than $10.0 million (or to
the extent not denominated in U.S. Dollars, the U.S. Dollar Equivalent thereof),
the Company shall deliver to the Trustee a written opinion from an
internationally recognized investment banking firm to the effect that such
transaction or series of related transactions is fair to the Company or such
Restricted Subsidiary, as the case may be, from a financial point of view;
provided, however, that this provision shall not restrict (1) any transaction or
- -------- -------
series of related transactions among the Company and Restricted Subsidiaries or
among Restricted Subsidiaries, (2) Investments in Qualified Capital Stock of the
Company by any Person, including an Affiliate of the Company, (3) the Company
from paying reasonable and customary regular compensation and fees to directors
of the Company or any Restricted Subsidiary who are not executives of any such
Persons, (4) the Company or any Subsidiary from making any Restricted Payment in
compliance with the "Limitation on Restricted Payments" covenant (Section 1012),
(5) any transaction by the Company or any Restricted Subsidiary with a supplier,
vendor or lessor of goods or services in the ordinary course of business, (6)
any compensation payable under any employment agreement entered into by the
Company or any of its Restricted Subsidiaries in the ordinary course of
business, or (7) transactions that do not constitute Restricted Payments by
virtue of exceptions set forth in the definition of "Permitted Investments".
85
SECTION 1015. Limitation on Liens.
-------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create, incur, assume or suffer to exist any Lien
(other than Permitted Liens) on or with respect to any of its property or
assets, including any shares of stock or indebtedness of any Restricted
Subsidiary, whether owned at the date of the Indenture or thereafter acquired,
or any income, profits or proceeds therefrom, or assign or otherwise convey any
right to receive income thereon, unless (x) in the case of any Lien securing
Subordinated Indebtedness, the Notes are secured by a Lien on such property,
assets or proceeds that is senior in priority to such Lien and (y) in the case
of any other Lien, the Notes are equally and ratably secured with the obligation
or liability secured by such Lien.
SECTION 1016. Limitation on Issuances of Guarantees of Indebtedness
-----------------------------------------------------
by Restricted Subsidiaries.
- --------------------------
(a) The Company shall not permit any Restricted Subsidiary, directly
or indirectly, to guarantee, assume or in any other manner become liable with
respect to any Indebtedness of the Company unless (i) (A) such Restricted
Subsidiary simultaneously executes and delivers a supplemental indenture
providing for the guarantee of payment of the Notes by such Restricted
Subsidiary and (B) with respect to any guarantee of Subordinated Indebtedness of
the Company by a Restricted Subsidiary, any such guarantee shall be subordinated
to such Restricted Subsidiary's guarantee with respect to the relevant Notes at
least to the same extent as such Subordinated Indebtedness is subordinated to
the Notes and (ii) such Restricted Subsidiary waives and shall not in any manner
whatsoever claim or take the benefit or advantage of, any rights or
reimbursement, indemnity or subrogation or any other rights against the Company
or any other Restricted Subsidiary as a result of any payment by such Restricted
Subsidiary under its guarantee until the relevant Notes have been paid in full;
provided that this paragraph (a) shall not be applicable to (x) any guarantee of
- --------
any Restricted Subsidiary that existed at the time such Person became a
Restricted Subsidiary or (y) any guarantee of any Restricted Subsidiary of
Indebtedness incurred pursuant to a Bank Facility.
(b) Notwithstanding the foregoing, any guarantee of the Notes created
pursuant to the provisions described in the foregoing paragraph (a) shall
provide by its terms that it shall be automatically and unconditionally released
and discharged upon (i) any sale, exchange or transfer, to any Person who is not
an Affiliate of the Company, of all of the Company's Capital Stock in, or all or
substantially all the assets of, such Restricted Subsidiary (which sale,
exchange or transfer is not prohibited by the Indenture) or (ii) the release by
the holders of the Indebtedness of the Company described in the preceding
paragraph of their guarantee by such Restricted Subsidiary (including any deemed
release upon payment in full of all obligations under such Indebtedness, except
by or as a result of payment under such guarantee), at a time when (A) no other
Indebtedness of the Company has been guaranteed by such Restricted Subsidiary or
(B) the holders of all such other Indebtedness which is guaranteed by such
Restricted Subsidiary also release their guarantee by such Restricted Subsidiary
(including any deemed release upon payment in full of all
86
obligations under such Indebtedness, except by or as a result of payment under
such guarantee).
SECTION 1017. Limitation on Sale of Assets.
