Exhibit 10.3
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Issuer
CITIBANK, N.A. (London Branch)
Trustee
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Indenture
SENIOR DISCOUNT NOTES DUE 2009
Dated as of October 29, 1999
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$478,000,000 13 3/8% Senior Discount Notes Due 2009
Pound Sterling 191,000,000 13 3/8% Senior Discount Notes Due 2009
TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.................................................... 1
SECTION 1.2 Compliance Certificates and Opinions........................... 40
SECTION 1.3 Form of Documents Delivered to Trustee......................... 40
SECTION 1.4 Acts of Holders................................................ 41
SECTION 1.5 Notices........................................................ 43
SECTION 1.6 Notice to Holders; Waiver...................................... 44
SECTION 1.7 Effect of Headings and Table of Contents....................... 45
SECTION 1.8 Successors and Assigns......................................... 45
SECTION 1.9 Separability Clause............................................ 45
SECTION 1.10 Benefits of Indenture.......................................... 45
SECTION 1.11 Governing Law.................................................. 45
SECTION 1.12 Conflict with Trust Indenture Act.............................. 46
SECTION 1.13 Legal Holidays................................................. 46
SECTION 1.14 No Personal Liability of Board Members, Officers,
Employees and Shareholders..................................... 47
SECTION 1.15 Independence of Covenants...................................... 47
SECTION 1.16 Exhibits....................................................... 47
SECTION 1.17 Counterparts................................................... 47
SECTION 1.18 Duplicate Originals............................................ 47
SECTION 1.19 Agent for Service; Submission to Jurisdiction;
Waiver of Immunities........................................... 47
SECTION 1.20 Judgment Currency.............................................. 48
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally................................................ 49
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms................................................ 50
SECTION 3.2 Denominations.................................................. 50
SECTION 3.3 Execution, Authentication, Delivery and Dating................. 51
SECTION 3.4 Temporary Securities........................................... 54
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SECTION 3.5 Registration, Registration of Transfer and
Exchange....................................................... 55
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities............... 56
SECTION 3.7 Payment of Interest; Interest Rights Preserved................. 57
SECTION 3.8 Persons Deemed Owners.......................................... 58
SECTION 3.9 Cancellation................................................... 59
SECTION 3.10 Computation of Interest........................................ 59
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers.................................. 59
SECTION 3.12 Book-Entry Provisions for Global Securities, Cer-
tificated Securities........................................... 59
SECTION 3.13 Transfer and Exchange of Securities............................ 60
SECTION 3.14 Special Transfer Provisions.................................... 67
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture........................ 68
SECTION 4.2 Application of Trust Money..................................... 70
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.............................................. 70
SECTION 5.2 Acceleration of Maturity; Rescission and Annul-
ment........................................................... 72
SECTION 5.3 Collection of Indebtedness and Suits for Enforce-
ment by Trustee................................................ 73
SECTION 5.4 Trustee May File Proofs of Claim............................... 74
SECTION 5.5 Trustee May Enforce Claims Without Possession
of Securities.................................................. 75
SECTION 5.6 Application of Money Collected................................. 75
SECTION 5.7 Limitation on Suits............................................ 75
SECTION 5.8 Unconditional Right of Holders to Receive Princi-
pal, Premium and Interest...................................... 76
SECTION 5.9 Restoration of Rights and Remedies............................. 76
SECTION 5.10 Rights and Remedies Cumulative................................. 77
SECTION 5.11 Delay or Omission Not Waiver................................... 77
SECTION 5.12 Control by Holders............................................. 77
SECTION 5.13 Waiver of Past Defaults........................................ 78
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SECTION 5.14 Waiver of Stay or Extension Laws............................... 78
ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities............................ 79
SECTION 6.2 Notice of Default.............................................. 80
SECTION 6.3 Certain Rights of Trustee...................................... 80
SECTION 6.4 Trustee Not Responsible for Issuance of Securities............ 82
SECTION 6.5 May Hold Securities............................................ 82
SECTION 6.6 Money Held in Trust............................................ 82
SECTION 6.7 Compensation and Reimbursement................................. 82
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflict-
ing Interests.................................................. 83
SECTION 6.9 Resignation and Removal; Appointment of Succes-
sor............................................................ 84
SECTION 6.10 Acceptance of Appointment by Successor......................... 86
SECTION 6.11 Merger, Conversion, Consolidation or Succession
to Business.................................................... 86
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders................... 87
SECTION 7.2 Reports by Trustee............................................. 87
SECTION 7.3 Reports by Company............................................. 88
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms........... 88
SECTION 8.2 Successor Substituted.......................................... 89
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders.......................... 89
SECTION 9.2 Indentures with Consent of Holders............................. 90
SECTION 9.3 Execution of Indenture......................................... 91
SECTION 9.4 Effect of Indentures........................................... 92
SECTION 9.5 Conformity with Trust Indenture Act............................ 92
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SECTION 9.6 Reference in Securities to Indentures.......................... 92
SECTION 9.7 Notice of Indentures........................................... 92
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal, Premium, if Any, and Inter-
est............................................................ 93
SECTION 10.2 Maintenance of Office or Agency................................ 93
SECTION 10.3 Money for Security Payments to Be Held in Trust................ 94
SECTION 10.4 Corporate Existence............................................ 96
SECTION 10.5 Payment of Taxes and Other Claims.............................. 96
SECTION 10.6 Maintenance of Properties...................................... 96
SECTION 10.7 Insurance...................................................... 97
SECTION 10.8 Provision of Financial Statements.............................. 97
SECTION 10.9 Statement by Officers as to Default............................ 98
SECTION 10.10 Purchase of Securities upon Change of Control.................. 98
SECTION 10.11 Limitation on Incurrence of Additional Indebted-
ness and Disqualified Capital Stock............................ 102
SECTION 10.12 Limitation on Restricted Payments.............................. 105
SECTION 10.13 Limitation on Dividend and Other Payment Re-
strictions Affecting Subsidiaries.............................. 107
SECTION 10.14 Limitation on Liens Securing Indebtedness...................... 109
SECTION 10.15 Limitation on Issuances of Guarantees by Subsid-
iaries......................................................... 109
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock.............. 110
SECTION 10.17 Limitation on Transactions with Affiliates..................... 115
SECTION 10.18 Additional Amounts............................................. 115
SECTION 10.19 Waiver of Stay, Extension or Usury Laws........................ 118
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption............................................ 119
SECTION 11.2 Applicability of Article....................................... 121
SECTION 11.3 Election to Redeem; Notice to Trustee.......................... 121
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.............. 121
SECTION 11.5 Notice of Redemption........................................... 121
SECTION 11.6 Deposit of Redemption Price.................................... 122
SECTION 11.7 Securities Payable on Redemption Date.......................... 122
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SECTION 11.8 Securities Redeemed in Part.................................... 123
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Cove-
nant Defeasance................................................ 123
SECTION 12.2 Defeasance and Discharge....................................... 123
SECTION 12.3 Covenant Defeasance............................................ 124
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance................ 125
SECTION 12.5 Deposited Money and U.S. Government Securities
to Be Held in Trust; Other Miscellaneous Provi-
sions.......................................................... 126
SECTION 12.6 Reinstatement.................................................. 127
EXHIBIT A.......................................................................... A-1
EXHIBIT B.......................................................................... B-1
EXHIBIT C.......................................................................... C-1
EXHIBIT D.......................................................................... D-1
EXHIBIT E.......................................................................... E-1
EXHIBIT F.......................................................................... F-1
EXHIBIT G.......................................................................... G-1
EXHIBIT H.......................................................................... H-1
EXHIBIT I.......................................................................... I-1
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INDENTURE, dated as of October 29, 1999 by and between United Pan-
Europe Communications N.V., a public limited liability company organized and
existing under the laws of The Netherlands (herein called the "Company"), having
its principal office at Fred. Roeskestraat 123, 1076 EE Amsterdam, The
Netherlands, and Citibank, N.A. (London Branch), as Trustee (herein called the
"Trustee"). Each party agreed as follows for the benefit of the other party and
for the equal and rateable benefit of the Holders (as defined below) of the
Company's 13 3/8% Senior Discount Notes due 2009 denominated in U.S. Dollars and
13 3/8% Senior Discount Notes due 2009 denominated in Euros:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions. For all purposes of this Indenture,
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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 SEC adopted under the Trust Indenture Act;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with "GAAP" as defined in this section
1.1;
(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, paragraph or other subdivision; and
(e) unless otherwise indicated, references to Articles, Sections,
paragraphs or other subdivisions are references to such Articles, Sections,
paragraphs or other subdivisions of this Indenture.
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"Acceleration Notice" has the meaning set forth in Section 5.2.
"Accreted Value" means, as of any date of determination, (i) prior to
November 1, 2004, the sum (rounded to the nearest whole dollar) of (a) the
initial offering price ($523.06 per $1,000 in principal amount at maturity of
Dollar Denominated Securities and pound sterling 523.06 per pound sterling 1,000
in principal amount at maturity of Euro Denominated Securities) of the Senior
Discount Notes of the applicable series and (b) the portion of the excess of the
principal amount of Senior Discount Notes of the applicable series over such
initial offering price which shall have been accreted thereon through such date,
such amount to be so accreted on a daily basis at the rate of 13 3/8% compounded
semi-annually on each May 1 and November 1 from the date of issuance of the
Senior Discount Notes through the date of determination, and (ii) on and after
November 1, 2004, the principal amount at maturity of Senior Discount Notes of
the applicable series.
"Acquired Indebtedness" means Indebtedness (including Disqualified
Capital Stock) of any Person existing at the time such Person becomes a
Subsidiary of the Company, including by designation, or is merged or
consolidated into or with the Company or one of its Subsidiaries.
"Acquisition" means the purchase or other acquisition of any Person or
all or substantially all the assets of any Person by any other Person, whether
by purchase, merger, consolidation, or other transfer, and whether or not for
consideration.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Additional Amounts" has the meaning specified in Section 10.18.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Company. For
purposes of this definition, the term "control" means the power to direct the
management and policies of a Person, directly or through one or more
intermediaries, whether through the ownership of voting securities, by contract,
or otherwise; provided that with respect to ownership interest in the Company
and its Subsidiaries, a Beneficial Owner of 10% or more of the total voting
power normally entitled to
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vote in the election of directors, managers or trustees, as applicable, shall
for such purposes be deemed to constitute control.
"Agent Member" means, with respect to any Depositary, any member of,
or participant in, such Depositary.
"Applicable Procedures" has the meaning set forth in Section
3.13(b)(ii).
"Annualized Consolidated EBITDA" means Consolidated EBITDA for the
Reference Period multiplied by four.
"Asset Acquisition" means (i) an Investment or capital contribution
(by means of transfers of cash or other property to others or payments for
property or services of the account or use of others, or otherwise) by the
Company or any Subsidiary in any other Person, or any acquisition or purchase of
Capital Stock of another Person by the Company or any Subsidiary, or (ii) an
acquisition by the Company or any Subsidiary of the property and assets (other
than Capital Stock) of any Person other than the Company or any Subsidiary which
constitute substantially all of a division, operating unit or line of business
of such Person or which is otherwise outside the ordinary course of business.
"Asset Sale" has the meaning set forth in Section 10.16.
"Average Life" means, as of the date of determination, with respect to
any security or instrument, the quotient obtained by dividing (1) the sum of the
products (a) of the number of years from the date of determination to the date
or dates of each successive scheduled principal (or redemption) payment of such
security or instrument and (b) the amount of each such respective principal (or
redemption) payment by (2) the sum of all such principal (or redemption)
payments.
"Beneficial Owner" or "beneficial owner" for purposes of the
definition of "Change of Control" and "Affiliate" has the meaning attributed to
it in Rules 13d-3 and 13d-5 under the Exchange Act (as in effect on the Issue
Date), whether or not applicable, except that a "person" shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time.
3
"Board Resolution" means a copy of a resolution certified by a
managing director or other authorized officer, assistant officer or
representative of the Company to have been duly adopted by the Supervisory Board
of the Company 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 New York, New York
and Amsterdam, The Netherlands are authorized or obligated by law or executive
order to close.
"Capital Contribution" means any contribution to the equity of the
Company from a direct or indirect parent of the Company for which no
consideration other than the issuance of Qualified Capital Stock is paid.
"Capitalized Lease Obligation" means, as to any Person, the
obligations of such Person under a lease that are required to be classified and
accounted for as capital lease obligations under GAAP and, for purposes of this
definition, the amount of such obligations at any date shall be the capitalized
amount of such obligations at such date, determined in accordance with GAAP.
"Capital Stock" means, with respect to any Corporation, any and all
shares, interests, rights to purchase (other than convertible or exchangeable
Indebtedness that is not itself otherwise capital stock), warrants, options,
participations or other equivalents of or interests (however designated) in
stock issued by that Corporation.
"Cash Equivalent" means:
(1) securities issued or directly and fully guaranteed or insured by (i)
the United States of America or any agency or instrumentality thereof or
(ii) any member of the European Economic Area or Switzerland, or any,
agency or instrumentality thereof provided that such country, agency or
instrumentality has a credit rating at least equal to that of the United
States of America (provided that, in each case, the full faith and credit
of such respective nation is pledged in support thereof), or
(2) time deposits and certificates of deposit and commercial paper issued
by the parent Corporation of any domestic (United States) commercial bank
4
of recognized standing having capital and surplus in excess of $500,000,000
(or the foreign currency equivalent thereof), or
(3) commercial paper issued by others rated at least A-2 or the equivalent
thereof by Standard & Poor's Corporation or at least P-2 or the equivalent
thereof by Moody's Investors Service, Inc.
and in the case of each of (1), (2), and (3) maturing within one year after the
date of acquisition, or
(4) Euro or Dollar time deposits with maturities of six months or less from
the date of acquisition, bankers' acceptances with maturities not exceeding
six months, and overnight bank deposits, in each case with any domestic
(United States) commercial bank (including the Trustee) having capital and
surplus in excess of $500,000,000 (or the foreign currency equivalent
thereof) and a Keefe Bank Watch Rating of "B" or better; provided, in the
case of (1) through (4), that with respect to any non-domestic Person, Cash
Equivalents shall also mean those investments that are comparable to
clauses (ii) and (iv) above in such Person's country of organization or
country where it conducts business operations.
"Cedelbank" means Cedelbank.
"Certificated Security" means any certificated Security in fully
registered definitive form.
"Change of Control" means any merger or consolidation of the Company
with or into any Person or any sale, transfer or other conveyance, whether
direct or indirect, of all or substantially all of the Company's assets, on a
Consolidated basis, in one transaction or a series of related transactions, if,
immediately after giving effect to such transaction(s), either
(A) any "person" or "group" (other than the Parent or any of the
Principals) is or becomes the "beneficial owner", directly or indirectly, of
more than 35% of the total voting power of all classes of the Company's
securities in the aggregate normally entitled to vote in the election of
directors, managers, or trustees, as applicable, of the transferee(s) or
surviving entity or entities and such "person" or "group" beneficially owns
(after giving effect to such transaction) a greater percentage of the total
voting power than is at that time beneficially owned by Parent and
5
the Principals (in the aggregate) and none of the Parent nor any of the
Principals has the right or ability by voting power, contract or otherwise to
elect or nominate for elections a majority of the Company's Supervisory Board,
or
(B) the Continuing Directors cease for any reason to constitute a
majority of the Supervisory Board of the Company then in office, or
(C) the Company adopts a plan of liquidation (other than a plan of
liquidation as a consequence of which (1) the Parent and the Principals (in the
aggregate) beneficially own at least the same percentage of voting power after
the consummation of such plan as before or otherwise retain the right or
ability, by voting power, to control the Person that acquires the proceeds of
such liquidation and (2) the Person that acquires the substantial majority of
the proceeds of such liquidation shall have assumed by supplemental indenture
the Company's obligations pursuant to this Indenture).
"Common Depositary" means Citivic Nominees Limited, as common
depositary for Euroclear and Cedelbank and depositary for the Euro Denominated
Securities, together with its successors in such capacity.
"Common Stock" of any Person means Capital Stock of the Person that
does not rank prior, as to the payment of dividends or as to the distribution of
assets upon any voluntary or involuntary liquidation, dissolution or winding up
of the Person, to shares of Capital Stock of any other class of the Person.
"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.
"Company Order" or "Company Request" means a written request or order
signed in the name of the Company by a member of the Company's management
board or its supervisory board, the Chief Executive Officer, the President or a
Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee.
"Consolidated Coverage Ratio" of any Person on any date of
determination (the "Transaction Date") means the ratio, on a pro forma basis, of
(a) the
6
aggregate amount of Consolidated EBITDA of such Person attributable to
continuing operations and businesses (exclusive of amounts attributable to
operations and business permanently discontinued or disposed of) for the
Reference Period to (b) the aggregate Consolidated Fixed Charges of such Person
(exclusive of amounts attributable to operations and businesses permanently
discontinued or disposed of, but only to the extent that the obligations giving
rise to such Consolidated Fixed Charges would no longer be obligations
contributing to such Person's Consolidated Fixed Charges subsequent to the
Transaction Date) during the Reference Period; provided that for purposes of
such calculation, (i) Acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date shall
be assumed to have occurred on the first day of the Reference Period, (ii)
transactions giving rise to the need to calculate the Consolidated Coverage
Ratio shall be assumed to have occurred on the first day of the Reference
Period, (iii) the incurrence of any Indebtedness during the Reference Period or
subsequent to the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom to the extent used to refinance or
retire other Indebtedness) shall be assumed to have occurred on the first day of
such Reference Period, and (iv) the Consolidated Fixed Charges of such Person
attributable to interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate shall be computed
on a pro forma basis as if the average rate in effect from the beginning of the
Reference Period to the Transaction Date had been the applicable rate for the
entire period, unless such person or any of its Subsidiaries is a party to an
Interest Swap or Hedging Obligation (which shall remain in effect for the 12-
month period immediately following the Transaction Date) that has the effect of
fixing the interest rate on the date of computation, in which case such rate
(whether higher or lower) shall be used.
"Consolidated Invested Equity Capital" means, with respect to any
Person as of any date, the sum of the Invested Equity Capital of such Person as
of such date and, without duplication, the Invested Equity Capital of each of
its Subsidiaries as of such date. For purposes of calculating the Consolidated
Invested Equity Capital of any Person as of any date, in order to avoid
duplication, the Invested Equity Capital of a Subsidiary of such Person shall
not include any amounts that would be included in the Consolidated Invested
Equity Capital of any equity owner of such Subsidiary, to the extent that such
amounts were utilized by such equity owner prior to such date to permit the
incurrence of Indebtedness pursuant to clauses 2(iii) and (c)(3) of Section
10.11. For example, if a direct Subsidiary of the Company has Consolidated
Invested Equity Capital of $100 and incurs $225 of such Indebtedness, then a
direct or indirect Subsidiary of such Subsidiary will not be
7
deemed to have any Invested Equity Capital based on contributions or loans to it
by such first Subsidiary. In addition, the Invested Equity Capital of a
Subsidiary of a Person will never be considered to be greater than the Invested
Equity Capital of such Person, except as a result of contributions of Invested
Equity Capital to such Subsidiary by third parties.
"Consolidation" means, with respect to any Person, the consolidation
of the accounts of the Subsidiaries with those of such Person, all in accordance
with GAAP; provided that "Consolidation" will not include consolidation of the
accounts of any Unrestricted Subsidiary with the accounts of such Person. The
term "Consolidated" has a correlative meaning to the foregoing.
"Consolidated EBITDA" means, with respect to any Person, for any
period, the Consolidated Net Income of such Person for such period adjusted to
add thereto (to the extent deducted from net revenues in determining
Consolidated Net Income), without duplication, the sum of
(1) Consolidated income tax expense,
(2) Consolidated depreciation and amortization expense,
(3) Consolidated Fixed Charges, and
(4) non-cash stock-based compensation,
less the amount of all cash payments made by such Person or any of its
Subsidiaries during such period to the extent such payments relate to non-cash
charges that were added back in determining Consolidated EBITDA for such period
or any prior period; provided that Consolidated income tax expense, depreciation
and amortization of a Subsidiary that is not a Wholly Owned Subsidiary shall
only be added to the extent of the equity interest of such Person in such
Subsidiary.
"Consolidated Fixed Charges" of any Person means, for any period, the
aggregate amount (without duplication and determined in each case in accordance
with GAAP) of:
(a) interest expensed or capitalized, paid, accrued, or scheduled to
be paid or accrued (including, in accordance with the following sentence,
interest attributable to Capitalized Lease Obligations) of
8
such Person and its Consolidated Subsidiaries during such period, including
(1) original issue discount and non-cash interest payments or accruals on
any Indebtedness, (2) the interest portion of all deferred payment
obligations, and (3) all commissions, discounts and other fees and charges
owed with respect to bankers' acceptances and letters of credit financings
and currency and Interest Swap and Hedging Obligations, in each case to the
extent attributable to such period,
(b) the amount of dividends accrued or payable (or guaranteed) by such
Person or any of its Consolidated Subsidiaries in respect of Preferred
Stock (other than by Subsidiaries of such Person to such Person or such
Person's Wholly Owned Subsidiaries).
For purposes of this definition, (x) interest on a Capitalized Lease
Obligation shall be deemed to accrue at an interest rate reasonably determined
in good faith by the Company to be the rate of interest implicit in such
Capitalized Lease Obligation in accordance with GAAP and (y) interest expense
attributable to any Indebtedness represented by the guaranty by such Person or a
Subsidiary of such Person of an obligation of another Person shall be deemed to
be the interest expense attributable to the Indebtedness guaranteed.
"Consolidated Net Income" means, with respect to any Person for any
period, the net income (or loss) of such Person and its Consolidated
Subsidiaries (determined on a Consolidated basis in accordance with GAAP) for
such period, adjusted to exclude (only to the extent included in computing such
net income (or loss) and without duplication):
(a) all gains (but not losses) which are either extraordinary (as
determined in accordance with GAAP) or are nonrecurring (including any
gain from the sale or other disposition of assets outside the ordinary
course of business or from the issuance or sale of any capital stock),
(b) the net income, if positive, of any Person, other than a Consol-
idated Subsidiary, in which such Person or any of its Consolidated
Subsidiaries has an interest, except to the extent of the amount of
any dividends or distributions actually paid in cash to such Person or
a Consolidated Subsidiary of such Person during such period, but in
any
9
case not in excess of such Person's pro rata equity interest share
of such Person's net income for such period,
(c) the net income or loss of any Person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition, and
(d) the net income, if positive, of any such Person's Consolidated
Subsidiaries to the extent that the declaration or payment of
dividends or similar distributions is not at the time permitted by
operation of the terms of its charter or bylaws or any other
agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation applicable to such Consolidated Subsidiary
other than this Indenture.
"Consolidated Subsidiary" means, for any Person, each Subsidiary
(excluding all Unrestricted Subsidiaries) of such Person (whether now existing
or hereafter created or acquired) the financial statements of which are
Consolidated for financial statement reporting purposes with the financial
statements of such Person in accordance with GAAP.
"Consolidated Tangible Assets" of any Person means the total amount of
assets less applicable reserves and other properly deductible items which under
GAAP would be calculated on a Consolidated balance sheet of the Person and its
Subsidiaries after deducting all goodwill, trademarks, patents, unamortized debt
discount and expense and other like intangibles, which, in each case under GAAP,
would be included on such Consolidated balance sheet.
"Continuing Director" means during any period of 12 consecutive months
after the Issue Date, individuals who at the beginning of any such 12-month
period constituted the Supervisory Board of the Company (together with any new
supervisory directors whose election by the shareholders was from a list of
candidates drawn up by the holder or holders of the Company's priority shares
and new supervisory directors designated in or provided for in an agreement
regarding the merger, consolidation or sale, transfer or other conveyance, of
all or substantially all of the assets of the Company or the Parent, if such
agreement was approved by a vote of such majority of supervisory directors).
"Corporate Trust Office" means the principal corporate trust office of
the Trustee, at which at any particular time its corporate trust business shall
be
10
administered, which office at the date of execution of this Indenture is located
at 11 Old Jewry, London EC2R 8DU, except that, with respect to presentation of
Securities 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.
"Credit Agreement" means the loan and note issuance agreement dated
July 27, 1999 between certain Subsidiaries of the Company and Bank of American
International Limited, CIBC World Markets plc, Citibank, N.A., MeesPierson N.V.,
Paribas, The Royal Bank of Scotland plc, Toronto Dominion Bank Europe Limited
and The Toronto Dominion Bank, including any related notes, guarantees,
collateral documents, instruments and agreements executed in connection
therewith, as such agreement and/or related documents may be amended, restated,
supplemented, renewed, replaced or otherwise modified from time to time whether
or not with the same agent, trustee, representative lenders or Holders, and,
subject to the proviso to the next succeeding sentence, irrespective of any
changes in the terms and conditions thereof. Without limiting the generality of
the foregoing, the term "Credit Agreement" shall include agreements in respect
of Interest Swap and Hedging Obligations with lenders party to the Credit
Agreement and shall also include any amendment, amendment and restatement,
renewal, extension, restructuring, supplement or modification to any Credit
Agreement and all refundings, refinancings and replacements of any Credit
Agreement, including any agreement:
(1) extending the maturity of any Indebtedness incurred thereunder or
contemplated thereby,
(2) adding or deleting borrowers or guarantors thereunder, so long as
borrowers and guarantors may include one or more of the Company and
its Subsidiaries and their respective successors and assigns,
(3) increasing the amount of Indebtedness incurred thereunder or
available to be borrowed thereunder; provided that on the date such
Indebtedness is incurred it would not be prohibited by Section
10.11;or
11
(4) otherwise altering the terms and conditions thereof in a manner
not prohibited by the other terms of this Indenture.
"CT Corporation System" has the meaning specified in Section 1.19.
"Default" means any event that is or with the passage of time or the
giving of notice or both would be an Event of Default.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means the DTC or the Common Depositary, as the case may
be.
"Disqualified Capital Stock" means (a) except as set forth in clause
(b), with respect to any Person, Equity Interests of such Person that, by its
terms or by the terms of any security into which it is convertible, exercisable
or exchangeable, is, or upon the happening of an event or the passage of time or
both would be, required to be redeemed or repurchased (including at the option
of the holder thereof) by such Person or any of its Subsidiaries, in whole or in
part, on or prior to 91 days following the Stated Maturity of the Securities and
(b) with respect to any Subsidiary of the Company, any Equity Interests of such
Subsidiary other than (i) any common equity with no economic preference,
privileges, or redemption or repayment provisions or (ii) preferred stock
convertible into such common equity of such Subsidiary with no payment of
dividends or liquidation preference due or payable thereon on or prior to 91
days following the Stated Maturity of the Securities.
"Dollar Denominated Securities" means the $478,000,000 13 3/8% Senior
Notes, together with the Exchange Dollar Denominated Securities.
"Dollars" or "$" or "U.S. Dollars" means the lawful currency of the
United States of America and, in relation to any amount to be advanced or paid
under this Indenture or the Securities, funds having immediate value.
"Dollar Paying Agent" means an office or agency of the Company where
Dollar Denominated Securities may be presented for payment.
"Dollar Registrar" means an office or agency of the Company in London,
where Dollar Denominated Securities may be presented for registration of
transfer or exchange.
12
"DTC" means the Depository Trust Company, its nominees and successors.
"EEA Government Obligation" means direct non-callable obligations of,
or non-callable obligations guaranteed by, any member nation of the European
Union for the payment of which obligation or guarantee the full faith and credit
of the respective nation is pledged; provided that such nation has a credit
rating at least equal to that of the highest rated member nation of the European
Economic Area.
"Equity Interest" of any Person means any shares, interests,
participations or other equivalents (however designated) in such Person's
equity, and shall in any event include any Capital Stock issued by, or
partnership, participation or membership interests in, such Person.
"Equity Offering" means (i) an underwritten public offering or
floatation of ordinary shares of the Company which has been registered under the
Securities Act, or admitted to listing on the Amsterdam Stock Exchange or its
equivalent in any other European Union jurisdiction, in any case resulting in
Net Cash Proceeds to the Company of at least $100,000,000 (or its foreign
currency equivalent), or (ii) a sale of Qualified Capital Stock of the Company
to any Person which is (or a controlled Affiliate of a Person which is), engaged
principally in a Related Business, resulting in Net Cash Proceeds to the Company
of at least $100,000,000 (or its foreign currency equivalent); provided,
however, that a sale of Qualified Capital Stock of the Company to any subsidiary
of the Company or any Person that is a controlled Affiliate of the Company shall
not be an Equity Offering.
"Euro" or "pound sterling" means the currency adopted by those
countries participating in the third stage of European monetary union.
"Euro Denominated Securities" means the pound sterling 191,000,000 13
3/8% Senior Notes, together with the Exchange Euro Denominated Securities.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear System.
"European Economic Area" means the member nations of the European
Economic Area pursuant to the Oporto Agreement on the European Economic Area
dated May 2, 1992 as amended.
13
"European Legal Tender" means legal tender in the countries
constituting the European Monetary Union, EEA Government Obligations or a
combination thereof.
"European Union" means the member nations to the third stage of
economic and monetary union pursuant to the treaty of Rome establishing the
European Community, as amended by the Treaty on European Union, signed at
Maastricht on February 7, 1992.
"Euro Paying Agent" means an office or agency of the Company where
Euro Denominated Securities may be presented for payment.
"Euro Registrar" means an office or agency of the Company where Euro
Denominated Securities may be presented for registration of transfer or
exchange.
"Event of Default" has the meaning set forth under Section 5.1.
"Event of Loss" means, with respect to any property or asset, any (1)
loss, destruction or damage of such property or asset or (2) any condemnation,
seizure or taking, by exercise of the power of eminent domain or otherwise, of
such property or asset, or confiscation or requisition of the use of such
property or asset.
"Exchange Act" means the United States Securities Exchange Act of
1934, as amended (or any successor act), and the rules and regulations
thereunder (or respective successors thereto).
"Exchange Dollar Denominated Securities" means the Dollar Denominated
Securities to be issued pursuant to this Indenture in connection with the offer
to exchange Securities for Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
"Exchange Euro Denominated Securities" means the Euro Denominated
Securities to be issued pursuant to this Indenture in connection with the offer
to exchange Securities for Initial Securities that may be made by the Company
pursuant to the Registration Rights Agreement.
14
"Exchange Offer" means the exchange registered with the SEC to
exchange Initial Securities for Exchange Securities pursuant to the terms of the
Registration Rights Agreement.
"Exchange Offer Registration Statement" means an Exchange Offer
Registration Statement as defined in the Registration Rights Agreement.
"Exchange Securities" means the Exchange Dollar Denominated Securities
and the Exchange Euro Denominated Securities.