----------------------------
(a) The Company shall not, and shall not permit any Restricted
Subsidiary to, directly or indirectly, engage in any Asset Sale unless (i) the
consideration received by the Company or such Restricted Subsidiary for such
Asset Sale is not less than the fair market value of the shares or assets sold
(as determined by the Board of Directors of the Company, whose determination
shall be conclusive and evidenced by a Board Resolution) and (ii) the
consideration received by the Company or the relevant Restricted Subsidiary in
respect of such Asset Sale consists of at least 85% cash or Cash Equivalents.
(b) If the Company or any Restricted Subsidiary engages in an Asset
Sale, the Company may use the Net Cash Proceeds thereof, within 12 months after
such Asset Sale, to (i) permanently repay or prepay any then outstanding
unsubordinated Indebtedness of the Company or Indebtedness of any Restricted
Subsidiary or (ii) invest (or enter into a legally binding agreement to invest)
in ATM Network Assets or in properties or assets to replace the properties and
assets that were the subject of the Asset Sale. If any such legally binding
agreement to invest such Net Cash Proceeds is terminated, then the Company may,
within 90 days of such termination or within 12 months of such Asset Sale,
whichever is later, apply or invest such Net Cash Proceeds as provided in clause
(i) or (ii) (without regard to the parenthetical contained in such clause (ii))
above. The amount of such Net Cash Proceeds not so used as set forth above in
this paragraph (b) constitutes "Excess Proceeds."
(c) When the aggregate amount of Excess Proceeds exceeds $10.0
million (or, to the extent not denominated in U.S. Dollars, the U.S. Dollar
Equivalent thereof) the Company shall, within 15 business days, make an offer to
purchase (an "Excess Proceeds Offer") from all holders of Notes, on a pro rata
--- ----
basis, in accordance with the procedures set forth below, the maximum Accreted
Value of Notes (expressed as a multiple of DM 1,000) that may be purchased with
the Excess Proceeds. The offer price as to each Note shall be payable in cash in
an amount equal to 100% of the Accreted Value of such Note as of the date of
purchase plus, in each case, accrued interest, if any (the "Offered Price") to
the date an Excess Proceeds Offer is consummated. To the extent that the
aggregate Offered Price of Notes tendered pursuant to an Excess Proceeds Offer
is less than the Excess Proceeds, the Company may use such deficiency for
general corporate purposes. If the aggregate Offered Price of Notes validly
tendered and not withdrawn by holders thereof exceeds the Excess Proceeds, Notes
to be purchased shall be selected on a pro rata basis. Upon completion of such
--- ----
offer to purchase, the amount of Excess Proceeds shall be reset to zero.
SECTION 1018. Limitation on Sale and Leaseback Transactions.
---------------------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, enter into any Sale and Leaseback Transaction (other
than a
87
transaction that is solely between the Company and any Wholly Owned Restricted
Subsidiary or solely between Wholly Owned Restricted Subsidiaries) after the
Issue Date with respect to any property or assets (whether now owned or
hereafter acquired), unless (i) the sale or transfer of such property or assets
to be leased is treated as an Asset Sale and the Company complies with the
"Limitation on Sale of Assets" covenant (Section 1017), (ii) the Company or such
Restricted Subsidiary would be permitted to incur Indebtedness under the
"Limitation on Additional Indebtedness" covenant (Section 1011) (including
Permitted Indebtedness) in the amount of the Attributable Value of such Sale and
Leaseback Transaction and (iii) the Company or such Restricted Subsidiary would
be permitted to grant a Lien under the "Limitation on Liens" covenant (Section
1015) (including Permitted Liens) to secure the amount of the Attributable Value
of such Sale and Leaseback Transaction.
SECTION 1019. Limitation on Dividends and Other Payment Restrictions
------------------------------------------------------
Affecting Restricted Subsidiaries.