"Exempted Affiliate Transaction" means (i) Restricted Payments
comprised of pro rata dividends paid in cash on any class of Equity Interests
and made in compliance with this Indenture, (ii) transactions, at arms-length
and as so set forth in a Board Resolution, between or among holders of any
Equity Interest of any Subsidiary of the Company and such Subsidiary, so long as
such holder is not otherwise an Affiliate of the Company, (iii) transactions
between or among the Company, and its Subsidiaries, (iv) the Company or any of
its Subsidiaries entering into or performing any employment agreement, stock
option agreement or other agreement relating to the terms of employment,
compensation or termination of employment in the ordinary course of business of
the Company or such Subsidiary, (v) any contract, agreement, arrangement or
transaction with any Affiliate in effect as of the Issue Date and any amendment,
waiver, variation or other modification in respect of any such contract,
agreement, arrangement or transaction so long as such amendment, waiver,
variation or other modification is not disadvantageous to the Company and its
Subsidiaries in any material respect, (vi) Restricted Payments and Investments
permitted under Section 10.12, (vii) transactions with customers, clients,
suppliers, or purchasers or sellers of goods or services, in each case in the
ordinary course of business and otherwise in compliance with the terms of this
Indenture which are fair to the Company and its Subsidiaries, in the reasonable
determination of the Company or Subsidiary, as the case may be, or are on terms
no less favorable to the Company or the Subsidiary than those that could be
obtained in a comparable arm's length transaction with an entity that is not an
Affiliate or Principal and is in the best interests of the Company or the
Subsidiary, and (viii) transactions with respect to network capacity or dark or
lit communications fiber capacity or telecommunications conduit between the
Company or any Subsidiary and any Unrestricted Subsidiary or other Affiliate and
joint sales and marketing pursuant to an agreement or agreements between the
Company or any Subsidiary and any Unrestricted Subsidiary or other Affiliate,
provided that in the case of this clause (viii), such agreements are on terms
that are no less favorable to the Company or the Subsidiary
15
than those that could be obtained in an arm's-length transaction with an entity
that is not an Affiliate or Principal and are in the best interests of the
Company and the Subsidiary entered into in the ordinary course of business.
"Existing Agreements" means (i) any and all instruments, as in effect
on the Issue Date, between the Company or any of its Subsidiaries and a
commercial lending institution or institutions, which makes borrowing of funds
available to the Company or any such Subsidiary from such institution or
institutions and (ii) any replacements of the instruments in clause (i) entered
into by the respective Subsidiary that was party to the instrument so replaced
or their respective successors and a commercial lending institution or
institutions for an amount up to the maximum amount of the instrument so
replaced.
"Existing Indebtedness" means the Indebtedness of the Company and its
Subsidiaries (other than Indebtedness under the Credit Agreement) in existence
on the Issue Date, reduced to the extent such amounts are repaid.
"Federal Bankruptcy Code" means the Bankruptcy Act of Title 11 of the
United States Code, as amended from time to time.
"GAAP" means United States generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as approved by a significant segment of the
accounting profession in the United States as in effect on the Issue Date.
"Global Security" means a Regulation S Global Security (or
Unrestricted Global Security) or a Restricted Global Security.
"Guarantee" means any obligation, contingent or otherwise, of any
Person directly or indirectly guaranteeing any Indebtedness or other obligation
of any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation of such other Person (whether arising by virtue
of partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) or (ii) entered into for purposes of assuring
in any other manner the obligee of such
16
Indebtedness or other obligation of the payment thereof or to protect such
obligee against loss in respect thereof (in whole or in part); provided that the
term "Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as verb has a
corresponding meaning.
"Guarantor" is defined to mean any Person obligated under a Guaran-
tee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" of any Person means, without duplication,
(a) all liabilities and obligations, contingent or otherwise, of any
Person, to the extent such liabilities and obligations would appear as
a liability upon the Consolidated balance sheet of such Person in
accordance with GAAP, (1) in respect of borrowed money (whether or not
the recourse of the lender is to the whole of the assets of such
Person or only to a portion thereof), (2) evidenced by bonds, notes,
debentures or similar instruments, (3) representing the balance
deferred and unpaid of the purchase price of any property or services,
except (other than accounts payable or other obligations to trade
creditors which have remained unpaid for greater than 90 days past
their original due date) those incurred in the ordinary course of its
business that would constitute ordinarily a trade payable to trade
creditors;
(b) all liabilities and obligations, contingent or otherwise, of such
Person (1) evidenced by bankers' acceptances or similar instruments
issued or accepted by banks, (2) relating to any Capitalized Lease
Obligation, or (3) evidenced by a letter of credit or a reimbursement
obligation of such Person with respect to any letter of credit (other
than obligations with respect to letters of credit securing
obligations (other than obligations described in (a)(1) through (3)
above) entered into in the ordinary course of business of such Person
to the extent such letters of credit are not drawn upon);
(c) all net obligations of such Person under Interest Swap and
Hedging Obligations;
17
(d) all liabilities and obligations of others of the kinds described
in the preceding clauses (a), (b) or (c) that such Person has
guaranteed or provided credit support or that is otherwise its legal
liability or which are secured by any assets or property of such
Person;
(e) any and all deferrals, renewals, extensions, refinancing and
refundings (whether direct or indirect) of, or amendments,
modifications or supplements to, any liability of the kind described
in any of the preceding clauses (a), (b), (c) or (d), or this clause
(e), whether or not between or among the same parties; and
(f) all Disqualified Capital Stock of such Person (measured 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
Disqualified Capital Stock which does not have a fixed repurchase
price shall be calculated in accordance with the terms of such
Disqualified Capital Stock as if such Disqualified Capital Stock were
purchased on any date on which Indebtedness shall be required to be
determined pursuant to this Indenture, and if such price is based
upon, or measured by, the fair market value of such Disqualified
Capital Stock, such fair market value to be determined in good faith
by the Supervisory Board of the Company.
The amount of any Indebtedness outstanding as of any date shall be (1)
the accreted value thereof, in the case of any Indebtedness issued
with original issue discount, but the accretion of original issue
discount in accordance with the original terms of Indebtedness issued
with an original issue discount will not be deemed to be an incurrence
and (2) the principal amount thereof, excluding any interest thereon,
in the case of any other 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.
18
"Initial Purchasers" means, with respect to the Initial Securities
issued pursuant to this Indenture on the Issue Date, each of Morgan Stanley &
Co. International Limited, Goldman Sachs International, Donaldson, Lufkin &
Jenrette International, Merrill Lynch International and TD Securities (USA)
Inc.
"Initial Securities" means the $478,000,000 13 3/8% Senior Discount
Notes due 2009 and the pound sterling 191,000,000 13 3/8% Senior Discount Notes
due 2009, issued under this Indenture on the Issue Date.
"Institutional Accredited Investor" means an institutional "Accredited
Investor", as defined in Regulation D of the Securities Act.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Interest Swap and Hedging Obligation" means any obligation of any
Person pursuant to any interest rate swap agreement, interest rate cap
agreement, interest rate collar agreement, interest rate exchange agreement,
currency exchange agreement or any other agreement or arrangement designed to
protect against fluctuations in interest rates or currency values, including,
without limitation, any arrangement whereby, directly or indirectly, such Person
is entitled to receive from time to time periodic payments calculated by
applying either a fixed or floating rate of interest on a stated notional amount
in exchange for periodic payments made by such Person calculated by applying a
fixed or floating rate of interest on the same notional amount.
"Invested Equity Capital" means, with respect to any Person as of any
date, without duplication, the sum of (i) the total dollar amount contributed in
cash plus the value of all property contributed (valued at fair market value at
the time of contribution, determined in good faith by the Supervisory Board) to
such Person since the date of its creation in the form of common equity, plus,
(ii) the total dollar amount contributed in cash plus the value of all property
contributed (valued at fair market value at the time of contribution, determined
in good faith by the Supervisory Board) to such Person since the date of
creation by the holders of its common equity (and their Affiliates) in
consideration of the issuance of preferred equity or Indebtedness, on a basis
that is substantially proportionate to their common equity interests (with any
disproportionately large equity interests received by the Company or a
Subsidiary relative to their respective contributions being ignored for this
purpose), plus, (iii) the total dollar amount contributed in cash plus the value
of all property
19
contributed (valued at fair market value at the time of contribution, determined
in good faith by the Supervisory Board) to such Person since the date of its
creation by the Company or a Wholly Owned Subsidiary of the Company in
consideration of the issuance of preferred equity or Indebtedness, and less (iv)
the value of all interest, returns in respect of Indebtedness, dividends and
other distributions (in whatever form and however designated, valued at fair
market value as determined in good faith by the Supervisory Board) made by such
Person since the date of its creation to the holders of its common equity (and
their Affiliates); provided that in no event shall the aggregate amount of
interest, dividends and other distributions made to any holder of common equity
of a Person (or its Affiliates) operate to reduce the Invested Equity Capital of
such Person by more than the total contributions to such Person (per clauses (i)
through (iii) above) by such equity holder (and its Affiliates).
"Investment" by any Person in any other Person means (without
duplication):
(a) the acquisition (whether by purchase, merger, consolidation or
otherwise) by such Person (whether for cash, property, services,
securities or otherwise) of capital stock, bonds, notes, debentures,
partnership or other ownership interests or other securities,
including any options or warrants, of such other Person or any
agreement to make any such acquisition;
(b) the making by such Person of any deposit with, or advance, loan
or other extension of credit to, such other Person (including the
purchase of property from another Person subject to an understanding
or agreement, contingent or otherwise, to resell such property to such
other Person) or any commitment to make any such advance, loan or
extension (but excluding accounts receivable, endorsements for
collection or deposits arising in the ordinary course of business);
(c) other than guarantees of Indebtedness of the Company or to the
extent permitted by Section 10.11, the entering into by such Person of
any guarantee of, or other credit support or contingent obligation
with respect to, Indebtedness or other liability of such other Person;
20
(d) the making of any capital contribution by such Person to such
other Person; and
(e) the designation by the Supervisory Board of the Company of any
Person to be an Unrestricted Subsidiary.
The Company shall be deemed to make an Investment in an amount equal
to the fair market value of the net assets of any Subsidiary (or, if
neither the Company nor any of its Subsidiaries has theretofore made
an Investment in such subsidiary, in an amount equal to the Invest-
ments being made), at the time that such Subsidiary is designated an
Unrestricted Subsidiary, and any property transferred to an Unre-
stricted Subsidiary from the Company or a Subsidiary of the Company
shall be deemed an Investment valued at its fair market value at the
time of such transfer. Investments shall be measured by the fair
market value attributed to the Investment at the time made or re-
turned, as applicable.
"Issue Date" means the date of first issuance of the Initial
Securities hereunder.
"Leverage Ratio" on any date of determination (the "Transaction Date")
for any Person means the ratio, on a pro forma basis, of (a) the aggregate
amount of Indebtedness of such Person and its Subsidiaries on a Consolidated
basis to (b) the aggregate amount of Annualized Consolidated EBITDA of such
Person attributable to continuing operations and business (exclusive of amounts
attributable to operations and businesses permanently discontinued or disposed
of); provided that for purposes of calculating Annualized Consolidated EBITDA
for this definition,
(1) acquisitions which occurred during the Reference Period or
subsequent to the Reference Period and on or prior to the
Transaction Date shall be assumed to have occurred on the first
day of the Reference Period,
(2) transactions giving rise to the need to calculate the Leverage
Ratio shall be assumed to have occurred on the first day of the
Reference Period,
21
(3) the incurrence of any Indebtedness or issuance of any Disqual-
ified Capital Stock during the Reference Period or subsequent to
the Reference Period and on or prior to the Transaction Date (and
the application of the proceeds therefrom to the extent used to
refinance or retire other Indebtedness) shall be assumed to have
occurred on the first day of the Reference Period, and
(4) the Consolidated Fixed Charges of such Person attributable to
interest on any Indebtedness or dividends on any Disqualified
Capital Stock bearing a floating interest (or dividend) rate
shall be computed on a pro forma basis as if the average rate in
effect from the beginning of the Reference Period to the
Transaction Date had been the applicable rate for the entire
period, unless such Person or any of its Subsidiaries is a party
to an Interest Swap or Hedging Obligation (which shall remain in
effect for the 12-month period immediately following the
Transaction Date) that has the effect of fixing the interest rate
on the date of computation, in which case such rate (whether
higher or lower) shall be used.
"Lien" means any mortgage, charge, pledge, lien (statutory or
otherwise), privilege, security interest, hypothecation or other encumbrance
upon or with respect to any property of any kind, real or personal, movable or
immovable, now owned or hereafter acquired. For purposes of this definition,
the sale, lease, conveyance, or other transfer by the Company or any Subsidiary
of the Company, in the ordinary course of its business and not constituting a
security interest in assets serving as collateral for any of their respective
obligations, including the granting of indefeasible rights of use or equivalent
arrangements with respect to, network capacity, communications fiber capacity or
conduit, shall not be a Lien.
"Liquidated Damages" means all liquidated damages then owing pursuant
to the Registration Rights Agreement.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or otherwise.
22
"Net Cash Proceeds" means the aggregate amount of cash or Cash
Equivalents received by the Company in the case of a sale, or Capital
Contribution in respect, of Qualified Capital Stock and by the Company and its
Subsidiaries in respect of an Asset Sale, plus, in the case of an issuance of
Qualified Capital Stock upon any exercise, exchange or conversion of securities
(including options, warrants, rights and convertible or exchangeable debt) of
the Company that were issued for cash on or after July 30, 1999, the amount of
cash originally received by the Company upon the issuance of such securities
(including options, warrants, rights and convertible or exchangeable debt) less,
in each case, the sum of all payments, fees, commissions and (in the case of
Asset Sales, reasonable and customary) expenses (including, without limitation,
the fees and expenses of legal counsel and investment banking fees and expenses)
incurred in connection with such Asset Sale or sale of Qualified Capital Stock,
and, in the case of an Asset Sale only, less the amount (estimated reasonably
and in good faith by the Company) of income, franchise, sales and other
applicable taxes required to be paid by the Company or any of its respective
Subsidiaries in connection with such Asset Sale in the taxable year that such
sale is consummated or in the immediately succeeding taxable year, the
computation of which shall take into account the reduction in tax liability
resulting from any available operating losses and net operating loss carryovers,
tax credits and tax credit carryforwards, and similar tax attributes.
"New Acquisitions" means the acquisition by the Company or its
subsidiaries of @Entertainment, Inc., A2000 Holding N.V., Time Warner Cable
France S.A., Reseaux Cables de France S.A., Videopole S.A., Kabel Plus, a.s.,
SBS Broadcasting S.A., GelreVision N.V., SKT spol. s.r.o. and NBS Broadband
Services AB, all substantially as described in the Offering Circular (and each
such Person's respective subsidiaries).
"Non-Recourse Indebtedness" means Indebtedness of a Person to the
extent that under the terms thereof and pursuant to applicable law, no personal
recourse could be had against the Company or its Subsidiaries (giving effect to
the designations of such Person as an Unrestricted Subsidiary) for the Payment
of the principal of or interest or premium or other amounts with respect to such
Indebtedness or for any claim based on such Indebtedness and that enforcement
of obligations on such Indebtedness is limited solely to recourse against
interests in specified assets.
"Obligation" means any principal, premium or interest payment, or
monetary penalty, or damages, due by the Company under the terms of the
Securities
23
or this Indenture, including any Liquidated Damages due pursuant to
the terms of the Registration Rights Agreement.
"Offering" means the offering of the Securities by the Company.
"Offering Circular" means the offering memorandum, dated October 22,
1999, pursuant to which the Securities were offered and sold.
"Officers' Certificate" means a certificate signed by a member of the
Company's Management Board or its Supervisory Board, the Chief Executive Officer
or a Vice President, and by the Chief Financial Officer, the Chief Accounting
Officer, the Treasurer, an Assistant Treasurer, the Secretary, an Assistant
Secretary or other authorized representative of the Company and delivered to the
Trustee in the form substantially similar to Exhibit E attached hereto, which
shall comply with the Indenture, except in the case of an authentication order
pursuant to Section 3.3, which must only be signed by one of the above noted
persons.
"Opinion of Counsel" means an opinion of counsel in the form
substantially similar to Exhibit G attached hereto, who may be counsel to the
Company, including an employee of the Company.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption U.S. Dollars (in the case of the Dollar Denominated Securities)
or European Legal Tender (in the case of the Euro Denominated Securities)
in the necessary amount have 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 Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture;
24
(iii) Securities, except to the extent provided in Sections 12.2
and 12.3, with respect to which the Company has effected Defeasance and/or
Covenant Defeasance as provided in Article Twelve; and
(iv) Securities which have been paid pursuant to Section 3.6 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands the Securities are valid obligations of the
Company;
provided, however, that in determining whether the Holders of the requisite
principal amount at maturity of Outstanding Securities 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, Securities
owned by the Company or any other obligor upon the Securities 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 Securities which any
Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Parent" means UnitedGlobalCom, Inc. and its successor(s).
"Parent Stock Instrument" means either (a) Indebtedness (including
Disqualified Capital Stock) and Qualified Capital Stock of the Company that is
convertible or exchangeable into, at the option of the Company or any holder
thereof, or secured by, or whose value to the holder thereof is dependent upon
any shares of Parent's Capital Stock that were owned by the Company or any of
its Subsidiaries as of July 30, 1999; provided that such Indebtedness and
Capital Stock of the Company shall have been issued in consideration of cash,
the net proceeds of which shall have been received by the Company or (b) the
Class A Common Stock of Parent owned by the Company or any of its Subsidiaries
as of July 30, 1999 or any like number of
25
shares of Class B Common Stock of Parent issued in exchange for the shares of
the Class A Common Stock of Parent held as of July 30, 1999.
"Participants" means (i) with respect to the Dollar Denominated
Securities, institutions that have accounts with DTC or its nominee and (ii)
with respect to the Euro Denominated Securities, institutions that have accounts
with Euroclear or Cedelbank or their respective nominees.
"Paying Agent" means any 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 Securities on behalf of the Company.
"Payment Date" means any date on which a payment of principal,
premium, if any, interest (or Liquidated Damages, if any) is due to be paid on
any of the Securities.
"Permitted Indebtedness" means that:
(a) the Company may incur Indebtedness evidenced by the Secu rities
and issued pursuant to this Indenture and Indebtedness evidenced by
the Senior Notes and issued pursuant to the Senior Notes Indenture up
to the amounts being issued on the original Issue Date;
(b) the Company may incur Refinancing Indebtedness with respect to
any Indebtedness (including Disqualified Capital Stock), described in
clause (a) or this clause (b) of this definition or incurred pursuant
to clause (1)(ii) of Section 10.11, and any Subsidiary may incur
Refinancing Indebtedness (including Disqualified Capital Stock),
described in this clause (b) or clause (2)(c) of Section 10.11 and the
Company and its Subsidiaries may incur Refinancing Indebtedness with
respect to Indebtedness which is outstanding on the Issue Date (after
giving effect to the New Acquisitions) (less the amount of any such
Existing Indebtedness repaid on or after the Issue Date or which was
refinanced pursuant to this clause (b));
(c) the Company and its Subsidiaries may incur Indebtedness solely in
respect of bankers acceptances, letters of credit and performance and
surety bonds and completion guarantees (to the extent that such
incurrence does not result in the incurrence of any obligation to
26
repay any obligation relating to borrowed money of others), all in the
ordinary course of business in accordance with customary industry
practices, in amounts and for the purposes customary in the Company's
industry;
(d) the Company may incur Indebtedness to any Subsidiary, and any
Subsidiary may incur Indebtedness to any other Subsidiary or to the
Company; provided that in the case of Indebtedness of the Company,
such obligations shall be unsecured and subordinated in all respects
to the Company's obligations pursuant to the Securities and the Senior
Notes and any event that causes such Subsidiary no longer to be a
Subsidiary (including by designation to be an Unrestricted Subsidiary)
shall be deemed to be a new incurrence of such Indebtedness, if then
outstanding, subject to Section 10.11;
(e) the Company and its Subsidiaries may incur Interest Swap and
Hedging Obligations that are incurred for the purpose of fixing or
hedging interest rate or currency risk with respect to any fixed or
floating rate Indebtedness that is permitted by this Indenture to be
outstanding or any receivable or liability the payment of which is
determined by reference to a foreign currency; provided that the
notional amount of any such Interest Swap and Hedging Obligation does
not exceed the principal amount of Indebtedness to which such Interest
Swap and Hedging Obligation relates;
(f) the Company and its Subsidiaries may guarantee Indebtedness of
any of the Company's Subsidiaries, provided that the incurrence of
such Indebtedness by such Subsidiary is permitted under this Inden-
ture; and
(g) Subsidiaries of the Company may issue preferred stock or
Indebtedness to the holders (or their Affiliates) of the common equity
of such Subsidiary on a basis that is substantially proportionate to
their common equity interests (with any disproportionately large
equity interests received by the Company or a Subsidiary of the
Company relative to their respective contributions being ignored for
this purpose).
"Permitted Investment" means:
27
(a) Cash Equivalents;
(b) intercompany Indebtedness to the extent permitted under clause (d)
of the definition of "Permitted Indebtedness";
(c) an Investment by the Company or a Subsidiary of the Company in a
Person engaged primarily in a Related Business if as a result of such
Investment such Person becomes a Subsidiary of the Company or is
merged with or into the Company or a Subsidiary of the Company, so
long as the surviving entity is the Company or a Subsidiary of the
Company;
(d) an Investment in any Subsidiary of the Company;
(e) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Company maintains the power
to influence or participate in the management of such Person by virtue
of representation on such Person's board or directors or through a
contractual relationship with such Person or its holders of Capital
Stock;
(f) other Investments in any Person or Persons engaged primarily in a
Related Business with respect to which the Supervisory Board of the
Company or of the relevant Subsidiary determines in its good faith
reasonable judgement that the Company or any of its Subsidiaries will
receive as a result of such Investment commensurate network services
benefits (including by becoming a customer, client, supplier,
purchaser or seller of goods or services of or to such Person or
Persons) from the arrangements entered into as a result of such
Investment;
(g) other Investments in any Person or Persons engaged primarily in a
Related Business; provided that, after giving pro forma effect to each
such Investment, the amount of all such Investments made solely in
reliance upon this clause (g) on and after July 30, 1999 that are
Outstanding at any time does not exceed in the aggregate $100,000,000
(or the foreign currency equivalent thereof measured on the date of
the making of such Investment), plus, unless such amounts shall have
been credited under clause (3) of Section 10.12 and utilized to make a
Restricted Payment, (w) the amount of the Net Cash
28
Proceeds to the Company from the sale of Qualified Capital Stock
(other than (i) to a Subsidiary of the Company, and (ii) to the extent
applied in a Qualified Exchange), (x) an amount equal to 50% of the
Net Cash Proceeds from Special Character Asset Sales, (y) an amount
equal to the Net Cash Proceeds to the Company or any of its Subsid
iaries of any sale of securities constituting a Parent Stock
Instrument (other than (i) to a Subsidiary of the Company, and (ii) to
the extent applied in connection with a Qualified Exchange) and (z)
the amount of Investments made pursuant to this clause (g) after July
30, 1999 that are returned to the Company or any Subsidiary on or
prior to the date of any such calculation, which amount shall be the
lesser of (i) the amount of the cash invested plus the value of all
noncash invest ments (valued at the fair market value at the time of
the Investment, determined in the good faith reasonable judgment of
the Company or the relevant Subsidiary) and (ii) the amount of the Net
Cash Proceeds received plus the value of noncash proceeds received
(valued at the fair market value at the time of the return of such
Investment, deter mined in the good faith reasonable judgment of the
Company or the relevant Subsidiary);
(h) Investments made in the ordinary course of business as partial or
full payment for constructing a network relating principally to a
Related Business of the Company or any Subsidiary;
(i) Investments solely in the form and consisting of Capital Stock of
the Company (other than Disqualified Capital Stock);
(j) any Investment acquired by the Company or any of its re stricted
Subsidiaries (a) in exchange for any other Investment or accounts
receivable held by the Company or any such restricted Subsidiary in
connection with or as a result of a bankruptcy, workout,
reorganization or recapitalization of the issuer of such other invest
ment or accounts receivable or (b) as a result of a foreclosure by the
Company or any of its restricted Subsidiaries with respect to any
secured Investment or other transfer of title with respect to any
secured Investment in default;
29
(k) an Investment in prepaid expenses and lease, utility and workers'
compensation, performance and other similar deposits in the ordinary
course of business;
(l) loans, advances, or extensions of credit to employees, officers,
directors made in the ordinary course of business;
(m) the net obligations of any counterparty under Interest Swap and
Hedging Obligations obtained in conformity with industry practices;
(n) Investments made on or after July 30, 1999 in SBS Broadcast ing
S.A. not to exceed the amounts required to be made by the Company
pursuant to the Investment Agreement by and between, SBS Broadcasting
S.A., the Company and United International Holdings Inc., dated June
29, 1999, relating to the acquisition by the Company of Equity
Interests in SBS Broadcasting S.A.; and
(o) Investments made on or after July 30, 1999 directly or indirectly
in ARA Cable Services Inc. or ARA Programming & Distribution Ltd. of
Saudi Arabia, not to exceed $75,000,000.
"Permitted Lien" means:
(a) Liens existing on the Issue Date;
(b) Liens securing the Securities and the Senior Notes;
(c) Liens securing Indebtedness, or any agreement (including any
Equity Interest) relating to any property, asset, or business
acquired, of a Person existing at the time such Person becomes a
Subsidiary (including by designation) or is merged with or into the
Company or a Subsidiary or Liens securing Indebtedness incurred in
connection with an Acquisition, provided that such Liens were in
existence prior to the date of such acquisition, merger or
consolidation, were not incurred in anticipation thereof, and do not
extend to any other assets than those of the Person (or its
businesses) being acquired (or so designated);
30
(d) leases or subleases granted to other Persons in the ordinary
course of business not materially interfering with the conduct of the
business of the Company or any of its Subsidiaries or materially
detracting from the value of the relative assets of the Company or any
Subsidiary;
(e) Liens arising from precautionary Uniform Commercial Code financing
statement filings regarding operating leases entered into by the
Company or any of its Subsidiaries in the ordinary course of business;
(f) Liens securing Refinancing Indebtedness incurred to refinance any
Indebtedness that was previously so secured in a manner no more
adverse to the Holders of the Securities than the terms of the Liens
securing such refinanced Indebtedness, provided that the In debtedness
secured is not increased and the Lien is not extended to any
additional assets or property that would not have been security for
the Indebtedness refinanced;
(g) Liens securing Indebtedness incurred under the Credit Agree ment
and other Indebtedness solely of Subsidiaries of the Company incurred
in accordance with the terms of this Indenture;
(h) Liens in favor of the Company or Liens on assets of Subsidiaries
of the Company in favor of other such Subsidiaries;
(i) Liens securing Refinancing Indebtedness that complies with the
definition of "Refinancing Indebtedness";
(j) Liens securing Acquired Indebtedness and Indebtedness assumed in
acquiring Related Assets, provided that such Liens were not put in
place in contemplation of the incurrence by the Company or its
Subsidiaries of such Indebtedness, such Liens do not extend to any
property or assets of the Company or any of its Subsidiaries other
than those acquired in connection therewith, and the Investment that
is the subject of such acquisition is a Permitted Investment;
(k) statutory liens of carriers, warehousemen, mechanics, material
men, landlords, repairmen or other like Liens arising by operation of
31
law in the ordinary course of business, provided that (1) the underly
ing obligations are not overdue for a period of more than 30 days, or
(2) such Liens are being contested in good faith and by appropriate
proceedings and adequate reserves with respect thereto are maintained
on the books of the Company in accordance with GAAP; and
(l) Liens not otherwise permitted by this Indenture in an amount not
to exceed 5% of the Company's Consolidated Tangible Assets.
"Person" means any Corporation, individual, limited liability com
pany, joint stock company, joint venture, partnership, limited liability
partnership, unincorporated association, governmental regulatory entity,
country, state or political subdivision thereof, trust, municipally or other
entity.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for a
mutilated security or in lieu of a lost, destroyed or stolen Security shall be
deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or
stolen Security.
"Preferred Stock" means any Equity Interest of any class or classes of
a Person (however designated) which is preferred as to payments of dividends, or
as to distributions upon any liquidation or dissolution, over Equity Interests
of any other class of such Person.
"Principals" means Albert M. Carollo, Lawrence F. DeGeorge, Lawrence
J. DeGeorge, Curtis Rochelle, Marian Rochelle, Rochelle Investments, Ltd. (so
long as it is controlled by Curtis or Marian Rochelle), Gene W. Schneider, G.
Schneider Holdings, Co. and The Gene W. Schneider Family Trust (so long as each
is controlled by Gene W. Schneider or trustees appointed by him), Janet S.
Schneider, Mark L. Schneider, and with respect to any such Person means: (A) any
controlling stockholder or 80% (or more) owned Subsidiary of such Person, or
with respect to each individual Person, (i) family partnerships, Corporations or
other entities holding Equity Interests in the Company, the transferee(s) or the
surviving entities or entities solely for the benefit of such Person or any of
the Persons listed in (ii), (iii), (iv) or (v) below, (ii) such Person's spouse,
(iii) such Person's children, grandchildren, stepchildren, step grandchildren
and their spouses, (iv) heirs, legatees and devisees, and (v) trusts solely for
the benefit of any of the foregoing; or (B) any
32
trust Corporation, partnership or other entity, the beneficiaries, stockholders,
partners, owners or Persons beneficially holding an 80% or more controlling
interest of which consist of such Person and/or such other Persons referred to
in the immedi ately preceding clause (A).
"Pro Forma" or "pro forma" shall have the meaning set forth in
Regulation S-X of the Securities Act, unless otherwise specifically stated
herein.
"Purchase Money Indebtedness" of any Person means any Indebtedness of
such Person to any seller or other Person incurred solely to finance the
acquisition (including in the case of a Capitalized Lease Obligation, the
lease), construction, installation or improvement of any after acquired real or
personal tangible property which, in the reasonable good faith judgment of the
Supervisory Board of the Company, is directly related to a Related Business.
"Qualified Capital Stock" means any Capital Stock of the Company that
is not Disqualified Capital Stock.
"Qualified Exchange" means:
(a) any legal defeasance, redemption, retirement, repurchase or other
acquisition of Capital Stock, or Indebtedness of the Company issued on
or after July 30, 1999 with the Net Cash Proceeds received by the
Company from the substantially concurrent sale of its Qualified
Capital Stock or, to the extent used to retire Indebtedness (other
than Disqualified Capital Stock) of the Company issued on or after
July 30, 1999, Subordinated Indebtedness of the Company,
(b) any exchange of Qualified Capital Stock of the Company for any
Capital Stock or Indebtedness of the Company issued on or after July
30, 1999, or
(c) any issuance of Subordinated Indebtedness of the Company in
exchange for Indebtedness (other than Disqualified Capital Stock) of
the Company issued on or after July 30, 1999.
"Qualified Institutional Buyer" or "QIB" has the meaning specified in
Rule 144A.
33
"Redemption Date", when used with respect to any Security 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 Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Period" with regard to any Person means the full fiscal
quarter ended immediately preceding any date upon which any determination is to
be made pursuant to the terms of the Securities or this Indenture, for which
Consolidated financial statements of the Company are available.
"Refinancing Indebtedness" means Indebtedness (including Disquali fied
Capital Stock) (a) issued in exchange for, or the proceeds from the issuance and
sale of which are used substantially concurrently to repay, redeem, defease,
refund, refinance, discharge or otherwise retire for value, in whole or in part,
or (b) constitut ing an amendment, modification or supplement to, or a deferral
or renewal of ((a) and (b) above are, collectively, a "Refinancing"), any
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
in a principal amount (or, if issued with an original issue discount, an
original accreted value, determined in accordance with GAAP) or, in the case of
Disqualified Capital Stock, liquidation preference, not to exceed (after
deduction of reasonable and customary fees and expenses incurred in connection
with the Refinancing and the amount of any premium paid in connection with such
Refinancing in accordance with the terms of the documents governing the
Indebtedness (including Disqualified Capital Stock and Refinancing Indebtedness)
refinanced without giving effect to any modification thereof made in connection
with or in contemplation of such refinancing) the lesser of (1) the principal
amount or, in the case of Disqualified Capital Stock, liquidation preference, of
the Indebtedness (including Disqualified Capital Stock and Refinancing
Indebtedness) so Refinanced and (2) if such Indebtedness being Refinanced was
issued with an original issue discount, the accreted value thereof (as
determined in accordance with GAAP) at the time of such Refinancing; provided
that (A) such Refinancing Indebtedness shall only be used to refinance
Outstanding Indebtedness (including Disqualified Capital Stock) of such Person
issuing such Refinancing Indebtedness (except that the Company may refinance
Outstanding Indebtedness of a Subsidiary), (B) such Refinancing Indebtedness
shall (x) not have an Average Life shorter than the Indebtedness (including
Disqualified Capital Stock) to be so refinanced at the time of such Refinancing
and (y) in all respects, be no less contractually subordinated or junior, if
applicable, to the rights of Holders of the Securities
34
than was the Indebtedness (including Disqualified Capital Stock) to be
refinanced, (C) such Refinancing Indebtedness shall have a final stated maturity
or redemption date, as applicable, no earlier than the final stated maturity or
redemption date, as applicable, of the Indebtedness (including Disqualified
Capital Stock) to be so refinanced, and (D) such Refinancing Indebtedness shall
be secured (if secured) in a manner no more adverse to the Holders of the
Securities than the terms of the Liens (if any) securing such refinanced
Indebtedness, including, without limitation, the amount of Indebtedness secured
shall not be increased.
"Registrar" means an office or agency of the Company in London, where
Securities may be presented for registration of transfer or exchange.
"Registration Rights Agreement" means the Registration Rights
Agreement dated the date hereof, between the Initial Purchasers and the Company.
"Registration Statement" means the Registration Statement as defined
in the Registration Rights Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means April 15 or October 15 (whether or not a Business Day), as the case
may be, next preceding such Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act.
"Regulation S Global Security" has the meaning specified in Section
3.3.
"Related Assets" means all assets, rights, contractual or otherwise,
and properties, whether tangible or intangible, used or intended for use in
connection with a Related Business; provided that Related Assets shall not
include any Equity Interests or indebtedness of, or interests in, any Person.
"Related Business" means the business of constructing, creating,
developing, marketing or operating one or more cable, telephone or
communications systems, including, without limitation, any system for
transmitting, or providing service or product for the transmission of, voice,
video or data through transmission facilities, Internet service providers or any
business reasonably related to any of the foregoing and any business conducted
by the Company or any Subsidiary of the Company on the Issue Date; provided that
the determination of what constitutes a
35
Related Business shall be made in good faith by the Supervisory Board of the
Company.
"Related Business Acquisition" means an Asset Acquisition of (i)
properties or assets to be used in a Related Business, (ii) of the Capital Stock
of any Person that becomes a restricted Subsidiary as a result of such Asset
Acquisition or (iii) of the Capital Stock of any Person that becomes an
Unrestricted Subsidiary as a result of such Asset Acquisition, but only if such
Asset Acquisition would be permitted pursuant to Section 10.12 or as a Permitted
Investment; provided that, in the case of clauses (ii) and (iii), such Person's
assets and properties consist princi pally of properties or assets that will be
used in a Related Business.
"Replacement Assets" means property or assets that will be used in a
Related Business of the Company or any Subsidiary and Equity Interests of a
Person that becomes a Subsidiary of the Company.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice-president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
mater is referred because of such person's knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Dollar Denominated Global Security" means a Restricted
Global Security representing Dollar Denominated Securities.
"Restricted Euro Denominated Global Securities" means a Restricted
Global Security representing Euro Denominated Securities.
"Restricted Global Security" has the meaning specified in Section 3.3.
"Restricted Investment" means, in one or a series of related transac
tions, any Investment, other than other Permitted Investments.
"Restricted Payment" means, with respect to any Person:
36
(a) the declaration or payment of any dividend or other distribution
in respect of Equity Interests of such Person or any parent or
Subsidiary of such Person,
(b) any payment on account of the purchase, redemption or other
acquisition or retirement for value of Equity Interests of such Person
or any Subsidiary or parent of such Person,
(c) other than with the proceeds from the substantially concurrent
sale of, or in exchange for, Refinancing Indebtedness, any purchase,
redemption, or other acquisition or retirement for value of, any pay
ment in respect of any amendment of the terms of or any defeasance of,
any Subordinated Indebtedness, directly or indirectly, by such Person
or a parent or Subsidiary of such Person prior to the scheduled
maturity, any scheduled repayment of principal, or scheduled sinking
fund payment, as the case may be, of such Indebtedness and
(d) any Restricted Investment by such Person;
provided, however, that the term "Restricted Payment" does not include (1) any
dividend, distribution or other payment on or with respect to Equity Interests
of a Person or the parent of such Person to the extent payable solely in shares
of Qualified Capital Stock of such Person, or (2) any dividend, distribution or
other payment to the Company or any of its Subsidiaries by the Company or any of
its Subsidiaries, or (3) any payment on account of the exchange of shares of
Common Stock of Parent for a like number of substantially identical (except with
regard to voting rights) shares of Common Stock of Parent, or (4) payments to or
for the account of the Stichting Administratiekantor UPC (the "Foundation") or
its successors of amounts related to taxes payable upon the grant of options to
certain employees in shares of the Company held by the Foundation, provided
that, for purposes of this clause (4), neither the Company nor any of its
Subsidiaries shall be liable to any Person in respect of such amounts, other
than for the payment of such amounts actually received or to be received by it,
to the Foundation.
"Restricted Period" means the period through and including the 40/th/
day after the later of the commencement of the Offering and the Issue Date of
the Initial Securities.
37
"Restricted Securities" means Restricted Global Securities and
Regulation S Global Securities.
"Rule 144A" means Rule 144A under the Securities Act.
"SEC" means the United States Securities and Exchange Commission.
"Securities" means, collectively, the "Securities" issued under this
Indenture, including the Initial Securities and the Exchange Securities.
"Securities Act" means the United States Securities Act of 1933, as
amended.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Discount Notes" means the Company's $478,000,000 13 3/8%
Senior Discount Notes due 2009 and its pound sterling 191,000,000 13 3/8% Senior
Discount Notes due 2009 issued pursuant to the Indenture.
"Senior Notes" means the Company's $252,000,000 11 1/4% Senior Notes
due 2009, its pound sterling 101,000,000 11 1/4% Senior Notes due 2009, its
$200,000,000 10 7/8% Senior Notes due 2007 and its pound sterling 100,000,000 10
7/8% Senior Notes due 2007, to be issued pursuant to the Senior Notes Indenture.
"Senior Notes Indenture" means one or more Indentures, dated as of
October 29, 1999, between the Company and Citibank, N.A., as trustee, relating
to and governing the terms of the Senior Notes.
"Shelf Registration Statement" means the Shelf Registration State
ment as defined in the Registration Rights Agreement.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 3.7.
"Significant Subsidiary" shall have the meaning provided under
Regulation S-X of the Securities Act, as in effect on the Issue Date.
38
"Special Character Asset Sale" means any Asset Sale solely consisting
of assets and property or interests therein comprising its interests in chello
broad band, UPC tv or Priority Telecom determined by the Company in its good
faith reasonable judgment.
"Stated Maturity," when used with respect to any Security, means the
date specified in any Security as the fixed date on which the final payment of
principal and interest is due and payable.
"Subordinated Indebtedness" means Indebtedness of the Company that is
subordinated in right of payment by its terms or the terms of any document or
instrument relating thereto to the Securities, in any respect or when used in
the definitions of Restricted Payment or Qualified Exchange has a final stated
maturity on (except for the Securities) or after the Stated Maturity.
"Subsidiary," with respect to any Person, means (1) a Corporation a
majority of whose Equity Interests with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by such Person and one or more Subsidiaries of such Person or by
one or more Subsidiaries of such Person, (2) any other Person (other than a
Corporation) in which such Person, one or more Subsidiaries of such Person, or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof has majority ownership interest, or (3) a
partnership in which such Person or a Subsidiary of such Person is, at the time,
a general partner and in which such Person, directly or indirectly, at the date
of determination thereof has a majority ownership interest. Notwithstanding the
foregoing, an Unrestricted Subsidiary shall not be a Subsidiary of the Company
or of any Subsidiary of the Company. Unless the context requires otherwise,
Subsidiary means each direct and indirect Subsidiary of the Company.
"Supervisory Board" means, with respect to any Person, the supervi-
sory board of directors of such Person or any committee of the supervisory board
of directors of such Person authorized, with respect to any particular matter,
to exercise the power of the supervisory board of directors of such Person.
"TARGET" means the Trans-European Automated Real-time Gross Settlement
Express Transfer (TARGET) system.
39
"Tax" or "Taxes" means any and all present or future taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, and all liabilities
with respect thereto, together with any penalties, interest, or additions
thereto.
"Tax Event" means that as a result of any change in or amendment to
the laws, treaties or regulations of any Taxing Authority (or any official or
administrative pronouncement or action or judicial decision) interpreting or
applying such laws, treaties or regulations where such change or amendment is
proposed and becomes effective on or after the Issue Date, in making any payment
due or to become due under the Securities, the Company is or would be required
on the next succeeding payment date to pay Additional Amounts and the payment of
such Additional Amounts cannot be avoided by the use of any reasonable measures
available to the Company.
"Taxing Authority" means any nation or government or any political
subdivision thereof or any agency or instrumentality therein and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"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 9.5.
"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 Global Security" has the meaning set forth in Section
3.3(d).
"Unrestricted Securities" means an Unrestricted Global Security and
all other Securities that are not Restricted Securities, including Exchange
Dollar Denominated Securities and Exchange Euro Denominated Securities.
"Unrestricted Subsidiary" means any subsidiary of the Company that
does not own any Equity Interest of, or own or hold any Lien on any property of,
the Company or any other Subsidiary of the Company and that, at the time of
determination, shall be an Unrestricted Subsidiary (as designated by the
Supervisory Board of
40
the Company); provided that such Subsidiary at the time of such designation (a)
has no Indebtedness other than Non-Recourse Indebtedness; (b) is not party to
any agreement, contract, arrangement or understanding with the Company or any
Subsidiary of the Company, unless the terms of any such agreement, contract,
arrangement or understanding are no less favorable to the Company or such
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Company; (c) is a Person with respect to which neither the
Company nor any of its Subsidiaries has any direct or indirect obligation (x) to
subscribe for additional Equity Interests or (y) to maintain or preserve such
Person's financial condition or to cause such Person to achieve any specified
levels of operating results; and (d) has not guaranteed or otherwise directly or
indirectly provided credit support for any Indebtedness of the Company or any of
its Subsidiaries. The Supervisory Board of the Company may designate any
Unrestricted Subsidiary to be a Subsidiary, provided that (1) no Default or
Event of Default is existing or will occur as a consequence thereof and (2)
immediately after giving effect to such designation, on a pro forma basis, the
Company could incur at least $1.00 (or its foreign currency equiva lent) of
Indebtedness pursuant to the Debt Incurrence Ratio of Section 10.11. Each such
designation shall be evidenced by filing with the Trustee a certified copy of
the resolution giving effect to such designation and an Officer's Certificate
certifying that such designation complied with the foregoing conditions.
"U.S. Government Obligations" means direct non-callable obligations
of, or noncallable obligations guaranteed by, the United States of America for
the payment of which obligation or guarantee the full faith and credit of the
United States of America is pledged.
"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."
"Wholly Owned Subsidiary" means a Subsidiary all the Equity Interests
of which (other than directors' qualifying shares) are owned by the Company or
one or more Wholly Owned Subsidiaries of the Company.
SECTION 1.2 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)
41
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 10.9(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 1.3 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
42
should know, that the certificate or opinion or representations with respect to
the matters upon which his 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
instru ments under this Indenture, they may, but need not, be Consolidated
(with proper identification of each matter covered therein) and form one
instrument.
SECTION 1.4 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 instru ments. 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 (subject to Section 6.1) 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.
43
(c) The principal amount at maturity and serial numbers of Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) If the Company shall solicit from the Holders of Securities 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 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 Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the Outstanding Securities 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.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security 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 Security.
SECTION 1.5 Notices. Any notice or communication shall be
-------
sufficiently given if in writing and delivered in person, by facsimile and
confirmed by overnight courier, or mailed by first-class mail addressed as
follows:
if to the Company:
United Pan-Europe Communications N.V.
44
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attention: General Counsel and Treasurer
Facsimile: 31 20 778 9841
Telephone: 31 20 778 9840
with a copy to:
Holme, Roberts & Owen LLP
Heathcoat House
20 Savile Row
London W1X 1AE
England
Attention: Paul G. Thompson
Facsimile: 44 171 287 9344
Telephone: 44 171 494 5600
if to the Trustee or Paying Agent:
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
copies of notices to the Trustee should also go to:
Citibank, N.A.
11 Old Jewry
London EC2R 8DU
Attention: Global Agency and Trust Services
Facsimile: 44 171 508 3879
Telephone: 44 171 508 3815
45
if to the Luxembourg Paying and Transfer Agent:
Banque International a Luxembourg
69 route d'Esch
Luxembourg L-2953
c/o the Trustee
The Company or the Trustee by notice to the other may designate additional
or different addresses for subsequent notices or communications.
Any notice or communication mailed, first-class, postage prepaid, to a
Holder including any notice delivered in connection with TIA Section 310(b), TIA
Section 313(c), TIA Section 314(a) and TIA Section 315(b), shall be mailed to
him at his address as set forth on the Security Register and shall be
sufficiently given to him if so mailed within the time prescribed. To the extent
required by the TIA, any notice or communication shall also be mailed to any
Person described in TIA Section 313(c).
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders.
Except for a notice to the Trustee, which is deemed given only when received, if
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 1.6 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 the address of such Holder as it appears in the Security Register, not
later than the latest date, and not earlier than the earliest date, prescribed
for the giving of such notice. As long as the Securities are listed on the
Luxembourg Stock Exchange and notice is required by the rules of the Luxembourg
Stock Exchange, such notice shall be sufficiently given by publication of such
notice to Holders of the Securities in English will be in a leading newspaper
having general circulation in Luxembourg (which is expected to be the Luxembourg
Wort) or, if such publication is not practicable, in one other leading English
language daily newspaper with general circulation in Europe, such newspaper
being published on each business day in morning editions, whether or not it
shall be published in Saturday, Sunday or holiday editions. In any case where
notice to Holders is given by mail, neither the failure to
46
mail such notice, nor any defect in any notice so mailed, to any particular
Holder shall affect the 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 1.7 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 1.8 Successors and Assigns. All covenants and agree ments in
----------------------
this Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.9 Separability Clause. In case any provision in this
-------------------
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 1.10 Benefits of Indenture. Nothing in this Indenture or in
---------------------
the Securities, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any Security Registrar and their successors
hereunder and the Holders any legal or equitable right, remedy or claim under
this Indenture.
SECTION 1.11 Governing Law. This Indenture and the Securities shall
-------------
be governed by and construed in accordance with the law of the State of New York
including without limitation Section 5-1401 and 5-1402 of the New York General
Obligation Law and New York Civil Practice Laws and Rules 327(b), as
47
applied to contracts made and performed within the State of New York, without
regard to conflicts of law. The Company hereby irrevocably submits to the
jurisdic tion of any New York State court sitting in the borough of Manhattan in
the city of New York or any federal court sitting in the borough of Manhattan in
the city of New York in respect of any suit, action or proceeding arising out of
or relating to this Indenture and the Securities, and irrevocably accepts for
itself and in respect of its property, generally and unconditionally,
jurisdiction of the aforesaid courts. The Company irrevocably waives, to the
fullest extent they may effectively do so under applicable law, trial by jury
and any objection which they may now or hereafter have to the laying of the
venue of any such suit, action or proceeding bought in any such court and any
claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum. Nothing herein shall affect the right of
the Trustee or any Holder to serve process in any other manner permitted by law
or to commence legal proceedings or otherwise proceed against the Company in any
other jurisdiction.
SECTION 1.12 Conflict with Trust Indenture Act. Prior to the issuance
---------------------------------
of the Exchange Securities or the effectiveness of the Shelf Registration
Statement, the Trust Indenture Act shall apply as a matter of contract to this
Indenture for purposes of interpretation, construction and defining the rights
and obligations hereunder. Upon the issuance of the Exchange Securities or
the effectiveness of the Shelf Registration Statement, this Indenture shall be
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. If any provision hereof limits, qualifies or conflicts with any
provision of the Trust Indenture Act or another provision which is required or
deemed to be included in this Indenture by any of the provisions of the Trust
Indenture Act, such provision or requirement of the Trust Indenture Act shall
control.
If any provision of this Indenture modifies or excludes any provision
of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Indenture as so modified or excluded,
as the case may be.
SECTION 1.13 Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, or Stated Maturity or Maturity of any Security shall not
be a Business Day at a place of payment, then (notwithstanding any other
provision of this Indenture or of the Securities) payment of principal of (or
premium, if any) or interest need not be made on such date, but may be made on
the next
48
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date or at the Stated Maturity or Maturity;
provided that no interest shall accrue solely by virtue of such delay for the
period from and after such Interest Payment Date, Redemption Date, Stated
Maturity or Maturity, as the case may be.
SECTION 1.14 No Personal Liability of Board Members, Officers,
-------------------------------------------------
Employees and Shareholders. No board member, director, officer, employee,
- --------------------------
agent, authorized representative, incorporator or shareholder of the Company, as
such, shall have any liability for any obligations of the Company under the
Securities or this Indenture or for any claim based on, in respect of, or by
reason of, such obligations or their creation, solely by reason of its status as
a board member, director, officer, employee, agent, authorized representative,
incorporator or shareholder of the Company. By accepting a Security, the
Trustee on behalf of each Holder waives and releases all such liability (but
only such liability). The waiver and release are part of the consideration for
issuance of the Securities.
SECTION 1.15 Independence of Covenants. All covenants and agreements
-------------------------
in this Indenture shall be given independent effect so that if a particular
action or condition is not permitted by any of such covenants, the fact that it
would be permitted by an exception to, or be otherwise within the limitations
of, another covenant shall not avoid the occurrence of a Default if such action
is taken or condition exists.
SECTION 1.16 Exhibits. All exhibits attached hereto are by this
--------
reference made a part hereof with the same effect as if herein set forth in
full.
SECTION 1.17 Counterparts. This Indenture may be executed in any
------------
number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
SECTION 1.18 Duplicate Originals. The parties may sign any number of
-------------------
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement.
SECTION 1.19 Agent for Service; Submission to Jurisdiction; Waiver of
--------------------------------------------------------
Immunities. By the execution and delivery of this Indenture, the Company (i)
- ----------
acknowledges that it has, by separate written instruments, designated and
appointed CT Corporation System, 1633 Broadway, New York, NY 10019 ("CT
49
Corporation System") (and any successor entity), as its authorized agent upon
which process may be served in any suit or proceeding arising out of or relating
to this Indenture that may be instituted in any federal or state court in the
Borough of Manhattan, City of New York, State of New York or brought under
federal or state securities laws, and represent and warrant that CT Corporation
System has accepted such designation, (ii) submits to the jurisdiction of any
such court in any such suit or proceeding and (iii) agrees that service of
process upon CT Corporation System and written notice of said service to the
Company, in accordance with Section 1.5 shall be deemed in every respect
effective service of process upon the Company in any such suit or proceeding.
The Company further agrees to take any and all action, including the execution
and filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corporation System in full force
and effect for as long as any of the Securities remain Outstanding (subject to
the limitation set forth in clause (i)); provided, however, that the Company
may, and to the extent CT Corporation System ceases to be able to be served on
the basis contemplated herein shall, by written notice to the Trustee, designate
such additional or alternative agent for service of process under this Section
1.19 that (i) maintains an office located in the Borough of Manhattan City of
New York, State of New York, and (ii) is either (x) United States counsel for
the Company or (y) a corporate service company which acts as agent for service
of process for other persons in the ordinary course of its business. Such
written notice shall identify the name of such agent for service of process and
the address of the office of such agent for service of process in the Borough of
Manhattan, City of New York, State of New York.
To the extent that the Company has or hereafter may acquire any immunity
from jurisdiction of any court of (i) any jurisdiction in which the Company owns
or leases property or assets, (ii) the United States or the State of New York or
(iii) the Netherlands or from any legal process (whether through service of
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property and assets or this
Agreement or any of the Notes or actions to enforce judgments in respect of any
thereof, the Company hereby irrevocably waives such immunity in respect of its
obligations under the above-referenced documents, to the extent permitted by
law.
SECTION 1.20 Judgment Currency. The Company hereby agrees to
-----------------
indemnify the Trustee, its directors, its officers and each person, if any, who
controls the Trustee within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any loss incurred by such person as a result of
any judgment or
50
order being given or made against the Company for any U.S. Dollar amount due
under this Agreement and such judgment or order being expressed and paid in a
currency (the "Judgment Currency") other than U.S. Dollars and as a result of
any variation as between (i) the rate of exchange at which the U.S. Dollar
amount is converted into the Judgment Currency for the purpose of such judgment
or order and (ii) the spot rate of exchange in The City of New York at which
such party on the date of payment of such judgment or order is able to purchase
U.S. Dollars with the amount of the Judgment Currency actually received by such
party. The foregoing indemnity shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term "spot rate of
exchange" shall include any premiums and costs of exchange payable in connection
with the purchase of, or conversion into, U.S. Dollars.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally. The Securities and the Trustee's
---------------
certificate of authentication with respect thereto shall be in substantially the
form set forth in Exhibit A hereto with respect to the Dollar Denominated
Securities and Exhibit B hereto with respect to the Euro Denominated Securities,
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 system on which the Securities may be listed or eligible
for trading or as may, consistently herewith, be determined by the officers
executing such Securities, as evidenced by their execution of the Securities.
Any portion of the text of any Security may be set forth on the reverse thereof,
with an appropriate reference thereto on the face of the Security.
The Certificated Securities shall be printed, lithographed or engraved
on steel-engraved borders or may be produced in any other manner permitted by
the rules of any securities exchange or system on which the Securities may be
listed or eligible for trading, all as determined by the managing directors,
officers and authorized representatives of the Company executing such
Securities, as evidenced by their execution of such Securities.
51
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms. The aggregate principal amount at
---------------
maturity of Dollar Denominated Securities and Euro Denominated Securities which
may be authenticated and delivered under this Indenture is initially limited to
$478,000,000 and pounds 191,000,000, respectively, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 3.4, 3.5, 3.6, 9.6,
10.10, 10.16 or 11.8.
The Initial Securities shall be known and designated as the
"$478,000,000 13 3/8% Senior Discount Notes Due 2009" and the " pounds
191,000,000 13 3/8% Senior Discount Notes due 2009" and the Exchange Securities
shall be known as the "$478,000,000 13 3/8% Series B Senior Discount Notes" and
the "pounds 191,000,000 13 3/8% Series B Senior Discount Notes." The final
Stated Maturity of the Securities shall be November 1, 2009. The Accreted Value
of the Dollar Denominated Securities will accrete at a rate of 13 3/8% per
annum, until they reach their principal amount at maturity on November 1, 2004.
Interest on the Dollar Denominated Securities will be payable semiannually in
arrears on May 1 and November 1 of each year, commencing May 1, 2005, to the
Holders of record on the immediately preceding Regular Record Date. The Accreted
Value of the Euro Denominated Securities will accrete at a rate of 13 3/8% per
annum, until they reach their principal amount at maturity on November 1, 2004.
Interest on the Euro Denominated Securities will be payable semiannually in
arrears on May 1 and November 1 of each year, commencing May 1, 2005, to the
Holders of record on the immediately preceding Regular Record Date. Interest on
the Securities will be computed on the basis of a 360-day year comprised of
twelve 30-day months.
Principal of, premium, if any, and interest on the Securities will be
payable, and the Securities may be exchanged or transferred, at the office or
agency of the Company in The City of New York and in London, which, unless
otherwise provided by the Company, will be the offices of the Trustee. 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 Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
52
At the election of the Company, the entire Indebtedness on the
Securities or certain of the Company's obligations and covenants and certain
Events of Default thereunder may be defeased as provided in Article Twelve.
The Securities will be general, senior, unsecured obligations of the
Company, ranking pari passu in right of payment with each other.
SECTION 3.2 Denominations. The Securities (including any Global
-------------
Security) shall be issuable only in registered form without coupons and only in
denominations of US$1,000 principal amount at maturity in the case of Dollar
Denominated Securities and pounds 1,000 principal amount at maturity in the case
of Euro Denominated Securities or any integral multiple of US$1,000 or pound
sterling 1,000, as the case may be, principal amount at maturity above such
amount. The Securities shall not be issuable in bearer form. No service charge
shall be made for any registration of transfer or exchange of Securities, but
the Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities shall be executed on behalf of the Company by its
Chief Executive Officer, its President, a Vice President or a managing director
(being an executive officer of the Company with due authority granted by the
management board of the Company to execute Securities) of the Company. The
signature of any of these officers or directors on the Securities may be manual
or facsimile signatures of the present or any future such authorized officer or
director and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers or directors of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities. In addition, any
Security may be signed on behalf of the Company by such Persons as, at the
actual date of the execution of such Security, shall be the proper officers or
directors of the Company, although at the date of such Security or of the
execution of this Indenture any such Person was not such officer or director.
53
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities.
Each Security shall be dated the date of its authentication. No
Security shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security a certificate
of authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture.
On the Issue Date the Trustee shall authenticate Initial Securities
for original issue in the aggregate principal amount at maturity not to exceed
$478,000,000 and pound sterling 191,000,000, respectively, upon a written order
of the Company in the form of an Officer's Certificate. Such order shall specify
the amount of the Initial Securities to be authenticated and the date on which
the original issue of Initial Securities is to be authenticated. In addition,
the Trustee shall authenticate Exchange Securities for original issue in the
aggregate principal amount at maturity of up to $478,000,000 and pound sterling
191,000,000, in each case upon a written order of the Company in the form of an
Officer's Certificate, provided that such Exchange Securities shall be issuable
only upon the valid surrender for cancellation of Initial Securities of a like
aggregate principal amount at maturity in accordance with the Registration
Rights Agreement. The Officer's Certificate shall specify the amount of Exchange
Securities to be authenticated and the date on which the Exchange Securities are
to be authenticated. Upon the written order of the Company in the form of an
Officer's Certificate, the Trustee shall authenticate Securities in substitution
of Securities originally issued to reflect any name change of the Company.
(b) The terms and provisions contained in the form of Securities shall
constitute, and are hereby expressly made, a part of this Indenture and, to the
extent applicable, the Company and the Trustee, by their execution and delivery
of this Indenture, expressly agree to such terms and provisions and to be bound
thereby.
(c) Restricted Global Securities. (i) The Initial Securities offered
----------------------------
and sold in reliance on Rule 144A shall be issued in the form of one or more
global securities (the "Restricted Global Security") in definitive, fully
registered form
54
without interest coupons, with such applicable legends as are provided for in
Exhibit A hereto, except as otherwise permitted herein.
(ii) Each Restricted Dollar Denominated Global Security shall be
registered in the name of DTC or its nominee and deposited with the
Trustee, at its Corporate Trust Office, as custodian for DTC, duly executed
by the Company and authenticated by the Trustee as hereinafter provided.
The aggregate principal amount at maturity of a Restricted Dollar
Denominated Global Security may from time to time be increased or decreased
by adjustments made on the records of the Trustee, as custodian for DTC, in
connection with a corresponding decrease or increase in the aggregate
principal amount at maturity of a Dollar Denominated Security that is a
Regulation S Global Security (a "Regulation S Dollar Denominated Global
Security") or a Dollar Denominated Security that is an Unrestricted Global
Security (an "Unrestricted Dollar Denominated Global Security"), as
hereinafter provided.
(iii) Each Restricted Euro Denominated Global Security shall be
registered in the name of the Common Depositary or its nominee and
deposited with the Common Depositary, on behalf of Euroclear and Cedelbank,
duly executed by the Company and authenticated by the Trustee as
hereinafter provided for credit to the respective accounts of Euroclear and
Cedelbank. The aggregate principal amount at maturity of a Restricted Euro
Denominated Global Security may from time to time be increased or decreased
by adjustments made on the records of the Common Depositary, in connection
with a corresponding decrease or increase in the aggregate principal amount
at maturity of a Euro Denominated Security that is a Regulation S Global
Security (a "Regulation S Euro Denominated Global Security") or a Euro
Denominated Security that is an Unrestricted Global Security (an
"Unrestricted Euro Denominated Global Security"), as hereinafter provided.
(d) Regulation S Global Securities. (i) Initial Securities offered
------------------------------
and sold in reliance on Regulation S shall be initially issued in the form of
one or more Global Securities in definitive, fully registered form without
interest coupons, with such applicable legends as are provided for in Exhibit A
hereto, except as otherwise permitted herein. Until such time as the Restricted
Period shall have
55
terminated, such Global Securities shall be referred to herein as the
"Regulation S Global Security." After such time as the Restricted Period shall
have terminated, such Regulation S Global Securities shall be referred to
herein, as the "Unrestricted Global Securities."
(ii) Each Regulation S Dollar Denominated Global Security and
Unrestricted Dollar Denominated Global Security shall be registered in the
name of DTC or its nominee and deposited with the Trustee, at its Corporate
Trust Office, as custodian for DTC, duly executed by the Company and
authenticated by the Trustee as hereinafter provided, for credit to the
respective accounts at DTC of the depositaries for Euroclear or Cedelbank.
The aggregate principal amount at maturity of each Regulation S Dollar
Denominated Global Security (or Unrestricted Dollar Denominated Global
Security) may from time to time be increased or decreased by adjustments
made on the records of the Trustee, as custodian for DTC, in connection
with a corresponding decrease or increase in the aggregate principal amount
at maturity of a Restricted Dollar Denominated Global Security, as
hereinafter provided.
(iii) The Regulation S Euro Denominated Global Security and
Unrestricted Euro Denominated Global Security shall be registered in the
name of the Common Depositary or its nominee and deposited with the Common
Depositary, as custodian for Euroclear and Cedelbank, duly executed by the
Company and authenticated by the Trustee as hereinafter provided, for
credit to the respective ac counts of Euroclear and Cedelbank. The
aggregate principal amount at maturity of a Regulation S Euro Denominated
Global Security or an Unrestricted Global Security may from time to time be
increased or decreased by adjustments made on the records of the Common
Depos itary, as custodian for Euroclear and Cedelbank, in connection with
a corresponding decrease or increase in the aggregate principal amount at
maturity of a Restricted Euro Denominated Global Security, as hereinafter
provided.
(e) The Exchange Dollar Denominated Securities and the Exchange Euro
Denominated Securities which are issued in exchange for initial Dollar
Denominated Securities and initial Euro Denominated Securities respectively
shall be issued initially in the form of one or more permanent Global Securities
in defini-
56
tive, fully registered form without interest coupons, substantially
in the form set forth in Exhibit A and Exhibit B respectively, deposited with
the Trustee, as custodian for DTC in the case of the Exchange Dollar Denominated
Securities, and deposited with the Common Depositary, on behalf of Euroclear and
Cedelbank in the case of the Exchange Euro Denominated Securities, and shall
bear the applicable legends relating to Global Securities set forth in Exhibit A
and Exhibit B that are required to appear on such Securities. Exchange Dollar
Denominated Securities and Exchange Euro Denominated Securities shall constitute
Unrestricted Securities.
(f) 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 Eight, any of the
Securities 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 Securities 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 Securities
surrendered for such exchange and of like principal amount at maturity; and the
Trustee, upon Company Request of the successor Person, shall authenticate and
deliver Securities as specified in such request for the purpose of such
exchange. If Securities 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 Securities, such
successor Person, at the option of the Holders but without expense to them,
shall provide for the exchange of all Securities at the time Outstanding for
Securities authenticated and delivered in such new name.