- ---------------------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, directly or indirectly, create or otherwise cause or suffer to exist or
become effective any encumbrance or restriction of any kind on the ability of
any Restricted Subsidiary to (a) pay dividends, in cash or otherwise, or make
any other distributions on or in respect of its Capital Stock, (b) pay any
Indebtedness owed to the Company or any other Restricted Subsidiary, (c) make
Investments in the Company or any other Restricted Subsidiary, (d) transfer any
of its properties or assets to the Company or any other Restricted Subsidiary or
(e) guarantee any Indebtedness of the Company or any other Restricted
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of (i) any agreement in effect on the date of the Indenture and listed on
or of a type described in a schedule attached to the Indenture, (ii) applicable
law, (iii) customary non-assignment provisions of any lease governing a
leasehold interest of the Company or any Restricted Subsidiary, (iv) any
agreement or other instrument of a Person acquired by the Company or any
Restricted Subsidiary in existence at the time of such acquisition (but not
created in contemplation thereof), which encumbrance or restriction is not
applicable to any Person, or the properties or assets of any Person, other than
the Person, or the property or assets of the Person, so acquired, (v) the
refinancing of Indebtedness incurred under the agreements listed on or of type
described in a schedule attached to the Indenture, so long as such encumbrances
or restrictions are no less favorable to the Company or any Restricted
Subsidiary than those contained in the respective agreement as in effect on the
date of the Indenture, (vi) pursuant to the Indenture or the Notes, (vii) any
Bank Facility if such encumbrance or restriction applies only (x) to amounts
which at any point in time (other than during such periods as are described in
clause (y)) (1) exceed amounts due and payable (or which are to become due and
payable within 30 days) in respect of the Notes or the Indenture for interest,
premium and principal (after giving effect to any realization by the Company
under any applicable Currency Agreement), or (2) if paid, would result in an
event described in the following clause (y) of this sentence, or (y) during the
pendency of any event that causes, permits or, after notice or lapse of time,
would cause or permit the holder(s) of the Indebtedness governed by such
agreement or instrument to declare any such Indebtedness to be immediately due
and payable or require cash collateralization or cash cover for such
88
Indebtedness for so long as such cash collateralization or cash cover has not
been provided, or (viii) any arrangement arising or agreed to in the ordinary
course of business, not relating to any Indebtedness that does not individually,
or together with all such encumbrances or restrictions, detract from the value
of property or assets of the Company or any Restricted Subsidiary in any manner
material to the Company or any Restricted Subsidiary.
SECTION 1020. Limitation on Investments in Unrestricted Subsidiaries.
------------------------------------------------------
The Company shall not make, and shall not permit any of its Restricted
Subsidiaries to make, any Investments in Unrestricted Subsidiaries if, at the
time thereof, the aggregate amount of such Investments would exceed the amount
of Restricted Payments then permitted to be made pursuant to the "Limitation on
Restricted Payments" covenant (Section 1012) (calculated as if no prior
Investments in Unrestricted Subsidiaries had been made by the Company or any
Restricted Subsidiary). Any Investments in Unrestricted Subsidiaries permitted
to be made pursuant to this covenant (i) shall be treated as the making of a
Restricted Payment in calculating the amount of Restricted Payments made by the
Company or a Restricted Subsidiary, without duplication, under the provisions of
clause (iv) of paragraph (a) of the "Limitations on Restricted Payments"
covenant (Section 1012) and (ii) may be made in cash or property (if made in
property, the fair market value thereof as determined by the Board of Directors
of the Company (whose determination shall be conclusive and evidenced by a Board
Resolution) shall be deemed to be the amount of such Investment for the purpose
of clause (i)).
SECTION 1021. Business of the Company
-----------------------
The Company shall not, and shall not permit any Restricted Subsidiary
to, engage in any business other than an ATM Network Business.
SECTION 1022. Waiver of Certain Covenants.
---------------------------
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Section 803 or Sections 1007 through
1021, inclusive, if before or after the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Notes, by Act of such
Holders, waive such compliance in such instance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
89
ARTICLE ELEVEN
REDEMPTION OF NOTES
SECTION 1101. Right of Redemption.
-------------------
The Notes may be redeemed at the election of the Company, in whole at
any time or from time to time in part, on or after ., 2002, subject to the
conditions and at the Redemption Prices specified in the form of Note, together
with accrued interest to the Redemption Date.
At any time or from time to time prior to ., 2001 the Company may
redeem within 60 days of one or more Equity Offerings up to 33 1/3% of the
aggregate principal amount at maturity of the originally issued Notes with all
or a portion of the net proceeds of such offering, at a redemption price equal
to .% of the Accreted Value thereof as of the Redemption Date, together with
accrued and unpaid interest, if any, to the Redemption Date (subject to the
right of holders of record on relevant record dates to receive interest due on
relevant Interest Payment Dates); provided that immediately after giving effect
--------
to any such redemption, at least 66 2/3% aggregate principal amount at maturity
of the originally issued Notes remains outstanding.
In addition, (i) upon the occurrence of a Change of Control, each
holder of Notes shall have the right to require that the Company purchase such
Holder's Notes, in whole or in part and in integral multiples of DM 1,000
principal amount at maturity, at a purchase price of 101% of the Accreted Value
thereof of the Notes, together with accrued and unpaid interest, if any, to the
date of redemption, and (ii) upon the occurrence of an Asset Sale, the Company
may be obligated to make an offer to purchase all or a portion of the
outstanding Notes at a price of 100% of the Accreted Value thereof, together
with accrued and unpaid interest, if any, to the date of purchase (subject to
the right of holders of record on relevant record dates to receive interest due
on relevant Interest Payment Dates).