SECTION 3.4 Temporary Securities. Pending the preparation of
--------------------
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
57
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 10.2,
without charge to the Holder. Upon surrender for cancellation of any one or
more temporary Securities, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount at
maturity of definitive Securities of authorized denominations. Until so
exchanged, the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive Securities.
SECTION 3.5 Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Company shall cause to be kept at the Corporate Trust Office of the Trustee a
register (the register maintained in such office and in any other office or
agency designated pursuant to Section 10.2 being herein sometimes referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers and exchange of Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. At all reasonable times, the Security Register shall
be open to inspection by the Trustee. The Trustee is hereby initially appointed
as security registrar (the "Security Registrar") for the purpose of registering
Securities and transfers and exchanges of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company designated pursuant to Section 10.2, the Company
shall execute, the Trustee shall authenticate and deliver, and the Security
Registrar shall register, if the requirements, of such transfer are met, in the
name of the designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations of a like aggregate principal
amount at maturity.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination and of a like currency and aggregate
principal amount at maturity (including an exchange of Initial Securities for
Exchange Securities), upon surrender of the Securities to be exchanged at such
office or agency provided that Dollar Denominated Securities may not be
exchanged for Euro Denominated Securities, and vice versa. Whenever any
Securities are so surrendered for exchange, the Company shall execute, the
Trustee shall authenticate and deliver,
58
and the Security Registrar shall register, the Securities which the Holder
making the exchange is entitled to receive, provided that no exchange of Initial
Securities for Exchange Securities shall occur until an Exchange Offer
Registration Statement shall have been declared effective by the SEC (confirmed
in an Officer's Certificate) and that the Initial Securities to be exchanged for
the Exchange Securities shall be cancelled by the Trustee.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Security Registrar)
be duly endorsed, or be accompanied by a written instrument of transfer, in form
satisfactory to the Company and the Security 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 Securities, 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 Securities, other
than exchanges pursuant to Section 3.4, 9.6, 10.10, 10.16 or 11.8 not involving
any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange any Security during a period beginning at the opening of business
15 days before the selection of Securities to be redeemed under Section 11.4 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
Security so selected for redemption in whole or in part, except the unredeemed
portion of any Security being redeemed in part.
SECTION 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If (i)
------------------------------------------------
any mutilated Security 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 Security, and there is delivered to the Company and the Trustee such
security 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 Security
has been acquired
59
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
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount at maturity, bearing a number not
contemporaneously Outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security 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 Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security 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 Securities duly issued hereunder.
The provisions of this Section 3.6 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 Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved. Interest
----------------------------------------------
on any Security 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
Security (or one or more Predecessor Securities) 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 10.2; provided,
however, that each installment of interest may at the Company's option be paid
(i) by mailing a check for such interest, payable to or upon the written order
of the Person entitled thereto pursuant to Section 3.8, to the address of such
Person as it appears in the Security Register, or (ii) by wire transfer of such
interest in immediately available funds to an account, in the case of the Dollar
Denominated Securities, located in the United States maintained by the DTC, and,
in the case of the Euro Denominated Securities, to an account located in Europe.
60
Any interest on any Security 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 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 Securities (such defaulted
interest and interest thereon herein collectively called "Defaulted Interest")
must be paid by the Company, at its election in each case, as provided in
paragraph (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or their respective Predecessor
Securities) 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. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Security and the date of the
proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of U.S. Dollars (in the case of the Dollar Denominated
Securities) or European Legal Tender (in the case of the Euro Denominated
Securities) 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 U.S. Dollars
(in the case of the Dollar Denominated Securities) or European Legal Tender (in
the case of the Euro Denominated Securities) 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 1.6, 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
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following paragraph(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 or system on which the Securities may be listed or eligible for
trading, and
61
upon such notice as may be required by such exchange or system, if, after
written 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 Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.8 Persons Deemed Owners. Prior to the due presentment of
---------------------
a Security 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 Security
is registered as the owner of such Security for the purpose of receiving payment
of principal or Accreted Value of (and premium, if any) and (subject to Sections
3.5 and 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security 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 3.9 Cancellation. All Securities 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 Securities 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 Securities previously authenticated hereunder which the Company
has not issued and sold, and all Securities so delivered shall be promptly
cancelled by the Trustee. If the Company shall so acquire any of the Securities,
however, such acquisition shall not operate as a redemption or satisfaction of
the Indebtedness represented by such Securities unless and until the same are
surrendered to the Trustee for cancellation. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities 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
Securities be returned to it.
62
SECTION 3.10 Computation of Interest. Interest on the Securities
-----------------------
shall be computed on the basis of a 360-day year comprised of twelve 30-day
months.
SECTION 3.11 "CUSIP" and/or "ISIN" Numbers. The Company in issuing
-----------------------------
the Securities may use a "CUSIP" and/or "ISIN" number (if then generally in
use), and if so, the Trustee and the Common Depositary shall use "CUSIP" and/or
"ISIN" numbers in notices of redemption or exchange as a convenience to Holders;
provided, however, that any such notice may state that no representation is made
as to the correctness or accuracy of such numbers either as printed in the
notice or on the Securities, and that reliance may be placed only on the other
identification numbers printed on the Securities. The Company shall promptly
notify the Trustee and the Common Depositary in writing of any change in the
"CUSIP" or "ISIN" numbers of the Securities.
SECTION 3.12 Book-Entry Provisions for Global Securities,
--------------------------------------------
Certificated Securities.
- -----------------------
Except as indicated below in this Section 3.12, the Securities shall
be represented only by Global Securities. The Global Securities shall be
deposited with a Depositary for such Securities (and shall be registered in the
name of such Depositary or its nominee). The Depositary for the Dollar
Denominated Securities shall be DTC unless the Company appoints a successor
Depositary by delivery of a Company Order to the Trustee specifying such
successor Depositary. The Depositary for the Euro Denominated Securities shall
be Citibank, N.A. unless Euroclear and Cedelbank appoint a successor Depositary
(which shall be a Common Depositary of Euroclear and Cedelbank).
All payments on a Dollar Denominated Global Security will be made to
DTC or its nominee, as the case may be, as the registered owner and Holder of
such Dollar Denominated Global Security. All payments on a Euro Denominated
Global Security will be made to the order of the Common Depositary or its
nominee, as the case may be, as the registered holder of such Euro Denominated
Global Security. In each case, the Company will be fully discharged by payment
to or to the order of such Depositary from any responsibility or liability in
respect of each amount so paid. Upon receipt of any such payment in respect of
a Dollar Denominated Global Security, DTC will credit Participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount at maturity of such Dollar Denominated Global Security
as shown on the
63
records of DTC. The Common Depositary will instruct the Euro Paying Agent to
make payments in respect of the Euro Denominated Securities to Euroclear and
Cedelbank in amounts proportionate to their respective beneficial interests in
the principal amount at maturity of each Euro Denominated Global Security, and
Euroclear and Cedelbank will credit Participants' accounts with payments in
amounts proportionate to their respective beneficial interests in the principal
amount at maturity of such Global Security as shown on the records of Euroclear
and Cedelbank.
Unless and until it is exchanged in whole or in part for Certificated
Securities, a Global Security may not be transferred except as a whole by the
relevant Depositary or nominee thereof to another nominee of the Depositary or
to a successor of the Depositary or a nominee of such successor.
Owners of beneficial interests in Global Securities shall be entitled
or required, as the case may be, but only under the circumstances described in
this Section 3.12, to receive physical delivery of Certificated Securities.
Interests in a Global Security shall be exchangeable or transferable,
as the case may be, for Certificated Securities if (i) in the case of a Dollar
Denominated Global Security, DTC notifies the Company that it is unwilling or
unable to continue as Depositary for such Dollar Denominated Global Security, or
DTC ceases to be a "Clearing Agency" registered under the United States
Securities Exchange Act of 1934, and a successor depositary is not appointed by
the Company within one hundred and twenty (120) days, (ii) in the case of a Euro
Denominated Global Security, Euroclear and Cedelbank notify the Company that
they are unwilling or unable to continue as clearing agencies for such Euro
Denominated Global Security, (iii) in the case of a Euro Denominated Global
Security, the Common Depositary notifies the Company that it is unwilling or
unable to continue as Depositary for such Euro Denominated Global Security, and
a successor Common Depositary is not appointed within one hundred and twenty
(120) days or (iv) in the case of any Global Security, an Event of Default has
occurred and is continuing with respect thereto and the owner of a beneficial
interest therein requests such exchange or transfer. Upon the occurrence of any
of the events described in the preceding sentence, the Company shall cause the
appropriate Certificated Securities to be delivered to the owners of beneficial
interests in the Global Securities or the Participants in DTC, Euroclear or
Cedelbank through which such owners hold their beneficial interest. Certificated
Securities shall be exchangeable or transferable for interests in other
Certificated Securities as described herein.
64
SECTION 3.13 Transfer and Exchange of Securities.
-----------------------------------
(a) Obligations with Respect to Transfers and Exchanges of Securities.
-----------------------------------------------------------------
Upon surrender for registration of transfer of any Security of a series to the
appropriate Registrar, and subject to the other provisions of this Section 3.13,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new Securities
of such series of any authorized denominations and of a like aggregate principal
amount at maturity.
At the option of the Holder, and subject to the other provisions of
this Section 3.13, Securities of any series may be exchanged for other
Securities of such series of any authorized denominations and of a like
aggregate principal amount at maturity, upon surrender of the Securities to be
exchanged at such office or agency. Whenever any Securities are so surrendered
for exchange, and subject to the other provisions of this Section 3.13, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
Indebtedness, and subject to the other provisions of this Section 3.13, entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Trustee or the Common
Depositary) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company or the appropriate Registrar and be
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 of Securities, but the Company may require payment of a sum sufficient
to cover any tax or governmental charge payable in connection with any
registration of transfer or exchange of Securities.
(b) Transfer and Exchange of Dollar Denominated Global Securities.
-------------------------------------------------------------
Notwithstanding any provisions of this Indenture or the Securities, transfers of
a Dollar Denominated Global Security, in whole or in part, transfers and
exchanges of interests therein of the kinds described in clauses (ii), (iii) and
(iv)
65
below and exchange of interests in Dollar Denominated Global Securities or of
other Dollar Denominated Securities as described in clause (v) below, shall be
made only in accordance with this Section 3.13(b). Transfers and exchanges
subject to this Section 3.13 shall also be subject to the other provisions of
this Indenture that are not inconsistent with this Section 3.13.
(i) General. A Dollar Denominated Global Security may not be
-------
transferred, in whole or in part, to any Person other than DTC or a nominee
thereof or a successor to DTC or its nominee, and no such transfer to any
such other Person may be registered; provided that this clause (i) shall
not prohibit any transfer of a Dollar Denominated Security that is issued
in exchange for a Dollar Denominated Global Security but is not itself a
Dollar Denominated Global Security. No transfer of a Dollar Denominated
Security of any series to any Person shall be effective under this
Indenture or the Dollar Denominated Securities of such series unless and
until such Dollar Denominated Security has been registered in the name of
such Person. Nothing in this Section 3.13(b)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Dollar Denominated
Global Security effected in accordance with the other provisions of this
Section 3.13(b).
(ii) Restricted Global Security to Regulation S Global Security.
----------------------------------------------------------
If the Holder of a beneficial interest in a Restricted Dollar Denominated
Global Security of any series wishes at any time to transfer such interest
to a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Regulation S Dollar Denominated Global Security of such
series, such transfer may be effected, subject to the rules and procedures
of DTC, Euroclear and Cedelbank, in each case to the extent applicable (the
"Applicable Procedures"), only in accordance with the provisions of this
Section 3.13(b)(ii). Upon receipt by the Dollar Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Dollar Registrar, to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in a
Regulation S Dollar Denominated Global Security in a principal amount at
maturity equal to that of the beneficial interest in a Restricted Dollar
Denominated Global Security to be so transferred; (B) a written order given
in accordance with the Applicable Proce-
66
dures containing information regarding the account of the Agent Member
(and/or the Euroclear or Cedelbank account, as the case may be) to be
credited with, and the account of the Agent Member to be debited for, such
beneficial interest; and (C) a certificate in substan tially the form set
forth in Exhibit C given by the Holder of such beneficial interest, the
principal amount at maturity of a Restricted Dollar Denominated Global
Security shall be reduced, and the principal amount at maturity of a
Regulation S Dollar Denominated Global Security shall be increased, by the
principal amount of the beneficial interest in a Restricted Dollar
Denominated Global Security to be so transferred, in each case by means of
an appropriate adjustment on the records of the Dollar Registrar, and the
Dollar Registrar shall instruct DTC or its authorized representative to
make a corresponding adjustment to its records and to credit or cause to
be credited to the account of the Person specified in such instructions
(which shall be the Agent Member for Euroclear or Cedelbank or both, as the
case may be) a beneficial interest in a Regulation S Dollar Denominated
Global Security having a principal amount at maturity equal to the amount
so transferred.
(iii) Restricted Dollar Denominated Global Security to
------------------------------------------------
Unrestricted Dollar Denominated Global Security. If the Holder of a
-----------------------------------------------
beneficial interest in a Restricted Dollar Denominated Global Security of
any series wishes at any time to transfer such interest to a Person who
wishes to take delivery thereof in the form of a beneficial interest in an
Unrestricted Dollar Denominated Global Security of such series, such
transfer may be effected, subject to the Applicable Procedures, only in
accordance with this Section 3.13(b)(iii). Upon receipt by the Dollar
Registrar, of (A) written instructions given in accordance with the
Applicable Procedures from an Agent Member directing the Dollar Registrar
to credit or cause to be credited to a specified Agent Member's account a
beneficial interest in an Unrestricted Dollar Denominated Global Security
in a principal amount at maturity equal to that of the beneficial interest
in a Restricted Dollar Denominated Global Security to be so transferred,
(B) a written order given in accordance with the Applicable Procedures
containing information regarding the account of the Agent Member (and, if
applicable, the Euroclear or Cedelbank account, as the case may be) to be
credited with, and the account of the Agent Member to be debited
67
for, such beneficial interest, and (C) a certificate in substantially the
form set forth in Exhibit D given by the Holder of such beneficial
interest, the principal amount at maturity of the Restricted Dollar
Denominated Global Security shall be reduced, and the principal amount at
maturity of an Unrestricted Dollar Denominated Global Security shall be
increased, by the principal amount at maturity of the beneficial interest
in a Restricted Global Dollar Denominated Security to be so transferred, in
each case by means of an appropriate adjustment on the records of the
Dollar Registrar and the Dollar Registrar shall instruct DTC or its
authorized representative to make a corre sponding adjustment to its
records and to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in an Unrestricted
Dollar Denominated Global Security having a principal amount equal to the
amount at maturity so transferred.
(iv) Regulation S Dollar Denominated Global Security or
--------------------------------------------------
Unrestricted Dollar Denominated Global Security to Restricted Dollar
--------------------------------------------------------------------
Denominated Global Security. If the Holder of a beneficial interest in a
---------------------------
Regulation S Dollar Denominated Global Security of any series or an
Unrestricted Dollar Denominated Global Security of any series wishes at any
time to transfer such interest to a Person who wishes to take delivery
thereof in the form of a beneficial interest in a Restricted Dollar
Denominated Global Security of such series, such transfer may be effected,
subject to the Applicable Procedures, only in accordance with this Section
3.13(b)(iv). Upon receipt by the Dollar Registrar of (A) written
instructions given in accordance with the Applicable Procedures from an
Agent Member directing the Dollar Registrar to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in a
Restricted Dollar Denominated Global Security in a principal amount at
maturity equal to that of the beneficial interest in a Regulation S Dollar
Denominated Global Security or an Unrestricted Dollar Denominated Global
Security to be so transferred, (B) a written order given in accordance with
the Applicable Procedures containing information regarding the account of
the Agent Member to be credited with, and the account of the Agent Member
(and, if applicable, the Euroclear or Cedelbank account, as the case may
be) to be debited for, such beneficial interest, and (C) with respect to a
transfer of a beneficial interest in a Regula-
68
tion S Dollar Denominated Global Security (but not an Unrestricted Dollar
Denominated Global Security) to a Person whom the transferor reasonably
believes is a QIB, a certificate in substantially the form set forth in
Exhibit E given by the Holder of such beneficial interest, the principal
amount at maturity of a Restricted Dollar Denominated Global Security shall
be increased, and the principal amount at maturity of a Regulation S Dollar
Denominated Global Security or an Unrestricted Dollar Denominated Global
Security shall be reduced, by the principal amount at maturity of the
beneficial interest in a Restricted Dollar Denominated Global Security to
be so transferred, in each case by means of an appropriate adjustment on
the records of the Dollar Registrar and the Dollar Registrar shall instruct
DTC or its authorized representative to make a corresponding adjustment to
its records and to credit or cause to be credited to the account of the
Person specified in such instructions a beneficial interest in the
Restricted Dollar Denominated Global Security having a principal amount at
maturity equal to the amount so transferred.
(v) Exchanges of Dollar Denominated Global Security for Dollar
----------------------------------------------------------
Denominated Non-Global Security. In the event that a Dollar Denominated
-------------------------------
Global Security or any portion thereof is exchanged for Dollar Denominated
Securities other than Dollar Denominated Global Securities, such other
Dollar Denominated Securities may in turn be exchanged (on transfer or
otherwise) for Securities that are not Dollar Denominated Global Securities
or for beneficial interests in a Dollar Denominated Global Security (if any
is then Outstanding) only in accordance with such procedures, which shall
be substantially consistent with the provisions of clauses (i) through (iv)
above and (vi) below (including the certification requirements intended to
insure that transfers and exchanges of beneficial interests in a Dollar
Denominated Global Security comply with Rule 144A, Rule 144 or Regulation
S, as the case may be) and any Applicable Procedures, as may be from time
to time adopted by the Company and the Trustee.
(vi) Interest in Regulation S Dollar Denominated Global Security
-----------------------------------------------------------
to be Held Through Euroclear or Cedelbank. Until the termination of the
-----------------------------------------
Restricted Period with respect thereto, interests in a Regulation S Global
Security may be held only through Agent
69
Members acting for and on behalf of Euroclear and Cedelbank, provided that
this clause (vi) shall not prohibit any transfer in accordance with
Section 3.13(b)(iv) hereof.
(c) Transfer and Exchange of Euro Denominated Global Securities.
------------------------------------------------------------
Notwithstanding any provisions of this Indenture or the Euro Denominated
Securities, transfers of a Euro Denominated Global Security, in whole or in
part, transfers and exchanges of interests therein of the kinds described in
clauses (ii), (iii) and (iv) below and exchange of interests in Euro
Denominated Global Securities or of other Euro Denominated Securities as
described in clause (v) below, shall be made only in accordance with this
Section 3.13(c). Transfers and exchanges subject to this Section 3.13 shall
also be subject to the other provisions of this Indenture that are not
inconsistent with this Section 3.13.
(i) General. A Euro Denominated Global Security may not be
-------
transferred, in whole or in part, to any Person other than the Common
Depositary or a nominee thereof or a successor Common Depositary or its
nominee, and no such transfer to any such other Person may be registered;
provided that this clause (i) shall not prohibit any transfer of a Euro
Denominated Security that is issued in exchange for a Euro Denominated
Global Security but is not itself a Euro Denominated Global Security. No
transfer of a Euro Denominated Security to any Person shall be effective
under this Indenture or the Euro Denominated Securities unless and until
such Euro Denominated Security has been registered in the name of such
Person. Nothing in this Section 3.13(c)(i) shall prohibit or render
ineffective any transfer of a beneficial interest in a Euro Denominated
Global Security effected in accordance with the other provisions of this
Section 3.13(c).
(ii) Restricted Euro Denominated Global Security to Regulation S
-----------------------------------------------------------
Euro Denominated Global Security. If the Holder of a beneficial interest
--------------------------------
in a Restricted Euro Denominated Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in
the form of a beneficial interest in a Regulation S Euro Denominated
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with the provisions of this Section
3.13(c)(ii). Upon receipt by the Euro Registrar of (A) written
instructions given in accordance with
70
the Applicable Procedures from Euroclear or Cedelbank directing the Euro
Registrar to credit or cause to be credited to Euroclear's or Cedelbank's
account a beneficial interest in a Regulation S Euro Denominated Global
Security in a principal amount at maturity equal to that of the beneficial
interest in a Restricted Euro Denominated Global Security to be so
transferred; (B) a written order given in accordance with the Applicable
Procedures containing information regarding the account of Euroclear or
Cedelbank to be credited with, and the account of Euroclear or Cedelbank to
be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Exhibit C given by the Holder of such
beneficial interest, the principal amount at maturity of a Restricted Euro
Denominated Global Security shall be reduced, and the principal amount at
maturity of a Regulation S Euro Denominated Global Security shall be in
creased, by the principal amount at maturity of the beneficial interest in
a Restricted Euro Denominated Global Security to be so trans ferred, in
each case by means of an appropriate adjustment on the records of the Euro
Registrar and the Euro Registrar shall instruct the Common Depositary or
its authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of Euroclear
or Cedelbank a beneficial interest in a Regulation S Euro Denominated
Global Security having a principal amount at maturity equal to the amount
so transferred.
(iii) Restricted Euro Denominated Global Security to Unrestricted
-----------------------------------------------------------
Euro Denominated Global Security. If the Holder of a beneficial interest
--------------------------------
in a Restricted Euro Denominated Global Security wishes at any time to
transfer such interest to a Person who wishes to take delivery thereof in
the form of a beneficial interest in an Unrestricted Euro Denominated
Global Security, such transfer may be effected, subject to the Applicable
Procedures, only in accordance with this Section 3.13(c)(iii). Upon receipt
by the Euro Registrar of (A) written instructions given in accordance with
the Applicable Procedures from Euroclear or Cedelbank directing the Euro
Registrar to credit or cause to be credited to Euroclear's or Cedelbank's
account a beneficial interest in an Unrestricted Euro Denominated Global
Security in a principal amount at maturity equal to that of the beneficial
interest in a Restricted Euro Denominated Global Security to be so
transferred, (B) a written order given in accordance with the Appli-
71
cable Procedures containing information regarding the account of Euroclear
or Cedelbank to be credited with, and the account of Euroclear or Cedelbank
to be debited for, such beneficial interest and (C) a certificate in
substantially the form set forth in Exhibit D given by the Holder of such
beneficial interest, the principal amount at maturity of the Restricted
Euro Denominated Global Security shall be reduced, and the principal amount
at maturity of an Unrestricted Euro Denominated Global Security shall be
increased, by the principal amount at maturity of the beneficial interest
in a Restricted Euro Denominated Global Security to be so transferred, in
each case by means of an appropriate adjustment on the records of the Euro
Registrar and the Euro Registrar shall instruct the Common Depositary or
its authorized representative to make a corresponding adjustment to its
records and to credit or cause to be credited to the account of Euroclear
or Cedelbank a beneficial interest in a Regulation S Euro Denominated
Global Security having a principal amount at maturity equal to the amount
so transferred.
(iv) Regulation S Euro Denominated Global Security or
------------------------------------------------
Unrestricted Euro Denominated Global Security to Restricted Euro
----------------------------------------------------------------
Denominated Global Security. If the Holder of a beneficial interest in a
---------------------------
Regulation S Euro Denominated Global Security or an Unrestricted Euro
Denominated Global Security wishes at any time to transfer such interest to
a Person who wishes to take delivery thereof in the form of a beneficial
interest in a Restricted Euro Denominated Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in accordance
with this Section 3.13(c)(iv). Upon receipt by the Euro Registrar of (A)
written instructions given in accordance with the Applicable Procedures
from Euroclear or Cedelbank directing the Euro Registrar to credit or cause
to be credited to Euroclear's or Cedelbank's account a beneficial interest
in a Restricted Euro Denominated Global Security in a principal amount at
maturity equal to that of the beneficial interest in a Regulation S Euro
Denominated Global Security or an Unrestricted Euro Denominated Global
Security to be so transferred, (B) a written order given in accordance with
the Applicable Procedures containing information regarding the account of
Euroclear or Cedelbank to be credited with, and the account of Euroclear or
Cedelbank to be debited for, such beneficial interest and (C) with respect
to a transfer
72
of a beneficial interest in a Regulation S Euro Denominated Global Security
(but not an Unrestricted Euro Denominated Global Security) to a Person whom
the transferor reasonably believes is a QIB, a certificate in substantially
the form set forth in Exhibit E given by the Holder of such beneficial
interest, the principal amount at maturity of a Restricted Euro Denominated
Global Security shall be increased, and the principal amount at maturity of
a Regulation S Euro Denominated Global Security or an Unrestricted Euro
Denominated Global Security shall be reduced, by the principal amount at
maturity of the beneficial interest in a Restricted Euro Denominated Global
Security to be so transferred, in each case by means of an appropriate
adjustment on the records of the Euro Registrar and the Euro Registrar
shall instruct the Common Depositary or its authorized representative to
make a corresponding adjustment to its records and to credit or cause to be
credited to the account of the Person specified in such instructions a
beneficial interest in a Restricted Euro Denominated Global Security having
a principal amount at maturity equal to the amount so transferred.
(v) Exchanges of Euro Denominated Global Security for Euro
------------------------------------------------------
Denominated Non-Global Security. In the event that a Euro Denominated
-------------------------------
Global Security or any portion thereof is ex changed for Securities other
than Euro Denominated Global Securities, such other Securities may in
turn be exchanged (on transfer or otherwise) for Securities that are not
Euro Denominated Global Securities or for beneficial interests in a Euro
Denominated Global Security (if any is then Outstanding) only in accordance
with such procedures, which shall be substantially consistent with the
provisions of clauses (i) through (iv) above and (vi) below (including the
certification requirements intended to insure that transfers and exchanges
of beneficial interests in a Euro Denominated Global Security comply with
Rule 144A, Rule 144 or Regulation S, as the case may be) and any Applicable
Procedures, as may be from time to time adopted by the Company and the
Trustee.
(vi) Interest in Euro Denominated Global Security to be Held
-------------------------------------------------------
Through Euroclear or Cedelbank. Interests in a Euro Denominated Global
------------------------------
Security may be held only through Agent Members acting for and on behalf
of Euroclear and Cedelbank, provided
73
that this clause (vi) shall not prohibit any transfer in accordance with
Section 3.13(c)(iv) hereof.
(d) Legends. Each Restricted Security and Global Security issued
-------
hereunder shall, upon issuance, bear the legends set forth in Exhibit A hereto
that are required to be applied to such a Security and such required legends
shall not be removed from such Security except as provided in the next sentence
or Section 3.13(e). The legend required for a Restricted Security may be
removed from a Security if there is delivered to the Company and the appropriate
Registrar such satisfactory evidence, which may include an opinion of
independent counsel licensed to practice law in the State of New York, as may be
reasonably required by the Company that neither such legend nor the restrictions
on transfer set forth therein are required to ensure that transfers of such
Security will not violate the registration requirements of the Securities Act.
Upon provision of such satisfactory evidence, the Trustee, at the direction of
the Company, shall authenticate and deliver in exchange for such Security
another security or securities having an equal aggregate principal amount at
maturity that does not bear such legend. If such a legend required for a
Restricted Security has been removed from a Security as provided above, it shall
not be a Restricted Security and no other Security issued in exchange for all or
any part of such Security shall bear such legend, unless the Company has
reasonable cause to believe that such other security is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
(e) Global Securities. The provisions of clauses (i), (ii), (iii),
-----------------
and (iv) below shall apply only to Global Securities;
(i) General. Each Global Security authenticated under this
-------
Indenture shall be registered in the name of the appropriate Depositary or
a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor.
(ii) Transfer to Persons other than Depositary. Notwithstanding
-----------------------------------------
any other provision in this Indenture or the Securities, no Global Security
may be exchanged in whole or in part for Securities registered, and no
transfer of a Global Security in whole or in part may be registered, in the
name of any person other than the appropriate Depositary or a nominee
thereof unless (A) in the case of a Dollar Denominated Global Security, DTC
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global
74
Security, or DTC ceases to be a "Clearing Agency" registered under the
United States Securities Exchange Act of 1934, and a successor depositary
is not appointed by the Company within one hundred and twenty (120) days,
(B) in the case of a Euro Denominated Global Security, Euroclear and
Cedelbank notify the Company that they are unwilling or unable to continue
as clearing agencies for such Euro Denominated Global Security, (C) in the
case of a Euro Denominated Global Security, the Common Depositary notifies
the Company that it is unwilling or unable to continue as Depositary for
such Euro Denominated Global Security, and a successor Common Depositary is
not appointed within one hundred and twenty (120) days or (D) in the case
of any Global Security, an Event of Default has occurred and is continuing
with respect thereto and the owner of a beneficial interest therein
requests such exchange or transfer. Any Global Security exchanged pursuant
to clause (A), (B) or (C) above shall be so exchanged in whole and not in
part and any Global Security exchanged pursuant to clause (D) above may be
exchanged in whole or from time to time in part as directed by DTC. Any
Security issued in exchange for a Global Security or any portion thereof
shall be a Global Security, provided that any such Security so issued that
is registered in the name of a Person other than the appropriate Depositary
or a nominee thereof shall not be a Global Security.
(iii) Global Security to Certificated Security. Securities issued
----------------------------------------
in exchange for a Global Security or any portion thereof pursuant to clause
(ii) above shall be issued in definitive, fully registered form without
interest coupons, shall have an aggregate principal amount at maturity
equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the appropriate Depositary shall designate and shall
bear any legends required hereunder. Any Global Security to be exchanged in
whole shall be surrendered by the appropriate Depositary to the Security
Registrar. With regard to any Global Security to be exchanged in part,
either such Global Security shall be so surrendered for exchange or, in the
case of a Dollar Denominated Global Security, if the Trustee is acting as
custodian for DTC or its nominee with respect to such Global Security or,
in the case of a Euro Denominated Global Security, if the Common Depositary
is acting as Depositary for Euroclear and
75
Cedelbank, the principal amount at maturity thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee, as
Authenticating Agent, or of the Common Depositary. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the appropriate
Depositary or an authorized representative thereof.
(iv) In the event of the occurrence of any of the events
specified in clause (ii) above, the Company will promptly make available to
the Trustee a supply of Certificated Securities in definitive, fully
registered form, without interest coupons, sufficient to meet the Trustee's
requirements hereunder.
(v) No Rights of Agent Members in Global Security. No Agent
---------------------------------------------
Member of any Depositary nor any other Persons on whose behalf Agent
Members may act (including Euroclear and Cedelbank and account Holders and
Participants therein) shall have any rights under the Indenture with
respect to any Global Security, or under any Global Security, and each
Depositary or its nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and Holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee from giving
effect to any written certification, proxy or other authorization furnished
by the applicable Depositary or such nominee, as the case may be, or
impair, as between DTC, Euroclear and Cedelbank, their respective Agent
Members and any other person on whose behalf an Agent Member may act, the
operation of customary practices of such Persons governing the exercise of
the rights of a Holder of any Security.
SECTION 3.14 Special Transfer Provisions.
---------------------------
(a) Transfers to Institutional Accredited Investors. If Securities
-----------------------------------------------
are being transferred to an Institutional Accredited Investor, the Securities
shall be accompanied by delivery of a transferee certificate for Institutional
Accredited
76
Investors substantially in the form of Exhibit H hereto and an opinion of
counsel reasonably satisfactory to the Company to the effect that such transfer
is in compliance with the Securities Act.