SECTION 1102. Applicability of Article.
------------------------
Redemption of Notes at the election of the Company or otherwise, as
permitted or required by any provision of this Indenture, shall be made in
accordance with such provision and this Article.
SECTION 1103. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Notes pursuant to Section
1101 shall be evidenced by a Board Resolution. In case of any redemption at the
election of the Company, the Company shall, at least 60 days prior to the
Redemption Date fixed by the Company (unless a shorter notice shall be
satisfactory to the Trustee), notify the Trustee of such Redemption Date and of
the principal amount of Notes to be redeemed and shall
90
deliver to the Trustee such documentation and records as shall enable the
Trustee to select the Notes to be redeemed pursuant to Section 1104.
SECTION 1104. Selection by Trustee of Notes to Be Redeemed.
--------------------------------------------
If less than all the Notes are to be redeemed, the particular Notes to
be redeemed shall be selected not more than 60 days prior to the Redemption Date
by the Trustee, from the Outstanding Notes not previously called for redemption,
in compliance with any applicable rules of the Luxembourg Stock Exchange or the
principal U.S. securities exchange, if any, on which the Notes are listed or, if
the Notes are not listed on the Luxembourg Stock Exchange or a U.S. securities
exchange or if there are no applicable rules, on a pro rata basis, by lot or by
--- ----
such other method as the Trustee shall deem fair and appropriate and which may
provide for the selection for redemption of portions of the principal of Notes;
provided, however, that no note of DM 1,000 in principal amount at maturity or
- -------- -------
less will be redeemed in part.
The Trustee shall promptly notify the Company in writing 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, all provisions relating to redemption of Notes shall relate, in the
case of any Note redeemed or to be redeemed only in part, to the portion of the
principal amount of such Note which has been or is to be redeemed.
SECTION 1105. Notice of Redemption.
--------------------
Notice of redemption shall be given in the manner provided for in
Section 106 at least 30 but not more than 60 days prior to the Redemption Date,
to each Holder of Notes to be redeemed.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest to the
Redemption Date payable as provided in Section 1107, if any,
(3) if less than all Outstanding Notes are to be redeemed, the
identification (and, in the case of a partial redemption, the principal
amounts) of the particular Notes to be redeemed,
(4) in case any Note is to be redeemed in part only, the notice which
relates to such Note shall state that on and after the Redemption Date,
upon
91
surrender of such Note, the holder will receive, without charge, a new Note
or Notes of authorized denominations for the principal amount thereof
remaining unredeemed,
(5) that on the Redemption Date the Redemption Price (and accrued
interest, if any, to the Redemption Date payable as provided in Section
1107) will become due and payable upon each such Note, or the portion
thereof, to be redeemed, and that interest thereon will cease to accrue on
and after said date,
(6) the place or places where such Notes are to be surrendered for
payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1106. Deposit of Redemption Price.
---------------------------
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and accrued interest on, all
the Notes which are to be redeemed on that date.
SECTION 1107. Notes Payable on Redemption Date.
--------------------------------
Notice of redemption having been given as aforesaid, the Notes so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified (together with accrued interest, if any, to
the Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) cash
interest, or original issue discount, as the case may be, will cease to accrue
on such Notes or the portions thereof called for redemption and accepted for
payment. Upon surrender of any such Note for redemption in accordance with said
notice, such Note shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; provided, however, that
-------- -------
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Notes, or one or more Predecessor
Notes, registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Note called for redemption shall not be so paid upon surrender
thereof for redemption, the principal (and premium, if any) shall, until paid,
bear interest from the Redemption Date at the rate borne by the Notes.
92
SECTION 1108. Notes Redeemed in Part.
----------------------
Any Note which is to be redeemed only in part pursuant to the
provisions of this Article shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 1002 (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed by
the Holder thereof or such Holder's attorney duly authorized in writing), and
the Company shall execute, and the Trustee shall authenticate and deliver to the
Holder of such Note without service charge, a new Note or Notes, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Note so surrendered.
93
ARTICLE TWELVE
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1201. Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance.
- ----------
The Company may, at its option by Board Resolution, at any time, with
respect to the Notes, elect to have either Section 1202 or Section 1203 be
applied to all Outstanding Notes upon compliance with the conditions set forth
below in this Article Twelve.