(b) Other Transfers. If a Holder proposes to transfer a Security
---------------
pursuant to any exemption from the registration requirements of the Securities
Act other than as provided for above, the Security Registrar shall only register
such transfer or exchange if such transferor delivers to the Security Registrar
and the Trustee an Opinion of Counsel satisfactory to the Company and the
Security Registrar that such transfer is in compliance with the Securities Act
and the terms of this Indenture; provided that the Company may, based upon the
opinion of its counsel, instruct the Security Registrar by a Company Order not
to register such transfer in any case where the proposed transferee is not a
QIB, an Institutional Accredited Investor or a non-U.S. Person.
(c) General. By its acceptance of any Security bearing Legends, each
-------
Holder of such a Security acknowledges the restrictions on transfer of such
Security set forth in this Indenture and in the Legends and agrees that it will
transfer such Security only as provided in this Indenture.
The Security Registrar shall retain copies of all letters, notices and
other written communications received pursuant to Section 3.12 or this Section
3.14 for a period of two years, after which time such letters, notices and other
written communications shall at the written request of the Company be delivered
to the Company. The Company shall have the right to inspect and make copies of
all such letters, notices or other written communications at any reasonable time
upon the giving of reasonable prior written notice to the Security Registrar.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect (except as to surviving
rights of registration of transfer or exchange of Securities 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
77
(1) either
(a) all Securities theretofore authenticated and delivered (other
than (i) Securities which have been destroyed, lost or stolen and which
have been replaced or paid as provided in Section 3.6 and (ii) Securities
for whose payment U.S. Dollars (in the case of the Dollar Denominated
Securities) or European Legal Tender (in the case of the Euro Denominated
Securities) 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
10.3) have been delivered to the Trustee for cancellation; or
(b) (i) all such Securities not theretofore delivered to the Trustee
for cancellation have become due and payable, or (ii) the Company has given
irrevocable and unconditional notice of redemption for all of the
Outstanding Securities within 60 days of such notice pursuant to the
redemption provisions of this Indenture,
and the Company, in the case of (i) or (ii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose an amount sufficient to pay and discharge the entire
Indebtedness on such Securities not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and accrued interest
(and Liquidated Damages, if any,) to the date of such deposit;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company;
(3) the Company has delivered irrevocable instructions to the Trustee
to apply the deposited U.S. Dollars (in the case of the Dollar Denominated
Securities) or European Legal Tender (in the case of the Euro Denominated
Securities) toward the payment of the Securities at Maturity or the Redemption
Date, as the case may be, which must be within 60 days thereof;
(4) the Holders of the Securities have a valid, perfected, exclusive
security interest in such trust; and
(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
78
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 6.7 and, if U.S. Dollars
(in the case of the Dollar Denominated Securities) or European Legal Tender (in
the case of the Euro Denominated Securities) shall have been deposited with the
Trustee pursuant to clause(1)(b) of this Section 4.1, the obligations of the
Trustee under Section 4.2 and the last paragraph of Section 10.3 shall survive.
SECTION 4.2 Application of Trust Money.
--------------------------
Subject to the provisions of the last paragraph of Section 10.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities 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 (and 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.
ARTICLE V
REMEDIES
SECTION 5.1 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 (or Liquidated Damages, if
any) on any Security when it becomes due and payable, and continuance of such
default for a period of 30 days;
(2) default in the payment of the principal of, Accreted Value of or
premium, if any, on any Security as and when the same becomes payable at its
Maturity, or upon redemption, by acceleration or otherwise, including, without
79
limitation, payment of the Change of Control Purchase Price or the Asset Sale
Offer Price, or otherwise on Securities validly tendered and not properly
withdrawn pursuant to a Change of Control Offer or Asset Sale Offer, as
applicable; or
(3) failure to perform any other covenant or agreement of the Company
under this Indenture or Securities and, except for the provisions under Section
10.10, 10.16, Article Eight and Section 10.12, continued for 30 days after
written notice to the Company by the Trustee or to the Company and the Trustee
by Holders of at least 25% in aggregate principal amount at maturity of the
Outstanding Securities;
(4) a default in Indebtedness of the Company or any of its
Subsidiaries with an aggregate amount Outstanding in excess of $50,000,000 (or
its foreign currency equivalent) (a) resulting from the failure to pay principal
at maturity or otherwise at the end of any applicable grace period for such
payment pursuant to the original terms of such Indebtedness or (b) as a result
of which the maturity of such Indebtedness has been accelerated prior to its
stated maturity; or
(5) the rendering of a final judgment or final judgments not covered
by insurance in an amount in excess of $50,000,000 (or its foreign currency
equivalent) at any one time against the Company or any of its Subsidiaries by a
court or courts of competent jurisdiction, which judgment or judgments remain
unbonded, undischarged or unstayed for a period of 60 days after the date on
which the right to appeal all such judgments has expired; 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 or any other applicable federal, state or foreign law, or
appointing a receiver, liquidator, assignee, trustee or 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 60 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
80
Bankruptcy Code or any other applicable federal, state or foreign law, or the
consent by it to the filing of any such petition or to the appointment of a
receiver, liquidator, assignee, trustee or 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
Indebtedness generally as they become due.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default (other than an Event of Default specified in Section 5.1(6)
or 5.1 (7) relating to the Company) occurs and is continuing, then and in every
such case the Trustee or the Holders of not less than 25% in principal amount at
maturity of the Outstanding Securities may declare the Accreted Value and
accrued interest (and Liquidated Damages, if any) of all the Securities to be
due and payable immediately by a notice in writing to the Company (and to the
Trustee if given by Holders) (an "Acceleration Notice"), and upon any such
declaration such Accreted Value, accrued interest (and Liquidated Damages, if
any) shall become immediately due and payable. If an Event of Default specified
in Section 5.1(6) or 5.1(7) relating to the Company occurs and is continuing,
then the Accreted Value and accrued interest (and Liquidated Damages, if any) of
all the Securities shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any Holder.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter provided in this Article Five, the Holders of a
majority in principal amount at maturity of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul 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 Securities,
(B) all unpaid Accreted Value of (and premium, if any, on) any
Outstanding Securities which has become due otherwise than by such declaration
of acceleration, and interest on such unpaid Accreted Value at the rate borne by
the Securities,
81
(C) to the extent that payment of such interest is lawful,
interest on overdue interest at the rate borne by the Securities, 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 existing Events of Default, other than the non-payment of
amounts of Accreted Value, (or premium, if any,) and interest on the Securities
which have become due solely by such declaration of acceleration, and except a
Default with respect to any provision requiring a supermajority approval to
amend, which Default may only be waived by such a supermajority, have been cured
or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if
- -------
(a) default is made in the payment of any installment of interest on
any Security 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 Accreted Value of (or
premium, if any, on) any Security at the Maturity thereof, the Company will,
upon demand of the Trustee, pay to the Trustee for the benefit of the Holders of
such Securities the whole amount then due and payable on such Securities for
Accreted Value (and premium, if any) and interest, and interest on any overdue
Accreted Value (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 Securities, 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
82
Company or any other obligor upon the Securities 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 Securities, 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 5.4 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 Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as herein 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 Accreted Value, 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 Accreted
Value (and premium, if any) and interest (and Liquidated Damages, if any)
owing and unpaid in respect of the Securities and to file such other papers
or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee and 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 or sequestrator (or
other 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
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amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and its agents and counsel, and any other amounts due
the Trustee under Section 6.7.
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 Securities
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 5.5 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities. All rights of action and claims under this Indenture or the
- ----------
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities 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 and its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
SECTION 5.6 Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article Five shall be applied in the following
order, at the date or dates fixed by the Trustee and, in case of the
distribution of such money on account of Accreted Value (or premium, if any) or
interest, upon presentation of the Securities 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 6.7;
SECOND: To the payment of the amounts then due and unpaid for Accreted
Value of (and premium, if any) and interest (and Liquidated Damages, if any) on
the Securities 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 Securities for Accreted Value (and
premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Person or Persons entitled thereto.
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SECTION 5.7 Limitation on Suits. No Holder of any Securities 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) the Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal amount at
maturity of the Outstanding Securities 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) the Trustee is indemnified and/or secured (whether by payment in
advance or otherwise) to its reasonable satisfaction;
(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
aggregate principal amount at maturity of the Outstanding Securities; it being
understood and intended that no one or more Holders shall have any right in any
manner whatsoever 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 5.8 Unconditional Right of Holders to Receive Principal,
----------------------------------------------------
Premium and Interest. Notwithstanding any other provision in this Indenture,
- --------------------
the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment as provided herein (including, if applicable,
Article Twelve) and in such Security of the Accreted Value of (and premium, if
any) and (subject to Section 3.7) interest (and Liquidated Damages, if any) on
such Security on the respective Stated Maturities expressed in such Security
(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.
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SECTION 5.9 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 5.10 Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 3.6, 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 5.11 Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security 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 Five 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 5.12 Control by Holders. The Holders of not less than a
------------------
majority in aggregate principal amount at maturity of the Outstanding Securities
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
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(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders not consenting
unless it has received indemnity reasonably satisfactory to it.
SECTION 5.13 Waiver of Past Defaults. The Holders of a majority in
-----------------------
aggregate principal amount at maturity of the Outstanding Securities may on
behalf of the Holders of all the Securities waive any past Default hereunder and
its consequences, except a Default
(1) in respect of the payment of the principal of, Accreted Value of
(or premium, if any), or interest (and Liquidated Damages, if any) on any
Security, or
(2) in respect of a covenant or provision hereof which cannot be
modified or amended without the approval of a supermajority, which Default may
only be waived by such a supermajority; or
(3) 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 Security affected.
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 5.14 Waiver of Stay or Extension Laws. The Company covenants
--------------------------------
(to the extent that it may lawfully do so) that it shall 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
shall not hinder, delay or impede the execution of any power herein granted to
the Trustee, but shall suffer and permit the execution of every such power as
though no such law had been enacted.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
-----------------------------------
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only such duties
as are specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but, in the case
of any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they reasonably conform
to the requirements of this Indenture.
(b) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own grossly negligent action, its own grossly
negligent failure to act or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the effect of
paragraph (a) of this Section 6.1;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Responsible Officer, unless it shall be proved that the Trustee
was grossly negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action taken
or omitted to be taken by it in good faith in accordance with the direction of
the
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Holders of the requisite amount of the Outstanding Securities relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee; and
(4) no provision of this Indenture shall require the Trustee to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its 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 indemnity reasonably satisfactory to it against such
risk or liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.1.
SECTION 6.2 Notice of Default. Within 60 days after being notified
-----------------
or becoming aware of the occurrence of any Default hereunder, the Trustee shall
transmit, in the manner and to the extent provided in TIA Section 313(c), notice
of such Default hereunder known to any Responsible Officer of the Trustee,
unless such Default shall have been cured or waived; provided, however, that,
except in the case of a Default in the payment of the Accreted Value of (or
premium, if any) or interest on any Security, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interest of the Holders.
SECTION 6.3 Certain Rights of Trustee. Subject to Section 6.1 and to
-------------------------
the provisions of TIA Sections 315(a) through 315(d):
(1) the Trustee may conclusively rely and shall be fully 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 Supervisory Board of the Company may be sufficiently evidenced by a Board
Resolution;
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(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,
receive and conclusively rely upon an Officers' Certificate and/or an Opinion of
Counsel;
(4) the Trustee may consult with counsel and other professional
advisers and the written advice of such counsel or advisers 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 the Trustee is indemnified
and/or secured (whether by payment in advance or otherwise) to its reasonable
satisfaction;
(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, nominees,
custodians, delegates or attorneys and the Trustee shall not be responsible for
supervising the actions of such agent, nominee, custodian, delegate or attorney,
nor for any misconduct or negligence on the part of any agent, nominee,
custodian, delegate or attorney appointed with due care by it hereunder;
(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; and
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(9) the Trustee shall be entitled to assume that there has been no
Event of Default and that the Company has complied with all of its obligations
hereunder, unless a Responsible Officer of the Trustee has knowledge to the
contrary thereof.
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 assured to it.
SECTION 6.4 Trustee Not Responsible for Issuance of Securities.
---------------------------------------------------
The Trustee makes no representations as to the validity or sufficiency of
this Indenture or of the Securities, except that the Trustee represents that it
is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5 May Hold Securities. The Trustee, any Paying Agent, any
-------------------
Security 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 Securities
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,
Security Registrar or such other agent.
SECTION 6.6 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 6.7 Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time 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) as agreed in writing between the Company and the Trustee;
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(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 the Trustee's gross negligence or bad
faith; and
(3) to indemnify the Trustee and its directors, officers, employees
and agents for, and to hold them harmless against, any loss, liability or
expense (including counsel's fees and expenses) without gross negligence or bad
faith on the part of any of them, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself or themselves against any claim or liability in connection with
the exercise or performance of any of its or their powers or duties hereunder.
Upon the occurrence of an Event of Default or a potential Event of
Default or upon the Trustee being required, or considering it necessary, to
undertake duties outside the usual scope of a Trustee, the Trustee will be
entitled to charge additional fees as agreed upon in writing with the Company.
The obligations of the Company under this Section 6.7 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 or the earlier resignation or removal of the
Trustee. As security for the performance of such obligations of the Company,
the Trustee shall have a claim prior to the Securities upon all property and
funds held or collected by the Trustee as such.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 5.1(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 6.7 shall survive the termination of
this Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests.
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(a) There shall be at all times a Trustee hereunder which shall be
subject to and comply with the provisions of Section 310(a)(1) of the Trust
Indenture Act 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 6.8, 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
6.8, it shall resign immediately in the manner and with the effect hereinafter
specified in this Article Six.
(b) The Trustee shall be subject to and comply with Section 310(b) of
the Trust Indenture Act.
SECTION 6.9 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 6.10.
(b) The Trustee may resign at any time by giving 60 days' written
notice thereof to the Company and without assigning any reason thereto or being
responsible for any costs or expenses occasioned thereby. If the instrument of
acceptance by a successor Trustee required by Section 6.10 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may on behalf of the Company, appoint in its
place a reputable financial institution and the Company shall not unreasonably
object to such appointment or 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 aggregate principal amount at maturity of the
Outstanding Securities, delivered to the Trustee and to the Company.
(d) If at any time:
93
(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 Security for at least six months, (in the
case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), or
(2) the Trustee shall cease to be eligible under Section 6.8(a) 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 Security for at least six months (in
the case of Global Securities, as evidenced in writing to the Trustee by the
relevant Depositary or Euroclear or Cedelbank), 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, 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 Security for at least six months, (in the case of Global
Securities, as evidenced in writing to the Trustee by the relevant Depositary or
Euroclear or Cedelbank), 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 aggregate principal amount at maturity of the
Outstanding Securities 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 Security for at least
six months, (in the case of Global Securities, as evidenced in writing to the
Trustee by the relevant Depositary or Euroclear or Cedelbank), may on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
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(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
Securities in the manner provided for in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust Office.
(g) The retiring Trustee shall not be liable for any of the acts or
omissions of any successor Trustee appointed hereunder.
SECTION 6.10 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 fees, costs, expenses,
charges and any other amounts owed to it hereunder, 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.
SECTION 6.11 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 that such Corporation shall be otherwise qualified and eligible under
this Article Six, without the execution or filing of any paper or any further
act on the part of any of the parties hereto. In case any Securities 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 Securities so authenticated
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with the same effect as if such successor Trustee had itself authenticated such
Securities. In case at that time any of the Securities shall not have been
authenticated, any successor Trustee may authenticate such Securities 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 that 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 Securities in the
name of any predecessor Trustee shall apply only to its successor or successors
by merger, conversion or consolidation.
SECTION 6.12 Trustee Acting in Other Capacities. To the extent that
-----------------------------------
the Trustee, Banque Internationale a Luxembourg or any other Person appointed
hereunder as Trustee or Paying Agent is acting as Securities Registrar, Common
Depository, Depository or Paying Agent hereunder, the rights, privileges,
immunities and indemnities set forth in this Article Six shall apply to the
Trustee in the additional capacities listed above.
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Disclosure of Names and Addresses of Holders. Every
--------------------------------------------
Holder of Securities, 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 3.12, 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 7.2 Reports by Trustee. Within 60 days after May 30 of each
------------------
year commencing with the first May 30 after the first issuance of Securities,
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 May 30 if
required by TIA Section 313(a).
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SECTION 7.3 Reports by Company. The Company shall file with the
------------------
Trustee and deliver to the Holders of Securities the reports and other
information required to be provided by it pursuant to Section 10.8.
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not, in a single transaction or a series of related
transactions, (i) consolidate with or merge into any other Person or Persons or
(ii) directly or indirectly, sell, lease, convey or transfer all or
substantially all of its assets (computed on a Consolidated basis) to any other
Person or group of affiliated Persons, unless:
(1) either (a) the Company is the continuing entity or (b) the
resulting, surviving or transferee entity is a Corporation organized under the
laws of The Netherlands or of the United States of America or any state or the
District of Columbia, any member of the European Economic Area or Switzerland
and expressly assumes by supplemental indenture all of the obligations of the
Company in connection with the Securities and this Indenture;
(2) no Default or Event of Default shall exist or shall occur
immediately after giving effect on a pro forma basis to such transaction;
(3) unless such transaction is solely the merger of the Company and
one of its previously existing Wholly Owned Subsidiaries and which transaction
is not in connection with any other transaction, immediately after giving effect
to such transaction, on a pro forma basis, the Consolidated resulting, surviving
or transferee entity would immediately thereafter be permitted to incur at least
$1.00 of additional Indebtedness pursuant to the Debt Incurrence Ratio set forth
in Section 10.11 or, if not, the Leverage Ratio would immediately thereafter be
no greater than the Leverage Ratio immediately prior thereto;
(4) each Subsidiary Guarantor, unless such Subsidiary Guarantor is the
Person with which the Company has entered into a transaction under this section,
shall have by amendment to its Guarantee of the Securities confirmed that its
Guarantee of the Securities shall apply to the obligations of the Company or the
surviving entity in accordance with the Securities and this Indenture; and
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(5) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each in form attached hereto as Exhibits F and G
respectively, stating that such consolidation, merger, conveyance, transfer,
lease or acquisition and, if a supplemental indenture is required in connection
with such transaction, such supplemental indenture, complies with this Article
and that all conditions precedent herein provided for relating to such
transaction have been complied with, and, with respect to such Officers'
Certificate.
For purposes of this Section 8.1, the transfer (by lease, assignment,
sale or otherwise) of all or substantially all of the properties and assets of
one or more Subsidiaries, the Company's interest in which constitutes all or
substantially all of the properties and assets of the Company, shall be deemed
to be the transfer of all or substantially all of the properties and assets of
the Company.
SECTION 8.2 Successor Substituted. Upon any consolidation of the
---------------------
Company with or merger of the Company with or into any other Corporation or any
conveyance, transfer or lease of the properties and assets of the Company
substantially as an entirety to any Person or Persons in accordance with
Section 8.1, the successor Person formed by such consolidation or into which the
Company is merged or to which such conveyance, transfer or lease is made shall
succeed to, and (except in the case of a lease) be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein,
and, in the event of any such conveyance or transfer (except in the case of a
lease), the Company shall be discharged of all obligations under this Indenture
and the Securities except with respect to any obligations that arise from, or
are related to, such transaction.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Indentures Without Consent of Holders. Without the
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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 and substance satisfactory to the
Trustee, for any of the following purposes:
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(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company contained
herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default; or
(4) to provide for uncertificated Securities in addition to or in
place of certificated Securities; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee pursuant to the requirements of Section 6.10;
or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to make any
other provisions with respect to matters or questions arising under this
Indenture; provided that such action shall not adversely affect the interests of
the Holders in any material respect; or
(7) to provide for collateral securing the Company's obligations under
this Indenture and the Securities; or
(8) to provide for Guarantees by any other Person of the Company's
obligations pursuant to this Indenture and the Securities;
provided such actions shall not adversely affect the interests of Holders in any
material respect.
SECTION 9.2 Indentures with Consent of Holders. With the consent of
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the Holders of not less than a majority in aggregate principal amount at
maturity of the Outstanding Securities, 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:
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(i) no such modification may, without the consent of Holders of at
least 66 2/3% in aggregate principal amount at maturity of
Outstanding Securities, modify the provisions of Section 10.10
(including the defined terms used therein) in a manner adverse to
the Holders; and
(ii) no such modification shall, without the consent of the Holder of
each Outstanding Security affected thereby:
(1) change the Stated Maturity of any Security, or reduce the
principal amount or Accreted Value at maturity thereof or the rate of accretion
or interest (or extend the time for payment of interest, if any) thereon or any
premium payable upon the redemption thereof at the option of the Company, or
change the place of payment where, or the coin or currency in which, any
Security or any premium or the interest thereon is payable, or impair the right
to institute suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption at the option of the Company, on
or after the Redemption Date), or reduce the Change of Control Purchase Price or
the Asset Sale Offer Price after the corresponding Change of Control or Asset
Sale has occurred or alter the provisions (including the defined terms used
therein) regarding the right of the Company to redeem the Securities in a manner
adverse to the Holders, or
(2) reduce the percentage in principal amount at maturity of the
Outstanding Securities, the consent of whose Holders is required for any such
amendment, supplemental indenture or waiver provided for in this Indenture, or
(3) modify any of the waiver provisions, except to increase any
required percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(4) cause the Securities to become subordinate in right of payment to
any other Indebtedness.
It shall not be necessary for any Act of Holders under this Section
9.2 to approve the particular form of any proposed supplemental indenture, but
it shall be sufficient if such Act shall approve the substance thereof.
SECTION 9.3 Execution of Indentures. In executing, or accepting the
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additional trusts created by, any supplemental indenture permitted by this
Article
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Nine or the modifications thereby of the trusts created by this Indenture, the
Trustee shall receive, and shall be fully protected in relying upon, an Opinion
of Counsel stating that the execution of such supplemental indenture is
permitted by this Indenture and an Officers' Certificate stating that all
conditions precedent to the execution of such supplemental indenture have been
fulfilled. 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 9.4 Effect of Indentures. Upon the execution of any
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supplemental indenture under this Article Nine, 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 Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 Conformity with Trust Indenture Act. Every supplemental
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indenture executed pursuant to this Article Nine shall conform as a matter of
contract or law to the requirements of the Trust Indenture Act as then in
effect.
SECTION 9.6 Reference in Securities to Indentures. Securities
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authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article Nine may bear a notation in form approved by the
Trustee and the Company as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities 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 Securities.
SECTION 9.7 Notice of Indentures. Promptly after the execution by
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the Company and the Trustee of any supplemental indenture pursuant to the
provisions of Section 9.2, the Company shall give notice thereof to the Holders
of each Outstanding Security affected, in the manner provided for in Section
1.6, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE X
COVENANTS
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SECTION 10. Payment of Principal, Premium, if Any, and Interest. (1)
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The Company covenants and agrees for the benefit of the Holders that it shall
duly and punctually pay the principal or Accreted Value of (and premium, if any)
and interest on the Securities in accordance with the terms of the Securities
and this Indenture.
(2) For the purpose set forth in paragraph (1) above, the Company
shall, no later than 10:00 a.m., New York time, on the Business Day first
preceding each Payment Date, transfer to an account specified by the Trustee
such amount in immediately available and freely transferable U.S. Dollar funds,
in the case of Dollar Denominated Securities, or Euro funds, in the case of Euro
Denominated Securities, as shall be sufficient for the purposes of the payment
of principal of (and premium, if any) and interest (and Liquidated Damages, if
any) due to be paid on the Securities on that date.
(3) The Company shall ensure that not later than the second Business
Day immediately preceding the date on which any payment is to be made to the
Trustee pursuant to this Section 10.1, the Company shall procure that a copy of
an irrevocable payment instruction to the bank through which the payment is to
be made shall be sent to the Trustee.
(4) Unless and until the full amount of any payment due on the
Securities has been made to the Trustee, or unless and until the Trustee is
satisfied that such payment will be made, neither it nor the other Paying Agents
shall be bound to make payments in respect of the Securities hereunder.
(5) If the Trustee or a Paying Agent pays any amounts to the Holders
or to any other Agent at a time when it has not received payment in full from
the Company in respect of such Securities, the Company shall, in addition to
paying amounts due under Section 10.1(2), pay to the Trustee on demand interest
thereon at such a rate as the Trustee shall certify as the aggregate of 1% per
annum and the cost of funding any such payment made by it (as determined by the
Trustee) until the receipt in full by the Trustee of the funds due to it
pursuant to Section 10.1(2).
SECTION 10.2 Maintenance of Office or Agency. The Company shall
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maintain in The City of New York and London, and for so long as the Securities
are listed on the Luxembourg Stock Exchange, in Luxembourg, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange and where
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notices and demands (other than service of process) to or upon the Company in
respect of the Securities and this Indenture may be served. The Corporate Trust
Office of the Trustee shall 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 hereby initially designates (1) the Trustee at its address
set forth in Section 1.5 hereof as its office or agency in London and Citibank
N.A. (New York branch), 111 Wall Street, New York, New York as its office or
agency in New York, for such purposes, (ii) Banque Internationale a Luxembourg,
at its office or agency in Luxembourg for such purposes and (iii) the Paying
Agent at its address set forth in Section 1.5 hereof.
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 Securities
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 and, for so
long as the Securities are listed on the Luxembourg Stock Exchange, in
Luxembourg, 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 10.3 Money for Security Payments to Be Held in Trust. If the
-----------------------------------------------
Company shall at any time act as its own Paying Agent, it shall, on or before
each due date of the principal or Accreted Value of (or premium, if any) or
interest on any of the Securities, segregate and hold in trust for the benefit
of the Persons entitled thereto a sum sufficient to pay the principal or
Accreted Value of (or 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.
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Whenever the Company shall have one or more Paying Agents for the
Securities, it shall, on or before each due date of the principal or Accreted
Value of (or premium, if any) or interest on any Securities, deposit with a
Paying Agent a sum sufficient to pay the principal or Accreted Value (and
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 or Accreted Value, 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 10.3,
that such Paying Agent shall:
(1) hold all sums held by it for the payment of the principal or
Accreted Value of, premium, if any, or interest on Securities 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 Securities) in the making of any payment of principal or
Accreted Value, premium, if any, or interest, of which it is aware;
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith act under the direction of the Trustee
and pay to the Trustee all sums so held in trust by such Paying Agent; and
(4) indemnify the Trustee and its officers, directors, employees and
agents against any loss, cost or liability caused by, or incurred as a result
of, such Paying Agent's acts or omissions.
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.
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Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal or Accreted Value of,
premium, if any, or interest on any Security and remaining unclaimed for two
years after such principal or Accreted Value, 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
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, 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 and in London,
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.
SECTION 10.4 Corporate Existence. Subject to Article Eight, the
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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, with respect to the Company, any
such right or franchise or, with respect to any Subsidiary (subject to all the
other covenants in this Indenture), any such corporate existence, right or
franchise, if the Supervisory Board of the Company 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 10.5 Payment of Taxes and Other Claims. The Company shall
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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
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tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith by appropriate proceedings.
SECTION 10.6 Maintenance of Properties. The Company shall cause all
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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 shall cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 10.6 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 10.7 Insurance. The Company shall at all times keep all of
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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.
SECTION 10.8 Provision of Financial Statements. The Company has
---------------------------------
agreed that, for so long as any Securities remain Outstanding, whether or not
the Company is subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act, the Company will deliver to the Trustee and, to each Holder
and to prospective purchasers of Securities identified to the Company, within 15
days after the Company is or would have been (if the Company were subject to
such reporting obligations) required to file such with the SEC, annual and
quarterly financial statements substantially equivalent to financial statements
that would have been included in reports filed with the SEC, if the Company were
subject to the requirements of Section 13 or 15(d) of the Exchange Act,
including, with respect to annual information only, a report thereon by the
Company's certified independent public accountants as such would be required in
such reports to the SEC, and, in each case, together with a management's
discussion and analysis of financial condition and results of operations which
would be so required and, unless the SEC will not accept such reports, file with
the SEC the annual, quarterly and other reports which it is or would have been
required to file with the SEC.
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Following the effectiveness of the Registration Statement, the Company
will file with the Trustee, at the time it files them with the SEC, copies of
the annual and quarterly reports and the information, documents and other
reports that the Company is required to file with the SEC under Section 13(a) or
15(d) of the Exchange Act. If the Company ceases to be required to file SEC
reports under the Exchange Act, the Company will nevertheless continue to file
such reports with the Trustee. The Company will furnish copies of the SEC
reports to investors who request them in writing.
SECTION 10.9 Statement by Officers as to Default.
-----------------------------------
(a) The Company shall deliver to the Trustee, on the date of delivery
of each quarterly report to be delivered pursuant to Section 10.8, and within 14
days of a request by the Trustee, a brief certificate from the principal
executive officer, principal financial officer or principal accounting officer
as to his or her knowledge of the Company's compliance with all conditions and
covenants under this Indenture. For purposes of this Section 10.9(a), such
compliance 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 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 $50,000,000), the Company
shall deliver to the Trustee by registered or certified mail or by facsimile
transmission an Officers' Certificate specifying such event, notice or other
action within five Business Days of its occurrence.
SECTION 10.10 Purchase of Securities upon Change of Control.
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(1) (a) Upon the occurrence of a Change of Control, the Company will
be required to make an offer to each Holder to purchase for cash all or a
portion of such Holder's Securities (provided that the principal amount at
maturity of such Securities must be $1,000 (or pound sterling 1,000, as
applicable) or an integral multiple thereof) pursuant to the offer described
below (the "Change of Control Offer"), at a purchase price in cash equal to 101%
of the Accreted Value thereof on the purchase date plus accrued and unpaid
interest (and Liquidated Damages, if any) not otherwise
107
included in the Accreted Value to the date of purchase (the "Change of Control
Purchase Price").
(b) Within 10 Business Days following a Change of Control, the Company
must send a notice to each Holder which notice shall govern the terms of the
Change of Control Offer. Such notice shall state, among other things, the
purchase date, which must be no later than 35 Business Days from the date of the
Change of Control, other than as may be required by law (the "Change of Control
Purchase Date"). The Change of Control Offer shall remain open for 20 Business
Days following its commencement (the "Change of Control Offer Period"). Upon
expiration of the Change of Control Offer Period, the Company shall promptly
purchase all Notes properly tendered in response to the Change of Control Offer.
Holders electing to have a Security purchased pursuant to a Change of Control
Offer will be required to surrender the Security, by delivery of a form entitled
"Option of Holder to Elect Purchase", obtainable from the Trustee or any Paying
Agent substantially in the form of Exhibit I hereto, completed, to the Paying
Agent at the address specified in the notice prior to the close of business on
the third Business Day prior to the Change of Control Purchase Date. The Paying
Agent promptly will pay the Holders of Securities so accepted an amount equal to
the Change of Control Purchase Price (together with accrued and unpaid interest
and Liquidated Damages, if any) and the Trustee promptly will authenticate and
deliver to such Holders a new Security equal in principal amount at maturity to
any unpurchased portion of the Security surrendered. The Company will publicly
announce the results of the Change of Control Offer on or as soon as practicable
after the Change of Control Purchase Date.
The notice referred to above shall be a written offer (the "Offer")
sent by the Company by first class mail, postage prepaid, to each Holder of
Securities at its address appearing in the Security Register on the date of the
Offer offering to purchase up to the principal amount at maturity of Securities
specified in such Offer at the Change of Control Purchase Price. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Change of Control Offer which shall be, subject
to any contrary requirements of applicable law, 20 Business Days after the date
of the Offer and a settlement date (the "Change of Control Purchase Date") for
purchase of Securities within five Business Days after the Expiration Date. The
Company shall notify the Trustee in writing at least 15 Business Days, or a
shorter period that is acceptable to the Trustee, prior to the mailing of the
Offer of the Company's obligation to make a Change of Control Offer, and the
Offer shall be mailed by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company. The Offer shall contain
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information concerning the business of the Company and its Subsidiaries which
the Company in good faith believes will enable the Holders to make an informed
decision with respect to the Change of Control Offer, which at a minimum will
include (i) the most recent annual and quarterly financial statements and
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" contained in the documents required to be filed with the Trustee
pursuant to Section 10.8 (which requirements may be satisfied by delivery of the
documents together with the Offer), (ii) a description of material developments
in the Company's business subsequent to the date of the latest of the financial
statements referred to in clause (i) (including a description of the events
requiring the Company to make the Change of Control Offer), (iii) if applicable,
appropriate pro forma financial information concerning the Change of Control
Offer and the events requiring the Company to make the Change of Control Offer
and (iv) any other information required by applicable law to be included
therein. The Offer shall contain all instructions and materials necessary to
enable the Holders to tender Securities pursuant to the Change of Control Offer.
The Offer shall also state:
(a) the Section of this Indenture pursuant to which the Offer to
Purchase is being made;
(b) the Expiration Date and the Change of Control Purchase Date;
(c) the aggregate principal amount at maturity of the Outstanding
Securities offered to be purchased by the Company in the Change of Control
Offer, including, if less than 100%, the manner by which the amount has been
determined pursuant to the Section hereof requiring the Change of Control Offer
(the "Purchase Amount");
(d) the Change of Control Purchase Price;
(e) that the Holder may tender all or any portion of the Securities
registered in the name of the Holder and that any portion of a Security tendered
must be tendered in an integral multiple of $1,000 (or pound sterling 1,000, as
applicable) principal amount at maturity;
(f) the place or places where the Securities are to be surrendered for
tender pursuant to the Change of Control Offer;
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(g) that any of the Securities not tendered or tendered but not
purchased by the Company will continue to accrete or accrue interest, as the
case may be;
(h) that on the Change of Control Purchase Date the Purchase Price
will become due and payable upon the Securities being accepted for payment
pursuant to the Change of Control Offer and that any interest shall cease to
accrue on and after the Change of Control Purchase Date;
(i) that each Holder electing to tender the securities in the purchase
will be required to surrender the Securities at the place or places specified in
the Offer prior to the close of business on the Expiration Date with the
Securities being, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee duly signed by, the
Holder or his attorney duly authorized in writing;
(j) that Holders will be entitled to withdraw all or any portion of
the Securities tendered if the Company or its Paying Agent receives, not later
than the close of business on the Expiration Date, a facsimile transmission or
letter setting forth the name of the Holder, the principal amount at maturity of
the Securities the Holder tendered, the certificate number of the Securities the
Holder tendered and a statement that such Holder is withdrawing all or a portion
of his tender;
(k) that (i) if the Securities in an aggregate principal amount at
maturity less than or equal to the Purchase Amount are duly tendered and not
withdrawn in the Purchase, the Company shall purchase all the Securities and
(ii) if the Securities in an aggregate principal amount at maturity in excess of
the Purchase Amount are tendered and not withdrawn in the Change of Control
Offer, the Company shall purchase the Securities having an aggregate principal
amount at maturity equal to the Purchase Amount on a pro rata basis with
adjustments that the Company may deem appropriate so that only Securities in
denominations of $1,000 (or pound sterling 1,000, as applicable) principal
amount at maturity or integral multiples thereof shall be purchased; and
(l) that in the case of any Holder whose Securities are purchased only
in part, the Company shall sign, and the Trustee shall authenticate and deliver
to the Holder of the Securities without service charge, the new Security or
Securities, of any authorized denomination as requested by the Holder, in an
aggregate principal
110
amount at maturity equal to and in exchange for the unpurchased portion of the
Securities so tendered.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Change of Control Offer.
The Company will not be required to make an offer to purchase any
series of Securities upon a Change of Control if, before the Change of Control
occurs, it has exercised its right to redeem all of the Securities of such
series as described under Section 11.1.
(2) On or before the Change of Control Purchase Date, the Company
shall (i) accept for payment Securities or portions thereof tendered pursuant to
the Change of Control Offer, (ii) deposit with the Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) cash sufficient to pay the purchase price (together
with accrued and unpaid interest and Liquidated Damages, if any) of all
Securities or portions thereof so accepted and (iii) deliver or cause to be
delivered to the Trustee all Securities so tendered together with an Officers'
Certificate stating the Securities or portions thereof accepted for payment by
the Company.
(3) In the event that the Company makes a Change of Control Offer, the
Company shall comply with any applicable securities laws and regulations,
including any applicable requirements of Section 14(e) of, and Rule 14e-1 under,
the Exchange Act.
(4) If the Change of Control Purchase Date hereunder is on or after an
interest payment Record Date and on or before the associated Interest Payment
Date, any accrued and unpaid interest (and Liquidated Damages, if any) due on
such Interest Payment Date will be paid to the Person in whose name a Security
is registered at the close of business on such Record Date, and such interest
(and Liquidated Damages, if applicable) will not be payable to Holders who
tender the Securities pursuant to the Change of Control Offer.
Notwithstanding anything contained in this Indenture to the contrary,
the Company will not, any will not permit any of its Subsidiaries to, incur any
Indebtedness that is contractually subordinate to any other Indebtedness of the
Company unless such Indebtedness is at least as subordinate to the Securities.
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SECTION 10.11 Limitation on Incurrence of Additional Indebtedness
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and Disqualified Capital Stock. (1) The Company may not, and may not permit any
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Subsidiary to, directly or indirectly, issue, assume, guaranty, incur, become
directly or indirectly liable with respect to (including as a result of an
Acquisition), or otherwise become responsible for, contingently or otherwise
(individually and collectively, to "incur" or, as appropriate, an
"incurrence"), any Indebtedness (including Disqualified Capital Stock and
Acquired Indebtedness), other than Permitted Indebtedness. Notwithstanding the
foregoing if:
(i) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect on a pro forma
basis to, such incurrence of Indebtedness; and
(ii) on the date of such incurrence (the "Incurrence Date"), either
(i) the Leverage Ratio of the Company for the Reference Period immediately
preceding the Incurrence Date, after giving effect on a pro forma basis to such
incurrence of such Indebtedness and, to the extent set forth in the definition
of Leverage Ratio, the use of proceeds thereof, would not exceed 7.0 to 1.0 (the
"Debt Incurrence Ratio"), (ii) the Consolidated Coverage Ratio of the Company
for the Reference Period immediately preceding the Incurrence Date, after giving
effect on a pro forma basis to such incurrence of such Indebtedness and, to the
extent set forth in the definition of Consolidated Coverage Ratio, the use of
proceeds thereof, would not be less than 1.75 to 1.0, or (iii) after giving
effect on a pro forma basis to such incurrence of Indebtedness, and, to the
extent used to retire other Indebtedness, the use of proceeds therefrom, the
amount of Indebtedness Outstanding of the Company would not exceed 225% of the
Consolidated Invested Equity Capital of the Company, then the Company may incur
such Indebtedness (including Disqualified Capital Stock and Acquired
Indebtedness).
(2) The foregoing limitations of paragraph (1) of this Section 10.11 will
not prohibit:
(a) if no Event of Default shall have occurred and be continuing, the
incurrence by the Company or its Subsidiaries of Indebtedness in an aggregate
amount incurred and Outstanding at any time pursuant to this subparagraph (a)
(plus any refinancing indebtedness incurred to retire, defease, refinance,
replace or refund such Indebtedness) of up to $400,000,000 (or the equivalent
thereof, at the time of incurrence, in the applicable foreign currencies);
112
(b) the incurrence by the Company and its Subsidiaries of Indebtedness
pursuant to the Credit Agreement in an aggregate amount incurred and Outstanding
at any time pursuant to this paragraph (b) (plus any refinancing indebtedness
incurred to retire, defease, refinance, replace or refund such Indebtedness) of
up to pound sterling 1 billion, minus the amount of any such Indebtedness (i)
retired with the Net Cash Proceeds from any Asset Sale applied to reduce
permanently the Outstanding amounts or the commitments with respect to such
Indebtedness pursuant to Section 10.16 or (ii) assumed by a transferee in an
Asset Sale;
(c) the incurrence by any Subsidiary of Indebtedness, if on the
Incurrence Date either (1) the Leverage Ratio of such Subsidiary of the Company
for the Reference Period immediately preceding the Incurrence Date, after giving
effect on a pro forma basis to such incurrence of such Indebtedness and to the
extent set forth in the definition of Leverage Ratio, the use of proceeds
thereof, would be no more than 7.0 to 1.0, or (2) the Consolidated Coverage
Ratio of such Subsidiary for the Reference Period immediately preceding the
Incurrence Date, after giving effect on a pro forma basis to such incurrence of
such Indebtedness and, to the extent set forth in the definition of Consolidated
Coverage Ratio, the use of proceeds thereof, would be no less than 1.75 to
1.00, or (3) after giving effect on a pro forma basis to such incurrence of such
Indebtedness, and, to the extent used to retire other Indebtedness, the use of
proceeds therefrom, the amount of Indebtedness Outstanding of such Subsidiary
would not exceed 225% of the Consolidated Invested Equity Capital of such
Subsidiary, provided in the case of each of clauses (c)(1), (2) and (3), the
net proceeds therefrom are used in a Related Business of the Company or any
affiliated company of the Company, and provided, further, that for the purposes
of this clause (c) a Subsidiary may be a co-obligor or guarantor on such
Indebtedness of another Subsidiary of the Company (A) if such co-obligor or
guarantor Subsidiary owns (either directly or indirectly through one or more
Subsidiaries of the Company) all or a portion of the Equity Interests of the
Subsidiary of the Company that incurred such Indebtedness, (B) if all or a
portion of the Equity Interests of such co-obligor or guarantor Subsidiary is
owned (either directly or indirectly through one or more Subsidiaries of the
Company) by the Subsidiary that incurred such Indebtedness or (C) if such co-
obligor or guarantor Subsidiary owns (either directly or indirectly through one
or more Subsidiaries of the Company) all or a portion of the business that will
use the proceeds of such Indebtedness; and
(d) if no Event of Default shall have occurred and be continuing, the
incurrence by Subsidiaries of the Company of Indebtedness pursuant to the
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Existing Agreements up to, but not in excess of the maximum applicable amounts
of Indebtedness available for borrowing pursuant to the terms of each such
Existing Agreement as in effect on the date of the Indenture; provided that, in
determining the maximum applicable amounts available, it shall be assumed that
the Company satisfies any applicable conditions to borrowing.
Indebtedness (including Disqualified Capital Stock) of any Person which is
Outstanding at the time such Person becomes a Subsidiary of the Company
(including upon designation of any subsidiary or other Person as a Subsidiary)
or is merged with or into or Consolidated with the Company or a Subsidiary of
the Company shall be deemed to have been incurred at the time such Person
becomes such a Subsidiary of the Company or is merged with or into or
Consolidated with the Company or a Subsidiary of the Company, as applicable.
Upon each incurrence, the Company may designate pursuant to which provision
of this Section 10.11 such Indebtedness is being incurred and such Indebt-
edness shall not be deemed to have been incurred or Outstanding under any other
provision of this Section 10.11, except as stated otherwise in the foregoing
provisions.
SECTION 10.12 Limitation on Restricted Payments. (1) The Company may
---------------------------------
not, and may not permit any of its Subsidiaries to, directly or indirectly,
make any Restricted Payment if, after giving effect to such Restricted Payment
on a pro forma basis:
(A) a Default or an Event of Default shall have occurred and be continu-
ing,
(B) the Company is not permitted to incur at least $1.00 (or its foreign
currency equivalent) of additional Indebtedness pursuant to the Debt Incurrence
Ratio in Section 10.11, or
(C) the aggregate amount of all Restricted Payments made by the Company
and its Subsidiaries, including after giving effect to such proposed Restricted
Payment, on and after July 30, 1999, would exceed, without duplication (and
except to the extent otherwise credited pursuant to clause (g) of the definition
of "Permitted Investment"), the sum of:
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(a) (i) the amount of the cumulative Consolidated EBITDA of the
Company, if positive, less 150% of the cumulative Consolidated Fixed Charges of
the Company, for the period (taken as one accounting period), commencing on the
first day of the first full fiscal quarter commencing after July 30, 1999, to
and including the last day of the fiscal quarter ended immediately prior to the
date of each such calculation for which Consolidated financial statements of the
Company are available, provided that such sum shall not be deemed to result in
an amount less than zero for purposes of any calculation pursuant to this clause
(C)(a)(i); or (ii) if such cumulative Consolidated EBITDA of the Company is zero
or less, then the amount of such cumulative Consolidated EBITDA for such period;
plus
(b) the aggregate Net Cash Proceeds received by the Company from the
sale of its Qualified Capital Stock (other than (i) to a Subsidiary of the
Company and (ii) to the extent applied in connection with a Qualified Exchange),
after July 30, 1999; plus
(c) to the extent that any Investment (other than a Permitted
Investment) that was made after July 30, 1999 is sold for cash or Cash
Equivalents or otherwise liquidated or repaid for cash or Cash Equivalents, the
amount of cash or Cash Equivalents received by the Company, but only to the
extent of the lesser of (i) the cash or Cash Equivalents transferred as a return
of capital with respect to such Investment and (ii) the initial amount of such
Investment (in either case, less the cost of disposition, if any); plus
(d) in the event an Unrestricted Subsidiary is designated as a
Subsidiary, an amount equal to fair market value, at such time, of the
Investment of the Company and its Subsidiaries made after July 30, 1999;
provided, however, that such amount shall not exceed the amount of Investments
previously made in such Subsidiary that were counted as Restricted Payments
pursuant to this covenant.
(2) (a) The foregoing clauses (B) and (C) of Section 10.12(1),
however, will not prohibit: (i) any dividend, distribution or payment of
dividends on Disqualified Capital Stock permitted by Section 10.11; and (ii) any
repurchase by the Company of any shares of any class or options to acquire such
shares from any current, future or former directors, officers or employees of
the Company or any of its Subsidiaries or Affiliates, provided that the
aggregate amount of all the repurchases made under this clause shall not exceed
$10,000,000 in any twelve-month period (with unused amounts in any calendar year
being carried over to succeeding calendar years subject to a maximum (without
giving effect to the following proviso)
115
of $14,000,000 in any calendar year); provided, further, that such amount in any
calendar year may be increased by an amount not to exceed (1) the cash proceeds
from the sale of Capital Stock of the Company to its Supervisory Board members,
management board members or officers of the Company and its Subsidiaries that
occurs after July 30, 1999, plus (2) the cash proceeds of key man life insurance
policies received by the Company and its Subsidiaries after July 30, 1999; and
(b) the foregoing clauses (A), (B) and (C) of Section 10.12(1) will not
prohibit:
(i) any dividend, distribution or other payments by any Subsidiary
of the Company on its Equity Interests that is paid pro rata to all holders of
such Equity Interests;
(ii) a Qualified Exchange;
(iii) the payment of any dividend on Qualified Capital Stock
within 60 days after the date of its declaration if such dividend could have
been made on the date of such declaration in compliance with the foregoing
provisions; or
(iv) the payment of dividends by the Company in cash or Qualified
Capital Stock pursuant to the terms of any Parent Stock Instrument that is
incurred or issued (as applicable) in compliance with this Indenture.
The full amount of any Restricted Payment made pursuant to para-
graphs 2(a)(i), (ii) and 2(b)(i), (iii) and (iv), but not pursuant to paragraph
2(b)(ii), however, will be counted as Restricted Payments made for purposes of
the calculation of the aggregate amount of Restricted Payments available to be
made referred to in Section 10.12(1)(C).
For purposes of this section, the amount of any Restricted Payment
made or returned, if other than in cash, shall be the fair market value thereof,
as determined in the good faith reasonable judgment of the Company's Supervisory
Board, unless stated otherwise, at the time made or returned, as applicable.
Additionally, on the date of each Restricted Payment, the Company shall
deliver an Officers' Certificate to the respective Trustee describing in
reasonable detail the nature of such Restricted Payment, stating the amount of
such Restricted Payment, stating in reasonable detail the provisions of this
Indenture pursuant to which such Restricted Payment was made and certifying that
such Restricted Payment was made in compliance with the terms of this Indenture.
116
SECTION 10.13 Limitation on Dividend and Other Payment Restrictions
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Affecting Subsidiaries. (1) The Company may not, and may not permit any
- ----------------------
Subsidiary to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any consensual restriction on the ability of any
Subsidiary:
(i) to pay dividends, in cash or otherwise, or make any other
distributions to or on behalf of or pay any obligation to or on behalf of the
Company or any Subsidiary of the Company;
(ii) to make or pay loans or advances to or on behalf of the Company
or any Subsidiary of the Company; or
(iii) to transfer property or assets to or on behalf of the
Company or any Subsidiary of the Company,
except:
(a) restrictions imposed by the Securities or the Senior Notes or the
Indenture or the Senior Notes Indenture or by other Indebtedness of the Company
ranking pari passu with the Securities and the Senior Notes, provided that such
restrictions are no more restrictive than those imposed by the Indenture and the
Securities;
(b) restrictions imposed by applicable law;
(c) restrictions under Indebtedness outstanding on July 30, 1999,
including pursuant to the Credit Agreement;
(d) restrictions under any Acquired Indebtedness not incurred in
violation of the Indenture or any agreement (including any Equity Interest)
relating to any property, asset, or business acquired by the Company or any of
its Subsidiaries, which restrictions in each case existed at the time of
acquisition, were not put in place in connection with or in anticipation of such
acquisition, and are not applicable to any Person, other than the Person
acquired, or to any property, asset or business, other than the property, assets
and business so acquired;
(e) any such restriction or requirement imposed by Indebtedness
incurred under the Credit Agreement pursuant to Section 10.11, provided that
such
117
restriction or requirement is no more restrictive than that imposed by the
Credit Agreement as of July 30, 1999;
(f) with respect solely to a Subsidiary of the Company imposed
pursuant to a binding agreement which has been entered into for the sale or
disposition of all or substantially all of the Equity Interests or assets of
such Subsidiary, provided that such restrictions apply solely to the Equity
Interests or assets of such Subsidiary which are being sold;
(g) restrictions under Purchase Money Indebtedness not incurred in
violation of the Indenture, provided that such restrictions relate only to the
property financed with such Indebtedness;
(h) with respect to any Subsidiary, restrictions contained in the
terms of any Indebtedness incurred in compliance with the Indenture, or any
agreement pursuant to which such Indebtedness was issued, if (A) the
encumbrance or restriction applies only in the event of a payment default or a
default with respect to a financial covenant contained in such Indebtedness or
agreement, (B) the Company shall have reasonably determined that the encumbrance
or restriction is not materially more disadvantageous to the Holders of the
Securities than is customary in comparable financings, and (C) the Company shall
have reasonably determined that any such encumbrance or restriction will not
materially affect the Company's ability to make principal or interest payments
on the Securities; and
(i) in connection with and pursuant to permitted Refinancings,
replacements of restrictions imposed pursuant to clauses (a), (c), (d), or (g),
or this clause (i), of this paragraph that are not more restrictive than those
being replaced and do not apply to any other Person or assets than those that
would have been covered by the restrictions in the Indebtedness so refinanced.
(2) Notwithstanding the provisions of Section 10.13(1), (a) custom-
ary provisions restricting subletting, assignment or transfer of any lease,
license, conveyance, or similar document or instrument entered into in the
ordinary course of business, consistent with industry practice and (b) any asset
or property subject to a Lien which is not prohibited to exist with respect to
such asset pursuant to the terms of this Indenture may be subject to customary
restrictions on the transfer or disposition thereof pursuant to such Lien.
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SECTION 10.14 Limitation on Liens Securing Indebtedness. The
-----------------------------------------
Company may not, and may not permit any Subsidiary to, create, incur, assume or
suffer to exist any Lien of any kind, other than Permitted Liens, upon any of
their respective assets now owned or acquired on or after the date of this
Indenture or upon any income or profits therefrom securing any Indebtedness of
the Company, unless the Company provides, and causes its Subsidiaries to
provide, concurrently therewith, that the Securities are equally and ratably so
secured; provided that if such Indebtedness is Subordinated Indebtedness, the
Lien securing such Subordinated Indebtedness shall be subordinate and junior to
the Lien securing the Securities with the same relative priority as such
Subordinated Indebtedness shall have with respect to the Securities.
SECTION 10.15 Limitation on Issuances of Guarantees by Subsidiaries.
-----------------------------------------------------
(1) Notwithstanding the other provisions of this Indenture, the Company may not
permit any Subsidiary to, directly or indirectly, Guarantee any Indebtedness of
the Company (other than Indebtedness incurred pursuant to the Credit Agreement
in accordance with the terms of this Indenture) ("Guaranteed Indebtedness"),
then such Subsidiary must become a Guarantor (a "Subsidiary Guarantor") of the
Securities on a basis such that the Subsidiary's Guarantee of the Securities
shall stand in substantially the same relative ranking in right of payment to
the guarantee of such other Indebtedness as the Securities stand in relative
ranking to such other Indebtedness; provided that this paragraph shall not be
applicable to any guarantee by any Subsidiary that (a) existed at the time such
Person became a Subsidiary of the Company and (b) was not incurred in connection
with, or in contemplation of, such Person becoming a Subsidiary of the
Company.
(2) Subsidiary Guarantees shall be automatically released upon (i)
the sale or other disposition of all or substantially all of the Company's and
its Subsidiaries' beneficial interest in the Equity Interests or assets of
such Subsidiary Guarantor, provided that thereafter such Subsidiary Guarantor
shall cease to be a Subsidiary of the Company, (ii) the consolidation or merger
of any such Subsidiary Guarantor with any Person other than the Company or a
Subsidiary of the Company if, as a result of such consolidation or merger, such
Subsidiary Guarantor ceases to be a Subsidiary of the Company (and shall not be
a Subsidiary of the successor to the Company), (iii) a Legal Defeasance, or (iv)
the unconditional and complete release of such Subsidiary Guarantor from its
Guarantee of all Guaranteed Indebtedness.
119
SECTION 10.16 Limitation on Sale of Assets and Subsidiary Stock.
-------------------------------------------------
(1) The Company may not, and may not permit any Subsidiary to, in one
or a series of related transactions, convey, sell, transfer, assign or otherwise
dispose of, directly or indirectly, any of the Company's or such Subsidiary's
property, business or assets (including by merger or consolidation in the case
of a Subsidiary of the Company), and including any sale or other transfer or
issuance of any Equity Interests of any Subsidiary of the Company, whether by
the Company or a Subsidiary or through the issuance, sale or transfer of
Equity Interests by a Subsidiary of the Company, and including any sale and
leaseback transaction (any of the foregoing, an "Asset Sale"), unless:
(A) (1) the amount equal to the Net Cash Proceeds therefrom (the
"Asset Sale Offer Amount") is applied
(i) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the optional
redemption of the Securities in accordance with the terms of the Indenture
and other Indebtedness of the Company ranking pari passu in right of
payment with the Securities and with similar provisions requiring the
Company to redeem such Indebtedness with the proceeds from such Asset Sale,
pro rata in proportion to the respective principal amounts (or accreted
values in the case of Securities and other Indebtedness issued with
original issue discount) of the Securities and such other Indebtedness then
Outstanding, or
(ii) within 360 days (or 540 days in the case of a Special
Character Asset Sale) after the date of such Asset Sale to the repurchase
of the Securities and such other Indebtedness ranking pro rata in right of
payment with the Securities and with similar provisions requiring the
Company to make an offer to purchase such Indebtedness with the proceeds
from such Asset Sale pursuant to a cash offer (subject only to conditions
required by applicable law, if any) pro rata in proportion to the
respective principal amounts (or accreted values in the case of Securities
and other Indebtedness issued with original issue discount) of the
Securities and such other Indebtedness then Outstanding (the "Asset Sale
Offer") at a purchase price of 100% of principal amount (or accreted value
in the case of Indebtedness issued with original issue discount) (the
"Asset Sale Offer Price") together with accrued and unpaid interest and
Liquidated Damages, if any, to
120
the date of payment, made within 360 days (or 540 days in the case of a
Special Character Asset Sale) of such Asset Sale, or
(iii) within 360 days (or 540 days in the case of a Special
Character Asset Sale), to the repayment of Indebtedness then Outstanding
pursuant to the Credit Agreement or, if required by the terms of such
Indebtedness, of Indebtedness issued by a Subsidiary of the Company (in
respect of which Indebtedness the Company is not a direct or contingent
obligor except by virtue of the Company's pledge of Equity Interests of,
and other interests of or claim on, such Subsidiary or the Company's
guarantee of such Subsidiary's Indebtedness to the extent, in either case,
the recourse against the Company is limited to such Equity Interests or
claim), or
(2) within 360 days (or 540 days in the case of a Special
Character Asset Sale) following such Asset Sale, the Asset Sale Offer Amount is
invested in assets and property which in the good faith reasonable judgment of
the Company will immediately constitute or be a part of a Related Business of
the Company or such Subsidiary (if it continues to be a Subsidiary) immediately
following such transaction or is used to make Permitted Investments in the
Company or a Subsidiary of the Company (other than Cash Equivalents or
securities of the Company or any Person controlling the Company except as
permitted by the Indenture), provided that (i) 50% of the Net Cash Proceeds from
Special Character Asset Sales and 100% of the net proceeds from any Asset Sale
of an Investment made in reliance on clause (g) of the definition of "Permitted
Investments" may be reinvested in any Permitted Investment (other than, in
either case, Cash Equivalents or securities of the Company or any Person
controlling the Company except as permitted by the Indenture) which in the good
faith reasonable judgment of the Company will immediately constitute or be a
part of a Related Business and (ii) 100% of the net proceeds from an Asset Sale
constituting the sale of an Investment in any Person (excluding a Person that
would be Consolidated with the Company under GAAP and excluding Related Assets
of the Company or any of its Subsidiaries) in which the Company or any of its
Subsidiaries has an Equity Interest may be reinvested in Investments permitted
by clause (e) or (f) of the definition of "Permitted Investments,"
(B) at least 75% of the total consideration for such Asset Sale
or series of related Asset Sales consists of cash, Cash Equivalents, Replacement
Assets or the assumption of Indebtedness of a Subsidiary. For purposes of this
subparagraph (B), total consideration received means the total consideration
received
121
for such Asset Sales, minus the amount of (a) Purchase Money Indebtedness
secured solely by the assets sold and assumed by a transferee, provided that the
Company and the Subsidiaries are released from any obligation in connection
therewith; and (b) property that within 30 days of such Asset Sale is converted
into cash or Cash Equivalents, provided that such cash and Cash Equivalents
shall be treated as Net Cash Proceeds attributable to the original Asset Sale
for which such property was received.
(C) no Default or Event of Default shall have occurred and be
continuing at the time of, or would occur after giving effect to, on a pro forma
basis, such Asset Sale, and
(D) in the case of a transaction or series of related transactions
exceeding $15,000,000 (or the foreign currency equivalent on the date of the
transaction) of consideration to any party thereto, the Supervisory Board of the
Company determines in its good faith reasonable judgment that the Company or
such Subsidiary, as applicable, receives fair market value for such Asset Sale.
(2) An acquisition of Securities pursuant to an Asset Sale Offer may
be deferred until the accumulated Net Cash Proceeds from Asset Sales not applied
to the uses set forth in 1(a)(i), (iii), or 1(b) above (the "Excess Proceeds")
exceeds $50,000,000 (or the foreign currency equivalent thereof), provided that,
in the case of an Asset Sale by a Subsidiary of the Company that is not a Wholly
Owned Subsidiary, only the Company's and its Subsidiaries' pro rata portion of
such Net Cash Proceeds shall constitute Net Cash Proceeds subject to the
provisions of this Section 10.16. Each Asset Sale Offer shall remain open for
20 Business Days following its commencement (the "Asset Sale Offer Period").
Upon expiration of the Asset Sale Offer Period, the Company shall apply the
Asset Sale Offer Amount, plus an amount equal to accrued and unpaid interest and
Liquidated Damages, if any, to the purchase of all Indebtedness properly
tendered (on a pro rata basis if the Asset Sale Offer Amount is insufficient to
purchase all Indebtedness so tendered) at the Asset Sale Offer Price (together
with accrued interest and Liquidated Damages, if any). To the extent that the
aggregate amount of Securities and such other pari passu Indebtedness tendered
pursuant to an Asset Sale Offer is less than the Asset Sale Offer Amount, the
Company may apply any remaining Net Cash Proceeds to any purpose consistent with
this Indenture, and following the consummation of each Asset Sale Offer the
Excess Proceeds amount shall be reset to zero.
122
Notwithstanding, and without complying with, the foregoing provi-
sions of this Section 10.16:
(u) the Company and its Subsidiaries may, in the ordinary course
of business, (a) convey, sell, transfer, assign or otherwise dispose of
inventory and other assets acquired and held for resale in the ordinary
course of business and (b) liquidate and otherwise dispose of Cash
Equivalents;
(v) the Company and its Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of property, businesses, or assets pursuant to
and in accordance with Article Eight.
(w) the Company and its Subsidiaries may sell or dispose of
damaged, worn out or other obsolete personal property in the ordinary
course of business so long as such property is no longer necessary for the
proper conduct of the business of the Company or such Subsidiary, as
applicable, and the Company and its Subsidiaries may replace personal
property in the ordinary course of business so long as the replacement
property is necessary for the proper conduct of the business of the Company
or such Subsidiary, as applicable, and sell or dispose of such replaced
property in the ordinary course;
(x) the Company and its Subsidiaries may convey, sell, transfer,
assign or otherwise dispose of property, businesses, or assets to the
Company or any of its Subsidiaries;
(y) the Company and each of its Subsidiaries may surrender or
waive contract rights or settle, release or surrender contract, tort or
other claims of any kind in the ordinary course of business or grant Liens
not otherwise prohibited by the Indenture;
(z) the Company and its Subsidiaries may exchange assets for
property, businesses, or assets held by any Person (including by merger
or consolidation in the case of a Subsidiary of the Company); provided that
(a) property, businesses and assets, which in one or a series of related
transactions exceeds $15,000,000 in value, received by the Company or such
Subsidiaries in any such exchange in the good faith reasonable judgment of
the Supervisory Board of the Company will immediately consti-
123
tute, be a part of, or be used in, a Related Business of the Company or
such Subsidiaries, (b) the Supervisory Board of the Company has determined
that the terms of any exchange, which in one or a series of related
transactions exceeds $15,000,000 in fair market value, are fair and
reasonable, and (c) any cash or Cash Equivalents received by the Company or
any Subsidiary in such exchange shall be treated as having been received as
a result of an Asset Sale.
All Net Cash Proceeds from an Event of Loss shall be used all within the
period and as otherwise provided above in clause (1) of the first paragraph of
this Section 10.16.
(3) Any Asset Sale Offer shall be made in compliance with all
applicable laws, rules, and regulations, including, if applicable, Regulation
14E of the Exchange Act and the rules and regulations thereunder and all other
applicable Federal and state securities laws. To the extent that the provisions
of any applicable securities laws, rules, or regulations conflict with the
provisions of this section, compliance by the Company or any of its subsidiaries
with such laws, rules or regulations shall not in and of itself cause a breach
of its obligations under this section.
(4) If the payment date in connection with an Asset Sale Offer
hereunder is on or after an interest payment Record Date and on or before the
associated Interest Payment Date, any accrued and unpaid interest (and
Liquidated Damages, if any, due on such Interest Payment Date) will be paid to
the Person in whose name a Security is registered at the close of business on
such Record Date, and such interest (or Liquidated Damages, if applicable) will
not be payable to Holders who tender Securities pursuant to such Asset Sale
Offer.
SECTION 10.17 Limitation on Transactions with Affiliates. The Company
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may not, and may not permit any Subsidiary on or after the Issue Date to, enter
into any contract, agreement, arrangement or transaction with any Affiliate of
the Company (an "Affiliate Transaction"), or any series of related Affiliate
Transac tions, other than Exempted Affiliate Transactions,
(1) unless it is determined by the Supervisory Board as evidenced by a
Board Resolution that the terms of such Affiliate Transaction are fair and
reasonable to the Company and no less favorable to the Company than could have
been obtained in an arm's length transaction with a non-Affiliate, and
124
(2) if involving consideration to either party in excess of
$15,000,000 (or its foreign currency equivalent), unless such Affiliate
Transaction(s) is evidenced by an Officers' Certificate addressed and delivered
to the Trustee certifying that such Affiliate Transaction (or Affiliate
Transactions) has been approved by a majority of the members of the Supervisory
Board of the Company that are disinterested in such transaction, if there are
any directors who are so disinterested, and
(3) if involving consideration to either party in excess of
$15,000,000 or $30,000,000 if there are disinterested directors (or in each case
its foreign currency equivalent), unless in addition the Company, prior to the
consummation thereof, obtains a written favorable opinion as to the fairness of
such transaction to the Company from a financial point of view from an
independent investment banking firm of national reputation in the United States
or, if pertaining to a matter for which such investment banking firms do not
customarily render such opinions, an appraisal or valuation firm of national
reputation in the United States.
SECTION 10.18 Additional Amounts. All payments made by the Company
------------------
under or with respect to the Securities will be made free and clear of and
without withholding or deduction for or on account of any present or future
Taxes imposed or levied by or on behalf of any Taxing Authority within The
Netherlands, or within any other jurisdiction in which the Company is organized
or engaged in business, or any other jurisdiction if payments on the Securities
are made from within such jurisdiction (each of the above, a "Relevant Taxing
Jurisdiction"), unless the Company is required to withhold or deduct Taxes by
law or by the interpretation or administration thereof.
If the Company is required to withhold or deduct any amount for or on
account of Taxes (other than any estate, inheritance, gift, sales, excise,
transfer, wealth or personal property tax, or any similar non-income tax,
assessment or governmental charge) imposed by a Taxing Authority within a
Relevant Taxing Jurisdiction, from any payment made under or with respect to the
Securities, the Company will pay such additional amounts ("Additional Amounts")
as may be necessary so that the net amount received by each Holder of Securities
(including Additional Amounts) after such withholding or deduction (including
any withholding or deduction in respect of such Additional Amounts) will not be
less than the amount the Holder would have received if such Taxes had not been
withheld or deducted; provided that no such Additional Amounts shall be payable
with respect to a
125
payment made to a Holder with respect to any Tax or portion thereof that would
not have been imposed, payable or due:
(1) but for the existence of any present or former connection between
the Holder (or the beneficial owner of, or person ultimately entitled to obtain
an interest in, such Securities) and The Netherlands or other jurisdiction in
which the Company is organized or engaged in business other than the holding of
the Securities;
(2) but for the failure of the Holder to use its reasonable best
efforts to comply upon written notice by the Company delivered 60 days prior to
any payment date with a request by the Company to satisfy any certification,
identification or other reporting requirements which shall include any
applicable forms or instructions whether imposed by statute, treaty, regulation
or administrative practice concerning the nationality or residence of the Holder
or the connection of the Holder with The Netherlands or other jurisdiction in
which the Company is organized or engaged in business:
(i) provided that Holder's failure to comply with the 60 day
requirement described above shall not relieve the Company of the Company's
obligation to pay Additional Amounts if the Holder's application for any
requested certification, identification or other reporting requirement
remains Outstanding or is otherwise pending and the Holder continues to use
its reasonable best efforts to obtain such information;
(ii) provided, further, that the Company shall pay any
Additional Amounts not paid on any payment date as a result of the
operation of this clause (2) upon the satisfaction of the relevant
certification, identification or other reporting requirements within 30
days after such payment date, provided that the Company shall not, as a
result of such satisfaction occurring after the payment date, have already
irrevocably paid to the relevant taxing authority the withheld or deducted
amount in respect of which such Additional Amounts would have been payable;
(3) but for the failure of the Holder (or the beneficial individual
owner of, or individual ultimately entitled to obtain an interest in, such
Securities) who is an individual citizen or resident of a member state of the
European Union to
126
comply with a written notice by the Company delivered 60 days prior to any
payment date with a request by the Company to provide any certification,
identification or other reporting requirement, whether imposed by statute,
treaty, regulation or administrative practice, if such action would otherwise
eliminate the requirement for the withholding or deduction of Taxes; or
(4) if the beneficial owner of, or person ultimately entitled to
obtain an interest in, such Securities had been the Holder of the Securities and
would not be entitled to the payment of Additional Amounts (excluding the impact
of book entry procedures by the Depository or Common Depository).
In addition, Additional Amounts will not be payable with respect to
any Tax which is payable and so paid otherwise than by withholding or deduction
from payments of, or in respect of principal of, or any interest or Liquidated
Damages on, the Securities. The Company will remit the full amount of any
withholdings or deductions for or on account of Taxes to the relevant Taxing
Authority in accordance with applicable law. The Company will make reasonable
efforts to obtain certified copies of tax receipts evidencing the payment of any
Taxes so deducted or withheld from each Taxing Authority imposing such Taxes.
The Company will furnish to the Holders, within 60 days after the date the
payment of any Taxes so deducted or withheld are due pursuant to applicable law,
either certified copies of tax receipts evidencing such payment by the Company
or, if such receipts are not obtainable, other evidence of such payments by the
Company. At least 30 days prior to each date on which any payment under or with
respect to the Securities is due and payable, if the Company will be obligated
to pay Additional Amounts with respect to such payment, the Company will deliver
to the respective Trustee an Officers' Certificate stating (i) the fact that
such Additional Amounts will be payable, (ii) the amounts so payable and (iii)
such other information necessary to enable the Trustee to pay such Additional
Amounts to the Holders of Securities on the Interest Payment Date.
Wherever in this Indenture there is mentioned, in any context, the payment
of amounts based upon the principal amount at maturity of the Securities or of
principal, Accreted Value, premium, if any, interest or Liquidated Damages, if
any, or of any other amount payable under or with respect to any of the
Securities, such mention shall be deemed to include mention of the payment of
Additional Amounts to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof.
127
SECTION 10.19 Waiver of Stay, Extension or Usury Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it shall not at any
time insist upon, plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law or any usury law or other law, which
would prohibit or forgive the Company from paying all or any portion of the
principal of and/or interest, if any, on the Securities as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Indenture; and (to the extent that it may
lawfully do so) the Company hereby expressly waives all benefit or advantage of
any such law, and covenants that it shall not hinder, delay or impede the
execution of any power herein granted to the Trustee, but shall suffer and
permit the execution of every such power as though no such law had been enacted.
SECTION 10.20 Limitation on Lines of Business. Neither the Company
-------------------------------
nor any of its Subsidiaries shall directly or indirectly engage to any
substantial extent in any line or lines of business activity other than that
which, in the reasonable good faith judgment of the Supervisory Board, is a
Related Business.
SECTION 10.21 Limitation on Status as an Investment Company. The
---------------------------------------------
Company and its Subsidiaries shall not take any action or conduct their business
and operations in such a way as would cause them to be required to register as
an "investment company" (as that term is defined in the Investment Company Act
of 1940, as amended), or would otherwise cause them to become subject to
regulation under the Investment Company Act.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
-------------------
(1) Optional Redemption of the Securities
The Securities will be redeemable at the option of the Company, in
whole or in part, at any time or from time to time on or after November 1, 2004,
upon not less than 30 nor more than 60 days' prior notice, at the redemption
prices (expressed as a percentage of Accreted Value thereof) set forth below,
plus accrued
128
and unpaid interest (and Liquidated Damages, if any,) thereon, if any, to the
date of redemption:
Dollar Denominated Euro Denominated
Security Redemp- Security Redemp-
YEAR tion Price tion Price
---- ------------------ ----------------
2004..................... 106.688% 106.688%
2005..................... 104.458% 104.458%
2006..................... 102.229% 102.229%
2007 and thereafter...... 100.000% 100.000%
The Company will publish a redemption notice in accordance with the
procedures described under Section 1.6.
(2) Redemption Upon Equity Offering
Prior to November 1, 2002, upon an Equity Offering of Common Stock for
cash of the Company, up to 35% of the aggregate principal amount of each of the
Dollar Denominated Securities and the Euro Denominated Securities (determined
separately) may be redeemed at the Company's option within 90 days of such
Equity Offering, on not less than 30 days, but not more than 60 days', notice to
each Holder of the Securities to be redeemed, with cash in an amount not in
excess of the Net Cash Proceeds of such Equity Offering, at a redemption price
equal to 113.375% of the Accreted Value in the case of the Dollar Denominated
Securities and 113.375% of the Accreted Valve in the case of the Euro
Denominated Securities, in each case together with accrued and unpaid interest
and Liquidated Damages, if any, thereon to the Redemption Date; provided,
however, that immediately following such redemption not less than 65% of the
aggregate principal amount at maturity of each of the Dollar Denominated
Securities and the Euro Denominated Securities (determined separately) remain
Outstanding and provided, further, that such redemption shall occur within 90
days after the date of the closing of such Equity Offering.
(3) Redemption For Changes In Withholding Taxes
The Company may, at its option, redeem all, but not less than all, of
the Securities then Outstanding, in each case at 100% of the Accreted Value
thereof, plus accrued and unpaid interest and Liquidated Damages, if any, to the
Redemption
129
Date, if a Tax Event has occurred and is continuing. Notice of any such
redemption must be given within not less than 30 days nor more than 60 days
prior to the redemption date. No redemption pursuant to this paragraph (3) may
be made unless, prior to the publication of any notice of redemption as a result
of a Tax Event, the Company delivers to the Trustee (i) an Officer's Certificate
stating that a Tax Event has occurred (irrespective of whether the amendment or
change is then effective), describing the facts leading thereto and stating that
the Company cannot avoid the requirement to pay Additional Amounts by taking
reasonable measures available to it and (ii) an opinion of counsel reasonably
acceptable to the Trustee to the effect that the Company is or will become
obligated to pay Additional Amounts as a result of such change or amendment.
(4) Mandatory Redemption
The Company is not required to make mandatory redemption payments or
sinking fund payments with respect to the Securities.
SECTION 11.2 Applicability of Article. Redemption of Securities 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 Eleven.
SECTION 11.3 Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities pursuant to Section 11.1 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 at maturity of
Securities to be redeemed and shall deliver to the Trustee such documentation
and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 11.4.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 30 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities not previously called for
redemption pro rata, by lot or by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
of the principal amount at maturity of Securities; provided, however, that no
such partial redemption
130
shall reduce the portion of the principal amount at maturity of a Security not
re deemed to less than $1,000 or pound sterling 1,000, as the case may be.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount at maturity thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to redemption of Securities shall relate, in
the case of any Security redeemed or to be redeemed only in part, to the portion
of the principal amount at maturity of such Security which has been or is to be
redeemed.
SECTION 11.5 Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided for in Section 1.6 not less than 30 nor more than
60 days prior to the Redemption Date, to each Holder of Securities to be
redeemed.
Each notice 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 11.7, if any,
(3) if less than all Outstanding Securities are to be redeemed, the
identification (and, in the case of a partial redemption, the principal amount
at maturity) of the particular Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, that on and
after the Redemption Date, upon surrender of such Security, the Holder will
receive, without charge, a new Security or Securities of authorized
denominations for the principal amount at maturity 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 11.7)
will become due and payable upon each such Security, or the portion thereof, to
be redeemed, and that interest thereon will cease to accrue and that the
Accreted Value of the Securities will cease to increase on and after said date,
and
131
(6) the place or places where such Securities are to be presented and
surrendered for payment of the Redemption Price and accrued interest, if any.
Notice of redemption of Securities 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 11.6 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 10.3) an amount of U.S. Dollars (in the case of the Dollar
Denominated Securities) or European Legal Tender (in the case of the Euro
Denominated Securities) sufficient to pay the Redemption Price of, and accrued
interest on, all the Securities which are to be redeemed on that date.
SECTION 11.7 Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified (together with accrued interest and Liquidated Damages, 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) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security 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 Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal or Accreted Value (and premium,
if any) shall, until paid, accrete or bear interest from the Redemption Date at
the rate of accretion of or interest rate borne by the Securities.
SECTION 11.8 Securities Redeemed in Part. Any Security which is to
---------------------------
be redeemed only in part shall be surrendered at the office or agency of the
Company maintained for such purpose pursuant to Section 10.2 (with, if the Com-
pany 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
132
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 Security without service charge, a new Security or Securities, of
any authorized denomination as requested by such Holder, in aggregate principal
amount at maturity equal to and in exchange for the unredeemed portion of the
principal amount at maturity of the Security so surrendered.
ARTICLE XII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 12.1 Company's Option to Effect Defeasance or Covenant
-------------------------------------------------
Defeasance. The Company may, at its option by Board Resolution, at any time
- ----------
prior to the Stated Maturity of the Securities, with respect to the Securities,
elect to have either Section 12.2 or Section 12.3 be applied to all Outstanding
Securities upon compliance with the conditions set forth below in this Article
Twelve.
SECTION 12.2 Defeasance and Discharge. Upon the Company's exercise
------------------------
under Section 12.1 of the option applicable to this Section 12.2, the Company
shall be deemed to have been discharged from its obligations with respect to all
Outstanding Securities on the date the conditions set forth in Section 12.4 are
satisfied (hereinafter, "Defeasance"). For this purpose, Legal Defeasance means
that the Company shall be deemed to have paid and discharged the entire
Indebtedness represented by the Outstanding Securities, which shall thereafter
be deemed to be "Outstanding" only for the purposes of Section 12.5 and the
other Sections of this Indenture referred to in clauses (A) and (B) below, and
to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities 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 Securities to
receive, solely from the trust fund described in Section 12.4 and as more fully
set forth in such Section, payments in respect of the principal or Accreted
Value of, premium, if any, and interest (and Liquidated Damages, if any) on such
Securities when such payments are due and any rights of the Holders with respect
to such amounts, (B) the Company's obligations with respect to such Securities
under Sections 3.4, 3.5, 3.6, 10.2 and 10.3; (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
133
Section 12.2 notwithstanding the prior exercise of its option under Section 12.3
with respect to the Securities.
SECTION 12.3 Covenant Defeasance. Upon the Company's exercise under
-------------------
Section 12.1 of the option applicable to this Section 12.3, the Company shall be
released from its obligations under any covenant contained in Section 8.1 and in
Sections 10.8 through 10.18 with respect to the Outstanding Securities
("Covenant Defeasance") on and after the date the conditions set forth below are
satisfied, and the Securities 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, Covenant Defeasance means that, with respect to the
Outstanding Securities, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
5.1(3), 5.1(4) and 5.1(5), but, except as specified above, the remainder of this
Indenture and such Securities shall be unaffected thereby.
SECTION 12.4 Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of either Section 12.2 or
Section 12.3 to the Outstanding Securities:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another Trustee satisfying the requirements of
Section 6.8 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 Securities: (A) U.S. legal tender (with
respect to the Dollar Denominated Securities), legal tender in the countries
constituting the European Monetary Union (with respect to the Euro Denominated
Securities), or (B) U.S. Government Obligations (with respect to the Dollar
Denominated Securities) or EEA Governmental Obligations (with respect to the
Euro Denominated Securities) or (C) a combination thereof, sufficient, in the
opinion of a firm of independent public accountants that is nationally
recognized in the United States expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying Trustee) to pay and discharge, the principal or
134
Accreted Value of (and premium, if any) and interest on the Outstanding
Securities on the Stated Maturity (or Redemption Date, if applicable) of such
principal or Accreted Value (and premium, if any) or installment of interest;
provided that the Holders of Securities must have a valid, perfected, exclusive
security interest in such trust.
(2) No Default or Event of Default shall have occurred and be
continuing on the date of such deposit or, insofar as paragraphs (6) and (7) of
Section 5.1 are concerned, at any time during the period ending on the 91st day
after the date of 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 or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is bound.
(4) In the case of an election under Section 12.2, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable to the
Trustee stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of
this Indenture, 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 Securities 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 12.3, the Company shall
have delivered to the Trustee an opinion of counsel reasonably acceptable to the
Trustee to the effect that (i) the Holders of the Outstanding Securities 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 Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders of such Outstanding Securities over any other of the
Com-
135
pany's creditors or with the intent of defeating, hindering, delaying or
defrauding any other of the Company's creditors or others; and
(7) The Company shall have delivered to the Trustee an Officers'
Certificate stating that all conditions precedent provided for relating to
either the Defeasance under Section 12.2 or the Covenant Defeasance under
Section 12.3 (as the case may be) have been complied with; and, in the case of
the opinion of counsel, that paragraphs (1) (with respect to the validity and
perfection of the security interest), (2), (3) and (5) of this Section 12.4 have
been complied with, and the Company shall have delivered to the Trustee an
Officers' Certificate, subject to such qualifications and exceptions as the
Trustee deems appropriate, to the effect that, assuming no Holder of the
Securities is an insider of the Company, the trust funds will not be subject to
the effect of any applicable Federal bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally.
SECTION 12.5 Deposited Money and U.S. Government Securities to Be
----------------------------------------------------
Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the
- ---------------------------------------------
last paragraph of Section 10.3, all money and U.S. Government Obligations and
EEA Government Obligations (including the proceeds thereof) deposited with the
Trustee (or other qualifying Trustee, collectively for purposes of this Section
12.5, the "Trustee") pursuant to Section 12.4 in respect of the Outstanding
Securities shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities 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 Securities of
all sums due and to become due thereon in respect of principal or Accreted
Value, 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 and (if applicable)
its officers, directors, employees and agents against any tax, fee or other
charge imposed on or assessed against the U.S. Government Securities deposited
pursuant to Section 12.4 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 Securities.
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 or U.S. Government Obligations or EEA Government Obliga-
136
tions held by it as provided in Section 12.4 which, in the opinion of a firm of
independent public accountants that is nationally recognized in the United
States 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 Twelve.
SECTION 12.6 Reinstatement. If the Trustee or any Paying Agent is
-------------
unable to apply any money in accordance with Section 12.5 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 Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 12.2 or 12.3, 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 12.5; provided, however, that if the Company makes any
payment of principal or Accreted Value of, premium, if any, or interest on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
137
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed all as of the day and year first above written.
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By: /s/ Anton H.E. van Voskuijlen
----------------------------------
Name: Anton H.E. van Voskuijlen
Title: Managing Director
Citibank, N.A. (London Branch), Trustee
By: /s/ Karen Williamson
----------------------------------
Name: Karen Williamson
Title: Vice President
138
EXHIBIT A
[FORM OF DOLLAR DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY (AND
ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, A NOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR
A-1
UNLESS THE TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES. ACT. BY ITS ACCEPTANCE HEREOF, THE HOLDER: (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT ("RULE 144A")) (A "QIB"), OR IS OTHERWISE ACQUIRING
THIS SECURITY PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE
DATE WHICH IS TWO YEARS (OR SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE
144(K) UNDER THE SECURITIES ACT OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE
LATER OF THE ORIGINAL ISSUE DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR
THE LAST DAY ON WHICH THE COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER
OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE,
IF ANY, AS MAY BE REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION
TERMINATION DATE") OFFER, SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO
THE COMPANY OR ANY OF ITS SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT
WHICH AS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS
THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN
ACCOUNT OR FOR THE ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS
THAT ARE NOT U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE
SECURITIES ACT ("REGULATION S") OR (E) PURSUANT TO AN OTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON
TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES
(C), (D) AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN
OPINION OF
A-2
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE
RESTRICTION TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION",
"UNITED STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
[If a Regulation S Security, then insert:] THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE
PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE SECURITIES)
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S OR (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT WILL
GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURITIES).
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") UNDER SECTION
1272 ET SEQ. OF THE U.S. INTERNAL REVENUE
A-3
CODE OF 1986, AS AMENDED. THE ISSUE DATE OF THIS SECURITY IS OCTOBER 29, 1999.
THE ISSUE PRICE OF THIS SECURITY IS $523.06 PER $1,000 STATED PRINCIPAL AMOUNT
DUE AT MATURITY. THE YIELD TO MATURITY OF THIS SECURITY IS 13 3/8% PER ANNUM
COMPUTED ON A SEMI-ANNUAL BOND EQUIVALENT BASIS AND CALCULATED FROM OCTOBER 29,
1999. THE AMOUNT OF OID ON THIS SECURITY IS $476.94 PER $1,000 STATED PRINCIPAL
AMOUNT DUE AT MATURITY.
A-4
United Pan-Europe Communications N.V.
$478,000,000
13 3/8% Senior Discount Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] $ [ ]
United Pan-Europe Communications N.V., a public company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Cede & Co., as nominee of The
Depository Trust Company or registered assigns, the principal sum of [ ]
DOLLARS, which amount includes amortization of original issue discount, on
November 1, 2009.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officer.
Dated: October 29, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:__________________________
Authorized Signatory
A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: October 29, 1999
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK, N.A.
Not in its individual capacity, but solely as Trustee
By:______________________________
Authorized Signatory
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[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
$478,000,000
13 3/8% SENIOR DISCOUNT NOTE DUE 2009
1. Method of Payment. The initial Accreted Value will increase at the
-----------------
rate of 13 3/8% per annum, compounded semi-annually, on the Securities. Payment
of the principal of, or premium, if any, on the Securities or such lesser amount
payable upon the acceleration of the maturity of the Securities will include
accrued amortization of original issue discount. Interest payable in cash will
commence to accrue on November 1, 2004, and will be payable semi-annually in
arrears on each May 1 and November 1, commencing on May 1, 2005. Interest will
be paid upon overdue principal and premium, and interest, if any, compounded
semi-annually from the due date at the rate borne by the Securities to the
extent such payment is lawful.
The Holder must surrender this Security to a Paying Agent to collect
payments. The principal of, Accreted Value, interest and premium, if any, on
this Security will be payable at the office or agency of the Company maintained
for such purpose within the City and State of New York or, at the option of the
Company, payment may be made by check mailed to the Holders of the Securities at
their respective addresses set forth in the register of Holders of Securities.
Until otherwise designated by the Company, the Company's office or agency in New
York will be the office of the Trustee maintained for such purpose. All
payments shall be in 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.
2. Paying Agent and Registrar. Initially, Citibank, N.A. (London
--------------------------
Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as Paying
Agent and Registrar and Banque Internationale a Luxembourg will act as Paying
Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
3. Indenture. The Company issued $478,000,000 13 3/8% Senior Discount
---------
Notes due 2009 and pound sterling 191,000,000 13 3/8% Senior Discount Notes due
2009 under an Indenture dated as of October 29, 1999 (the "Indenture") between
the
A-8
Company and the Trustee. This is one of an issue of Securities of the Company
issued, or to be issued, under the Indenture. The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code (S)(S) 77aaa-77bbbb),
as amended from time to time. The Securities are subject to all such terms, and
Holders are referred to the Indenture and such Act for a statement of them.
Capitalized and certain other terms used herein and not otherwise defined have
the meanings set forth in the Indenture. To the extent of any conflict between
the terms of the Securities and the Indenture, the applicable terms of the
Indenture shall govern.
4. Additional Amounts. The Company will pay to the Holders of
------------------
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
5. Optional Redemption of the Securities. The Securities will be
-------------------------------------
redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after November 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of Accreted Value thereof) if redeemed during
the 12- month period beginning on November 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
REDEMPTION
YEAR PRICE
---- -------------
2004................... 106.688%
2005................... 104.458%
2006................... 102.229%
2007 and thereafter.... 100.000%
6. Redemption Upon Equity Offering. Prior to November 1, 2002, upon
-------------------------------
an Equity Offering of Common Stock for cash of the Company, up to 35% of the
aggregate principal amount at maturity of the Securities may be redeemed at the
Company's option within 90 days of such Equity Offering, on not less than 30
days', but not more than 60 days', notice to each Holder of the Securities to be
redeemed, with cash in an amount not in excess of the Net Cash Proceeds of such
Equity Offering, at a redemption price equal to 113.375% of the Accreted Value
thereof, together with accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that immediately
following such redemption
A-9
not less than 65% of the aggregate principal amount at maturity of the
Securities remain Outstanding and provided, further, that such redemption shall
occur within 90 days after the date of the closing of such Equity Offering.
7. Redemption for Changes in Withholding Taxes. The Company may, at
-------------------------------------------
its option, redeem all, but not less than all, of the Securities then
Outstanding, at 100% of the Accreted Value of the Securities redeemed, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date, if a Tax Event has occurred and is continuing.
8. Mandatory Redemption. The Company is not required to make
--------------------
mandatory redemption payments or sinking fund payments with respect to the
Securities.
9. Notice of Redemption. Notice of redemption will be mailed within
--------------------
not less than 30 days nor more than 60 days prior to the Redemption Date to each
Holder of Securities to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue, and, if applicable, the Accreted Value will cease to
increase, on Securities or portions thereof called for redemption.
10. Purchase of Securities upon Change of Control. The Indenture
---------------------------------------------
provides that upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company shall make an offer to purchase
Outstanding Securities in accordance with the procedures set forth in the
Indenture.
11. Registration Rights. Pursuant to a Registration Rights Agreement,
-------------------
dated October 29, 1999, among the Company and the Initial Purchasers named
therein, the Company will be obligated to consummate an Exchange Offer pursuant
to which the Holder of this Security shall have the right to exchange this
Security for notes of a separate series issued under the Indenture which have
been registered under the Securities Act, in like principal amount at maturity
and having substantially identical terms as the Securities. The Holders shall be
entitled to receive certain payments in the event such Exchange Offer is not
consummated ("Liquidated Damages") and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
12. Denominations, Transfer, Exchange. The Securities are in
---------------------------------
registered form, without coupons, in denominations of $1,000 and integral
multiples
A-10
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay to it any taxes and
fees required by law or permitted by the Indenture. Under certain circumstances
set forth in the Indenture, the Registrar need not register the transfer of or
exchange any Securities.
13. Persons Deemed Owners. The registered Holder of this Security may
---------------------
be treated as the owner of this Security for all purposes.
14. Unclaimed Money. If money for the payment of principal or
---------------
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, all
liability of the Trustee and any such Paying Agent with respect to such money
shall cease.
15. Amendment, Supplement, Waiver, Etc. The Company and the Trustee
-----------------------------------
may, without the consent of the Holders of any Outstanding Securities, amend,
waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount at
maturity of the Outstanding Securities and with other holders of notes of other
series issued under the Indenture, subject to certain exceptions requiring the
consent of the Holders of the particular Securities to be affected.
16. Restrictive Covenants. The Indenture imposes certain limitations
---------------------
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make Restricted Payments, make certain Investments,
create or incur Liens, enter into transactions with Affiliates, enter into
agreements restricting the ability of Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other person or transfer all or substantially all of the Company's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to the Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
17. Defaults and Remedies. Events of Default are set forth in the
---------------------
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the
A-11
Company) occurs and is continuing, the Trustee or the Holders of not less than
25% in aggregate principal amount at maturity of the Outstanding Securities
under the Indenture may, by written notice to the Trustee and the Company, and
the Trustee upon the request of the Holders of not less than 25% in aggregate
principal amount at maturity of the Outstanding Securities shall, declare all
principal of and accrued interest on all Securities to be immediately due and
payable and such amounts shall become immediately due and payable.
18. Trustee Dealings with Company. The Trustee, in its individual or
-----------------------------
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
19. No Recourse Against Others. No board member, director, officer,
--------------------------
employee, agent, authorized representative, incorporator or shareholder of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture for a claim based on, in respect of, or by reason
of, such obligations or their creation by reason of his, her or its status as
such. Each Holder of Securities by accepting a Security waivers and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
20. Discharge. The Company's obligations pursuant to the Indenture
---------
will be discharged, except for obligations pursuant to certain provisions
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of U.S. Dollars or
U.S. Government Securities denominated in U.S. Dollars sufficient to pay when
due principal of and interest on the Securities to maturity or redemption.
21. Authentication. This Security shall not be valid until the
--------------
Trustee signs the certificate of authentication on the other side of this
Security.
22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT
LIMITATION SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT
A-12
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND THE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THEY MAY EFFECTIVELY DO SO UNDER
APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION WHICH THEY MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN
ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN
ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL
AFFECT THE RIGHT OF THE TRUSTEE OR ANY HOLDER TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED
AGAINST THE COMPANY IN ANY OTHER JURISDICTION. The Trustee, the Company and the
Holders agree to submit to the jurisdiction of the courts of the State of New
York in any action or proceeding arising out of or relating to the Indenture or
the Securities.
23. Abbreviations. Customary abbreviations may be used in the name of
-------------
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
24. Currency of Account. U.S. Dollars are the sole currency of
-------------------
account and payment for all sums payable by the Company under the Securities.
25. CUSIP, ISIN and Common Code Numbers. The Company has caused
-----------------------------------
CUSIP, ISIN or Common Code numbers, as applicable, to be printed on the
Securities and the Trustee may use CUSIP, ISIN or Common Code numbers, as
applicable, in notices of redemption as a convenience to Holders. No
representation is made as to the accuracy of such numbers either as printed on
the Securities or as contained in any notice of redemption and reliance may be
placed only on the other identification numbers placed hereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
United Pan-Europe
Communications N.V.
P.O. Box 74763
A-13
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
A-14
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint ________________________________________________________
of______________________________________________________________________________
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
A-15
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents, including a transferee certificate substantially in
the form attached hereto, are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b) above,
if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: ______________ Your signature:__________________________________________
(Sign exactly as your name appears on the other
side of this Security)
By:______________________________________________________
NOTICE: To be executed by an executive officer
Signature Guaranteed:___________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable to the
Trustee)
A-16
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:___________________ _________________________________________________
NOTICE: To be executed by an executive officer
A-17
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Amount of Amount of
decrease in increase in Principal Amount
Principal Principal at maturity
Amount Amount of this
at maturity at maturity Global Security Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ---------------- ------------- -------------- ---------------- ---------------
Initial balance $
as of
29/10/99
A-18
EXHIBIT B
[FORM OF EURO DENOMINATED SECURITIES]
[If a Global Security, then insert:] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY ("DTC"), EUROCLEAR OR
CEDELBANK (EACH, A "DEPOSITARY") OR A NOMINEE OF A DEPOSITARY OR A SUCCESSOR
DEPOSITARY. THIS SECURITY IS NOT EXCHANGEABLE FOR SECURITIES REGISTERED IN THE
NAME OF A PERSON OTHER THAN A DEPOSITARY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY AS A WHOLE BY A DEPOSITARY TO A NOMINEE
OF A DEPOSITARY OR BY A NOMINEE OF A DEPOSITARY TO A DEPOSITARY OR ANOTHER
NOMINEE OF A DEPOSITARY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
[If a Global Security, then insert:] UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY, TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF SUCH DEPOSITARY OR A NOMINEE OR IN SUCH
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF A DEPOSITARY (AND
ANY PAYMENT IS MADE TO ITS NOMINEE OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF A DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE
REGISTERED OWNER HEREOF, A NOMINEE OF A DEPOSITARY, HAS AN INTEREST HEREIN.
[If a Restricted Global Security, then insert:] THIS SECURITY (OR ITS
PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE OR OTHER SECURITIES LAWS. NEITHER
THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS THE TRANSACTION IS
B-1
EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES.
ACT. BY ITS ACCEPTANCE HEREOF, THE HOLDER: (1) REPRESENTS THAT IT IS A
"QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES
ACT ("RULE 144A")) (A "QIB"), OR IS OTHERWISE ACQUIRING THIS SECURITY PURSUANT
TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT PRIOR TO (X) THE DATE WHICH IS TWO YEARS (OR
SUCH SHORTER PERIOD OF TIME AS PERMITTED BY RULE 144(K) UNDER THE SECURITIES ACT
OR ANY SUCCESSOR PROVISION THEREUNDER) AFTER THE LATER OF THE ORIGINAL ISSUE
DATE HEREOF (OR ANY PREDECESSOR OF THIS SECURITY) OR THE LAST DAY ON WHICH THE
COMPANY OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) AND (Y) SUCH LATER DATE, IF ANY, AS MAY BE
REQUIRED BY APPLICABLE LAWS (THE "RESALE RESTRICTION TERMINATION DATE") OFFER,
SELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT (A) TO THE COMPANY OR ANY OF ITS
SUBSIDIARIES, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH AS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS
A QIB AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QIB TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO PERSONS THAT ARE NOT
U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
ACCORDANCE WITH THE REQUIREMENTS OF REGULATION S UNDER THE SECURITIES ACT
("REGULATION S") OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
APPLICABLE JURISDICTION AND (3) AGREES THAT IT WILL GIVE TO EACH PERSON TO WHOM
THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. OFFERS, SALES OR OTHER TRANSFERS OF THIS SECURITY UNDER CLAUSES (C), (D)
AND (E) ABOVE ARE SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY
SUCH OFFERS, SALES OR OTHER TRANSFERS TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM.
THIS LEGEND
B-2
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE. AS USED HEREIN, THE TERMS "OFFSHORE TRANSACTION", "UNITED
STATES" AND "U.S. PERSON" HAVE THE RESPECTIVE MEANINGS GIVEN TO THEM BY
REGULATION S.
[If a Regulation S Security, then insert:] THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND, PRIOR TO THE EXPIRATION OF THE DISTRIBUTION COMPLIANCE
PERIOD (DEFINED AS 40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE SECURITIES)
NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF
REGULATION S OR (2) TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES. BY ITS ACCEPTANCE HEREOF, THE HOLDER AGREES THAT IT WILL GIVE
TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO
THE EFFECT OF THIS LEGEND.
THIS SECURITY MAY NOT BE OFFERED, TRANSFERRED OR SOLD AS PART OF ITS
INITIAL DISTRIBUTION, OTHER THAN TO INDIVIDUALS OR LEGAL ENTITIES, SITUATED IN
OR OUTSIDE THE NETHERLANDS, WHO OR WHICH TRADE OR INVEST IN SECURITIES IN THE
CONDUCT OF THEIR PROFESSION OR BUSINESS (WHICH INCLUDES BANKS, BROKERS, DEALERS,
INSURANCE COMPANIES, PENSION FUNDS, OTHER INSTITUTIONAL INVESTORS AND OTHER
PARTIES (INCLUDING TREASURY DEPARTMENTS OF COMMERCIAL ENTERPRISE AND FINANCE
COMPANIES OR GROUPS), WHICH REGULARLY TRADE OR INVEST IN SECURITIES).
THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT ("OID") UNDER
SECTION 1272 ET SEQ. OF THE U.S. INTERNAL REVENUE CODE OF 1986, AS AMENDED. THE
ISSUE DATE OF THIS SECURITY IS OCTOBER 29, 1999. THE ISSUE PRICE OF THIS
SECURITY IS pound sterling 523.06 PER pound sterling 1,000 STATED PRINCIPAL
AMOUNT DUE AT MATURITY. THE YIELD TO MATURITY OF THIS SECURITY IS 13 3/8% PER
ANNUM COMPUTED ON A
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SEMI-ANNUAL BOND EQUIVALENT BASIS AND CALCULATED FROM OCTOBER 29, 1999. THE
AMOUNT OF OID ON THIS SECURITY IS POUND STERLING 476.94 PER POUND STERLING 1,000
STATED PRINCIPAL AMOUNT DUE AT MATURITY.
B-4
United Pan-Europe Communications N.V.
POUND STERLING 191,000,000
13 3/8% Senior Discount Notes Due 2009
[CUSIP] [ISIN] [Common Code]: [ ]
No. [ ] Pound Sterling [ ]
United Pan-Europe Communications N.V., a public company with limited
liability organized and existing under the laws of The Netherlands (the
"Company", which term includes any successor corporation), for value received,
hereby promises to pay to the registered holder, Citivic Nominees Limited, as
Common Depositary for Morgan Guaranty Trust Company of New York, as operator of
Euroclear, and for Cedelbank or registered assigns, the principal sum of [ ]
EUROS, which amount includes amortization of original issue discount, on
November 1, 2009.
Interest Payment Dates: May 1 and November 1.
Record Dates: April 15 and October 15.
Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
B-5
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed manually or by facsimile by its duly authorized officer.
Dated: October 29, 1999
UNITED PAN-EUROPE COMMUNICATIONS N.V.
By:
---------------------------
Authorized Signatory
B-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated: October 29, 1999
This is one of the Securities referred to in the within-mentioned
Indenture.
CITIBANK, N.A.
Not in its individual capacity, but solely as Trustee
By:
---------------------------
Authorized Signatory
B-7
[REVERSE OF NOTE]
UNITED PAN-EUROPE COMMUNICATIONS N.V.
Pound Sterling 191,000,000
13 3/8 % SENIOR DISCOUNT NOTE DUE 2009
1. Method of Payment. The initial Accreted Value will increase at the
-----------------
rate of 13 3/8% per annum, compounded semi-annually, on the Securities. Payment
of the principal of, or premium, if any, on the Securities or such lesser amount
payable upon the acceleration of the maturity of the Securities will include
accrued amortization of original issue discount. Interest payable in cash will
commence to accrue on November 1, 2004, and will be payable semi-annually in
arrears on each May 1 and November 1, commencing on May 1, 2005. Interest will
be paid upon overdue principal and premium, and interest, if any, compounded
semi-annually from the due date at the rate borne by the Securities to the
extent such payment is lawful.
The Holder must surrender this Security to a Paying Agent to collect
payments. The principal of, Accreted Value, interest and premium, if any, on
the Securities will be payable in Euros. Interest may be paid by check mailed
to the Holders of the Securities at their respective addresses set forth in the
register of Holders of Securities.
2. Paying Agent and Registrar. Initially, Citibank, N.A. (London
--------------------------
Branch) (the "Trustee") and Citibank, N.A. (New York Branch) will act as Paying
Agent and Registrar and Banque Internationale a Luxembourg will act as Paying
Agent in Luxembourg. The Company may change any Paying Agent or Registrar
without notice. The Company or any of its Subsidiaries may, subject to certain
exceptions, act as Registrar.
3. Indenture. The Company issued $478,000,000 13 3/8% Senior Discount
---------
Notes due 2009 and pound sterling 191,000,000 13 3/8% Senior Discount Notes due
2009 under an Indenture dated as of October 29, 1999 (the "Indenture") between
the Company and the Trustee. This is one of an issue of Securities of the
Company issued, or to be issued, under the Indenture. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb), as amended from time to time. The Securities are subject to all
such terms, and Holders are referred to the Indenture and such Act for a
statement of them. Capitalized and certain other terms used herein and not
otherwise defined have
B-8
the meanings set forth in the Indenture. To the extent of any conflict between
the terms of the Securities and the Indenture, the applicable terms of the
Indenture shall govern.
4. Additional Amounts. The Company will pay to the Holders of
------------------
Securities such Additional Amounts as may become payable under Section 10.18 of
the Indenture.
5. Optional Redemption of the Securities. The Securities will be
-------------------------------------
redeemable at the option of the Company, in whole or in part, at any time or
from time to time on or after November 1, 2004, upon not less than 30 nor more
than 60 days' prior notice to each Holder of Securities, at the Redemption
Prices (expressed as a percentage of Accreted Value thereof) if redeemed during
the 12-month period beginning on November 1 of the years indicated below, plus
accrued and unpaid interest and Liquidated Damages, if any, thereon to the
Redemption Date:
REDEMPTION
YEAR PRICE
---- -------------
2004................... 106.688%
2005................... 104.458%
2006................... 102.229%
2007 and thereafter.... 100.000%
6. Redemption Upon Equity Offering. Prior to November 1, 2002, upon an
-------------------------------
Equity Offering of Common Stock for cash of the Company, up to 35% of the
aggregate principal amount at maturity of the Securities may be redeemed at the
Company's option within 90 days of such Equity Offering, on not less than 30
days', but not more than 60 days', notice to each Holder of the Securities to be
redeemed, with cash in an amount not in excess of the Net Cash Proceeds of such
Equity Offering, at a redemption price equal to 113.375% of the Accreted Value
thereof, together with accrued and unpaid interest and Liquidated Damages, if
any, thereon to the Redemption Date; provided, however, that immediately
following such redemption not less than 65% of the aggregate principal amount at
maturity of the Securities remain Outstanding and provided, further, that such
redemption shall occur within 90 days after the date of the closing of such
Equity Offering.
7. Redemption for Changes in Withholding Taxes. The Company may, at
-------------------------------------------
its option, redeem all, but not less than all, of the Securities then
Outstanding, at 100% of the Accreted Value of the Securities redeemed, plus
accrued and unpaid
B-9
interest and Liquidated Damages, if any, thereon to the Redemption Date, if a
Tax Event has occurred and is continuing.
8. Mandatory Redemption. The Company is not required to make
--------------------
mandatory redemption payments or sinking fund payments with respect to the
Securities.
9. Notice of Redemption. Notice of redemption will be mailed within
--------------------
not less than 30 days nor more than 60 days prior to the Redemption Date to each
Holder of Securities to be redeemed at his registered address. On and after the
Redemption Date, unless the Company defaults in making the redemption payment,
interest ceases to accrue, and, if applicable, the Accreted Value will cease to
increase, on Securities or portions thereof called for redemption.
10. Purchase of Securities upon Change of Control. The Indenture
---------------------------------------------
provides that upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company shall make an offer to purchase
Outstanding Securities in accordance with the procedures set forth in the
Indenture.
11. Registration Rights. Pursuant to a Registration Rights Agreement,
-------------------
dated October 29, 1999, among the Company and the Initial Purchasers named
therein, the Company will be obligated to consummate an Exchange Offer pursuant
to which the Holder of this Security shall have the right to exchange this
Security for notes of a separate series issued under the Indenture which have
been registered under the Securities Act, in like principal amount at maturity
and having substantially identical terms as the Securities. The Holders shall
be entitled to receive certain payments in the event such Exchange Offer is not
consummated ("Liquidated Damages") and upon certain other conditions, all
pursuant to and in accordance with the terms of the Registration Rights
Agreement.
12. Denominations, Transfer, Exchange. The Securities are in
---------------------------------
registered form, without coupons, in denominations of pound sterling 1,000 and
integral multiples of pound sterling 1,000. A Holder may transfer or exchange
Securities in accordance with the Indenture. The Registrar may require a Holder,
among other things, to furnish appropriate endorsements and transfer documents
and to pay to it any taxes and fees required by law or permitted by the
Indenture. Under certain circumstances set forth in the Indenture, the Registrar
need not register the transfer of or exchange any Securities.
B-10
13. Persons Deemed Owners. The registered Holder of this Security may
---------------------
be treated as the owner of this Security for all purposes.
14. Unclaimed Money. If money for the payment of principal or
---------------
interest remains unclaimed for two years, the Trustee and the Paying Agent will
pay the money back to the Company at its written request. After that, all
liability of the Trustee and any such Paying Agent with respect to such money
shall cease.
15. Amendment, Supplement, Waiver, Etc. The Company and the Trustee
-----------------------------------
may, without the consent of the Holders of any Outstanding Securities, amend,
waive or supplement the Indenture or the Securities for certain specified
purposes, including, among other things, curing ambiguities, defects or
inconsistencies. Other amendments and modifications of the Indenture or the
Securities may be made by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount at
maturity of the Outstanding Securities and with other holders of notes of other
series issued under the Indenture, subject to certain exceptions requiring the
consent of the Holders of the particular Securities to be affected.
16. Restrictive Covenants. The Indenture imposes certain limitations
---------------------
on the ability of the Company and its Subsidiaries to, among other things, incur
additional Indebtedness, make Restricted Payments, make certain Investments,
create or incur Liens, enter into transactions with Affiliates, enter into
agreements restricting the ability of Subsidiaries to pay dividends and make
distributions and on the ability of the Company to merge or consolidate with any
other person or transfer all or substantially all of the Company's assets. Such
limitations are subject to a number of important qualifications and exceptions.
Pursuant to the Indenture, the Company must annually report to the Trustee on
compliance with such limitations.
17. Defaults and Remedies. Events of Default are set forth in the
---------------------
Indenture. Subject to certain limitations in the Indenture, if an Event of
Default (other than certain events of bankruptcy, insolvency or reorganization
affecting the Company) occurs and is continuing, the Trustee or the Holders of
not less than 25% in aggregate principal amount at maturity of the Outstanding
Securities under the Indenture may, by written notice to the Trustee and the
Company, and the Trustee upon the request of the Holders of not less than 25% in
aggregate principal amount at maturity of the Outstanding Securities shall,
declare all principal of and accrued interest on all Securities to be
immediately due and payable and such amounts shall become immediately due and
payable.
B-11
18. Trustee Dealings with Company. The Trustee, in its individual or
-----------------------------
any other capacity, may make loans to, accept deposits from, and perform
services for the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates, as if it were not Trustee.
19. No Recourse Against Others. No board member, director, officer,
--------------------------
employee, agent, authorized representative, incorporator or shareholder of the
Company shall have any liability for any obligations of the Company under the
Securities or the Indenture for a claim based on, in respect of, or by reason
of, such obligations or their creation by reason of his, her or its status as
such. Each Holder of Securities by accepting a Security waivers and releases
all such liability. The waiver and release are part of the consideration for
the issuance of the Securities.
20. Discharge. The Company's obligations pursuant to the Indenture
---------
will be discharged, except for obligations pursuant to certain provisions
thereof, subject to the terms of the Indenture, upon the payment of all the
Securities or upon the irrevocable deposit with the Trustee of legal tender in
the countries constituting the European Monetary Union or EEA Government
Securities denominated in legal tender in the countries constituting the
European Monetary Union sufficient to pay when due principal of and interest on
the Securities to maturity or redemption.
21. Authentication. This Security shall not be valid until the
--------------
Trustee signs the certificate of authentication on the other side of this
Security.
22. Governing Law. THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK INCLUDING WITHOUT
LIMITATION SECTION 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATION LAW AND
NEW YORK CIVIL PRACTICE LAWS AND RULES 327(B), AS APPLIED TO CONTRACTS MADE AND
PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE AND
THE SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS
PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS.
THE COMPANY IRREVOCABLY WAIVES, TO THE FULLEST
B-12
EXTENT THEY MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION WHICH THEY MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BOUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE TRUSTEE OR ANY
HOLDER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE
LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST THE COMPANY IN ANY OTHER
JURISDICTION. The Trustee, the Company and the Holders agree to submit to the
jurisdiction of the courts of the State of New York in any action or proceeding
arising out of or relating to the Indenture or the Securities.
23. Abbreviations. Customary abbreviations may be used in the name of
-------------
a Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
24. Currency of Account. Subject to the Indenture, Euros are the sole
-------------------
currency of account and payment for all sums payable by the Company under the
Securities.
25. ISIN and Common Code Numbers. The Company has caused ISIN or
----------------------------
Common Code numbers, as applicable, to be printed on the Securities and the
Trustee may use ISIN or Common Code numbers, as applicable, in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Securities or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed hereon.
The Company will furnish to any Holder upon written request and
without charge a copy of the Indenture. Requests may be made to:
B-13
United Pan-Europe
Communications N.V.
P.O. Box 74763
1070 BT Amsterdam
The Netherlands
Attn: Treasurer
B-14
FORM OF ASSIGNMENT
If you, the holder, want to assign this Security, fill in the form below and
have your signature guaranteed:
I or we assign and transfer this Security to:
(Insert assignee's social security or tax ID number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
---------------------------------------------------------
of
------------------------------------------------------------------------------
Agent to transfer this Security on the books of the Company. The Agent may
substitute another to act for such agent.
In connection with any transfer of this Security occurring prior to the
date which is the earlier of (i) the date of the declaration by the United
States Securities and Exchange Commission of the effectiveness of a registration
statement under the Securities Act of 1933, as amended (the "Securities Act"),
covering resales of this Security (which effectiveness shall not have been
suspended or terminated at the date of the transfer) and (ii) the date two years
(or such shorter period of time as may be permitted by Rule 144(k) under the
Securities Act or any successor provision thereunder) after the later of the
original issuance date appearing on the face of this Security (or any
Predecessor Security) or the last date on which the Company or any Affiliate of
the Company was the owner of this Security (or any Predecessor Security), the
undersigned confirms that it has not utilized any general solicitation or
general advertising in connection with the transfer and that:
[Check One]
[ ] (a) this Security is being transferred in compliance with the exemption
from registration under the Securities Act provided by Rule 144A
thereunder.
or
B-15
[ ] (b) this Security is being transferred other than in accordance with (a)
above and documents, including a transferee certificate substantially in
the form attached hereto, are being furnished which comply with the
conditions of transfer set forth in this Security and the Indenture.
If neither of the foregoing boxes is checked and, in the case of (b) above,
if the appropriate document is not attached or otherwise furnished to the
Trustee, the Trustee or Registrar shall not be obligated to register this
Security in the name of any person other than the Holder hereof unless and until
the conditions to any such transfer or registration set forth herein and in
Section 3.13 and Section 3.14 of the Indenture shall have been satisfied.
Dated: _________ Your signature:__________________________________________
(Sign exactly as your name appears on the other
side of this Security)
By:_________________________________________________________
NOTICE: To be executed by an executive officer
Signature Guaranteed:___________________________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable to the
Trustee)
B-16
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this
Security for its own account or an account with respect to which it exercises
sole investment discretion and that it and any such account is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act
and is aware that the sale to it is being made in reliance on Rule144A and
acknowledges that it has received such information regarding the Company as the
undersigned has requested pursuant to Rule 144A (including the information
specified in Rule 144A(d)(4)) or has determined not to request such information
and that it is aware that the transferor is relying upon the undersigned's
foregoing representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:_____________________ _________________________________________________
NOTICE: To be executed by an executive officer
B-17
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
Amount of Amount of
decrease in increase in Principal Amount
Principal Principal at maturity
Amount Amount of this
at maturity at maturity Global Security Signature of
of this of this following authorized
Date of Global Global such decrease officer of
Exchange Security Security (or increase) Trustee
- ----------------- ---------------- -------------- ---------------- -------------------
Initial balance euro
as of 29/10/99
B-18
EXHIBIT C
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO
REGULATION S GLOBAL SECURITY
(Transfers pursuant to Sections 3.13(b)(ii) and 3.13(c)(ii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 13 3/8% Senior Discount Notes
due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of October 29, 1999
between the Company and Citibank, N.A., as trustee, (the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$][pound sterling]______ principal amount
at maturity of Securities, which are evidenced by the following certificate(s)
(the "Specified Securities"):
[CUSIP][CINS][ISIN] No(s). ________________________________
CERTIFICATE No(s). _________________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security, they
are held through the appropriate Depositary or an Agent Member in the name of
the Undersigned, as or on behalf of the Owner.
C-1
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
1. the Owner is not a distributor of the Specified Securities, an
Affiliate of the Company or any such distributor or a person acting on behalf of
any of the foregoing;
2. the offer of the Specified Securities was not made to a person in the
United States;
3 either:
(a) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its behalf
reasonably believed that the Transferee was outside the United States; or
(b) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities market and
neither the Owner nor any person acting on its behalf knows that the
transactions have been prearranged with a buyer in the United States;
4. no directed selling efforts have been made in the United States by or
on behalf of the Owner or any Affiliate thereof;
5. if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified Securities,
and the transfer is to occur during the Restricted Period, then the requirements
of Rule 904(c)(1) have been satisfied;
6. the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
C-2
7. upon completion of the transaction, the beneficial interest being
transferred will be held through an Agent Member acting for and on behalf of
Euroclear or Cedelbank.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
--------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
-----------------------------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
C-3
EXHIBIT D
FORM OF TRANSFER CERTIFICATE --
RESTRICTED GLOBAL SECURITY TO UNRESTRICTED
GLOBAL SECURITY
(Transfers Pursuant to Sections 3.13(b)(iii) and 3.13(c)(iii) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 13 3/8% Senior Discount Notes
due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of October 29, 1999
between the Company and Citibank, N.A., as trustee, ( the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$] [pound sterling]_____ principal amount
at maturity of Securities, which are evidenced by the following certificate(s)
(the "Specified Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a Global Security, they
are held through the appropriate Depositary or an Agent Member in the name of
the Undersigned, as or on behalf of the Owner.
D-1
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of an interest in
the Regulation S Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
904 or Rule 144 under the Securities Act and with all applicable securities laws
of the states of the United States and other jurisdictions. Accordingly, the
Owner hereby further certifies as follows:
(1) Rule 904 Transfers. If the transfer is being effected in accordance
with Rule 904:
(A) the Owner is not a distributor of the Specified Securities, an
Affiliate of the Company or any such distributor or a person acting on behalf of
any of the foregoing;
(B) the offer of the Specified Securities was not made to a person in
the United States;
(C) either:
(i) at the time the buy order was originated, the Transferee was
outside the United States or the Owner and any person acting on its behalf
reasonably believed that the Transferee was outside the United States; or
(i) the transaction is being executed in, on or through the
facilities of the Eurobond market, as regulated by the Association of
International Bond Dealers, or another designated offshore securities market and
neither the Owner nor any person acting on its behalf knows that the
transactions has been prearranged with a buyer in the United States;
(D) no directed selling efforts have been made in the United States by
or on behalf of the Owner or any Affiliate thereof;
(E) if the Owner is a dealer in securities or has received a selling
concession, fee or other remuneration in respect of the Specified Securities,
and the transfer is to occur during the Restricted Period, then the requirements
of Rule 904(c)(1) have been satisfied; and
D-2
(F) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act.
(2) Rule 144 Transfers. If the transfer is being effected pursuant to Rule
144:
(A) the transfer is occurring after [date one year after the latest
date of issuance of any of the Specified Securities] and is being effected in
accordance with the applicable amount, manner of sale and notice requirements of
Rule 144; or
(B) the transfer is occurring after [date two years after the latest
date of issuance of any of the Specified Securities] and the Owner is not, and
during the preceding three months has not been, an Affiliate of the Company.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
--------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
-----------------------------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
D-3
EXHIBIT E
FORM OF TRANSFER CERTIFICATE --
REGULATION S GLOBAL SECURITY TO
RESTRICTED GLOBAL SECURITY
(Transfers to QIBs Pursuant to Sections 3.13(b)(iv) and 3.13(c)(iv) of the
Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 13 3/8% Senior Discount Notes
due 2009 (the "Securities")
Reference is hereby made to the Indenture, dated as of October 29, 1999
between the Company and Citibank, N.A. as trustee, (the "Indenture"). Terms
used but not defined herein and defined in Regulation S under the U.S.
Securities Act of 1933 (the "Securities Act") or in the Indenture shall have the
meanings given to them in Regulation S or the Indenture, as the case may be.
This certificate relates to [U.S.$] [pound sterling]______ principal amount
at maturity of Securities, which are evidenced by the following certificate(s)
(the "Specified Securities"):
[CUSIP][CINS][ISIN] No(s). _________________________
CERTIFICATE No(s). __________________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so.
Such beneficial owner or owners are referred to herein collectively as the
"Owner". If the Specified Securities are represented by a
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Global Security, they are held through the appropriate Depositary or an Agent
Member in the name of the Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be transferred to a
person (the "Transferee") who will take delivery in the form of an interest in
the Restricted Global Security. In connection with such transfer, the Owner
hereby certifies that such transfer is being effected in accordance with Rule
144A under the Securities Act and with all applicable securities laws of the
states of the United States and other jurisdictions. Accordingly, the Owner
hereby further certifies as follows:
(1) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a
"qualified institutional buyer" within the meaning of Rule 144A, acquiring
for its own account or for the account of a qualified institutional buyer;
and
(2) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may
be relying on Rule 144A in connection with the transfer.
This certificate and the statements contained herein are made for your
benefit and the benefit of the Company and the Initial Purchasers under the
Purchase Agreement.
Dated:
-------------------------------------------------
(Print the name of the Undersigned, as such term
is defined in the second paragraph of this
certificate.)
By:
----------------------------------------------
Name:
Title:
(If the Undersigned is a Corporation, partnership
or fiduciary, the title of the person signing on
behalf of the Undersigned must be stated.)
E-2
EXHIBIT F
UNITED PAN-EUROPE
COMMUNICATIONS N.V.
OFFICERS' CERTIFICATE
[Name], [title(s)] of United Pan-Europe Communications N.V., a public
company with limited liability organized and existing under the laws of The
Netherlands (the "Company"), and [name], [title(s)] of the Company, hereby
certify pursuant to Sections ____ and ____ of the Indenture, dated as of October
29, 1999 (the "Indenture"), between the Company and Citibank, N.A., as trustee
(the "Trustee"), that:
(i) he or she has read and understands the provisions of the Indenture and
the definitions relating thereto, (ii) the statements made in this Officers'
Certificate are based upon an examination of the provisions of the Indenture and
upon the relevant books and records of the Company, (iii) in his or her opinion,
he or she has made such examination or investigation as is necessary to enable
him or her to express an informed opinion as to whether or not the covenants and
conditions of the Indenture relating to the [authentication of the Securities]
[execution of the Indenture] [OTHER] have been complied with and (iv) in his or
her opinion, such covenants and conditions have been complied with.
IN WITNESS WHEREOF, each of the undersigned has executed this Certificate
on this ____ day of ____________, ____.
By:
-----------------------------------------------
Name:
Titles:
By:
-----------------------------------------------
Name:
Titles:
F-1
EXHIBIT G
[Date]
Citibank, N.A.
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Ladies and Gentlemen:
We have acted as special counsel to United Pan-Europe Communications N.V.,
a public company with limited liability organized and existing under the laws of
The Netherlands (the "Company"), in connection with the [initial issuance and
sale by the Company of $478,000,000 aggregate principal amount at maturity of
the Company's 13 3/8% Senior Discount Notes due 2009 and its pound sterling
191,000,000 aggregate principal amount at maturity of the Company's 13 3/8%
Senior Discount Notes due 2009 (collectively, the "Securities"), which will be
issued under an Indenture, dated as of October 29, 1999 (the "Indenture"),
between the Company and Citibank, N.A. as trustee (the "Trustee")].
This opinion is being furnished to your pursuant to Sections ____ and ____
of the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies and the
authenticity of the originals of such letter documents. In making our
examination of documents executed by parties other than the Company, we have
assumed that such parties had the power, corporate or other, to enter into and
perform all obligations thereunder and have also assumed the due authorization
by all requisite action, corporate or other, and execution and delivery by such
parties of such documents and the validity and binding effect thereof. As to
any facts material to the opinions expressed herein which we did not
independently establish or verify, we have relied upon oral or written
statements or representations of officers and other representatives of the
Company and others.
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Pursuant to Sections ____ and ____ of the Indenture, we advise you that in
our opinion:
1. We have reviewed Article __ of the Indenture setting forth certain
provisions of general application, and in particular, the pertinent provisions
of Section ___ of the Indenture setting forth the definitions of certain terms,
and Sections ___ and ___ of the Indenture providing that the Trustee is entitled
to receive an Officers' Certificate and an Opinion of Counsel in connection with
any request by the Company to take any action and setting forth certain
requirements with respect to the forms of such documents. We have also reviewed
Article ___ of the Indenture, pertaining to ____.
2. In our opinion, we have made such examination or investigation
(including an examination of the Officers' Certificate of the Company, dated as
of the date hereof, as to the matters addressed in Sections ___ and ___ of the
Indenture) as we deem necessary to enable us to express an informed opinion as
to whether or not the conditions precedent to [the authentication of the
Securities] [the execution of the Indenture] [OTHER] under Section ___ of the
Indenture have been complied with.
3. In our opinion, the conditions precedent to be satisfied with respect
to the [authentication of the Securities] [execution of the Indenture] [OTHER]
under Section __ of the Indenture have been complied with.
Members of our firm are admitted to the bar in the States of ______ and New
York, and we do not express any opinion as to the laws of any jurisdiction other
than the laws of such States and the General Corporation Law of the State of
Delaware and the laws of the United States of America.
This opinion is furnished to you solely for your benefit in connection with
the [authentication of the Securities] [execution of the Indenture] [OTHER] and
is not to be relied upon by any other person without our express written
permission.
Very truly yours,
G-2
EXHIBIT H
FORM OF CERTIFICATE TO BE DELIVERED
IN CONNECTION WITH
TRANSFERS TO INSTITUTIONAL ACCREDITED INVESTORS
(Transfers Pursuant to Section 3.14(a) of the Indenture)
Citibank, N.A.
as Trustee
5 Carmelite Street
London EC4Y 0PA
Attention: Global Agency & Trust Services
Re: United Pan-Europe Communications N.V. 13 3/8% Senior Discount Notes
due 2009 (the "Securities")
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of October 29,
1999 between the Company and Citibank, N.A. as trustee (the "Indenture").
Terms used but not defined herein have the meanings given to them in the
Indenture.
This certificate relates to [U.S. $] [pound sterling]____ principal
amount at maturity of Securities, which are evidenced by the following
certificate(s) (the "Securities"):
1. We understand that the Securities have not been registered under
the Securities Act of 1933, as amended (the "Securities Act"), and may not be
sold except as permitted in the following sentence. We understand and agree, on
our own behalf and on behalf of any accounts for which we are acting as
hereinafter stated, (x) that such Securities are being offered only in a
transaction not involving any public offering within two years after the date of
the original issuance of the Securities or if within three months after we cease
to be an affiliate (within the meaning of Rule 144 under the Securities Act) of
the Company, such Securities may be resold, pledged or transferred only (i) to
the Company, (ii) so long as the Securities are eligible for resale pursuant to
Rule 144A under the Securities Act ("Rule 144A"), to a person whom we reasonably
believe is a "qualified institution buyer" (as defined in Rule 144A) ("QIB")
that purchases for its own account or for the account of a QIB to whom notice is
given that the resale, pledge or transfer is being made in reliance on Rule 144A
(as indicated
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by the box checked by the transferor on the Certificate of Transfer on the
reverse of the certificate for the Securities), (iii) in an offshore transaction
in accordance with Regulation S under the Securities Act (as indicated by the
box checked by the transferor on the Certificate of Transfer on the reverse of
the Note if the Note is not in book-entry form), and, if such transfer is being
effected by certain transferors prior to the expiration of the "40-day
distribution compliance period" (within the meaning of Rule 903(b)(2) of
Regulation S under the Securities Act), a certificate that may be obtained from
the Trustee is delivered by the transferee, (iv) to an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (as indicated by the box checked by the transferor on the
Certificate of Transfer on the reverse of the certificate for