SECTION 1202. Defeasance and Discharge.
------------------------
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1202, the Company shall be deemed to have been
discharged from its obligations with respect to all Outstanding Notes on the
date the conditions set forth in Section 1204 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall
be deemed to have paid and discharged the entire Indebtedness represented by the
Outstanding Notes, which shall thereafter be deemed to be "Outstanding" only for
the purposes of Section 1205 and the other Sections of this Indenture referred
to in (A) and (B) below, 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 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 fund described in Section
1204 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 Sections
304, 306, 311, 1002 and 1003, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article Twelve. Subject to
compliance with this Article Twelve, the Company may exercise its option under
this Section 1202 notwithstanding the prior exercise of its option under Section
1203 with respect to the Notes.
SECTION 1203. Covenant Defeasance.
-------------------
Upon the Company's exercise under Section 1201 of the option
applicable to this Section 1203, the Company shall be released from its
obligations under any covenant contained in Section 801(2), 801(3) and Section
803 and in Sections 1007 through 1022 with respect to the Outstanding Notes on
and after the date the conditions set forth below are satisfied (hereinafter,
"covenant defeasance"), and the Notes shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with such
covenants, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to the Outstanding Notes, the
94
Company may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in any such covenant, whether directly
or indirectly, by reason of any reference elsewhere herein to any such covenant
or by reason of any reference in any such covenant to any other provision herein
or in any other document and such omission to comply shall not constitute a
Default or an Event of Default under Section 501(3), but, except as specified
above, the remainder of this Indenture and such Notes shall be unaffected
thereby.
SECTION 1204. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of either Section
1202 or Section 1203 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 607 who shall agree to comply with the provisions of this
Article Twelve applicable to it) as trust 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 such Notes, cash in
Deutsche Marks or U.S. Dollars, or a combination thereof, in such amounts
as will be sufficient, in the opinion of an internationally recognized firm
of independent public accountants or an internationally recognized
investment banking firm, 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, (i) the
principal of, premium, if any, and interest on the Outstanding Notes on the
Stated Maturity (or Redemption Date, if applicable) of such principal,
premium, if any, or installment of interest. Before such a deposit, the
Company may give to the Trustee, in accordance with Section 1103 hereof, a
notice of its election to redeem all of the Outstanding Notes at a future
date in accordance with Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given
effect in applying the foregoing.
(2) No Default or Event of Default with respect to the Notes shall
have occurred and be continuing on the date of such deposit or, insofar as
paragraphs (6) and (7) of Section 501 hereof are concerned, at any time
during the period ending on the first day following the date that is six
months after such deposit (it being understood that this condition shall
not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
95
(4) In the case of an election under Section 1202, the Company shall
have delivered to the Trustee an Opinion of Counsel in the United States
stating that (x) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling, or (y) since [date of final
prospectus], there has been a change in the applicable U.S. federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of the Outstanding Notes will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of
such defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(5) In the case of an election under Section 1203, 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 U.S. federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(6) The Company shall have delivered to the Trustee an Opinion of
Counsel in the United States to the effect that after the first day
following six months after the date of such deposit or after the date such
opinion is delivered, the trust funds will not be subject to the effect of
any applicable bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally.
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of the Notes over the other creditors of
the Company with the intent of hindering, delaying or defrauding creditors
of the Company.
(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 defeasance under Section 1202
or the covenant defeasance under Section 1203 (as the case may be) have
been complied with.
SECTION 1205. Deposited Money and U.S. Government Obligations to Be
-----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions.
- ---------------------------------------------
Subject to the provisions of the last paragraph of Section 1003, all
cash deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 1205, the "Trustee") pursuant to Section 1204 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 (including the Company
acting as its own 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
96
(and premium, if any) and 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 U.S. Governmental Obligations
deposited pursuant to Section 1204 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of the Outstanding Notes.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money held by it as provided in Section 1204 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 defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1206. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1205 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and the Notes
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 1202 or 1203, as the case may be, until such time as the Trustee or
Paying Agent is permitted to apply all such money in accordance with Section
1205; provided, however, that if the Company makes any payment of principal of
-------- -------
(or premium, if any) or interest on any Note following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Notes to receive such payment from the money held by the Trustee or Paying
Agent.
This Indenture may be signed in any number of counterparts each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
97
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
EURONET SERVICES INC.
[SEAL] By
-----------------------------------
Name:
Title:
Attest:
---------------------
Name:
Title:
STATE STREET BANK AND TRUST
COMPANY
[SEAL] By
-----------------------------------
Name:
Title:
Attest:
---------------------
Name:
Title: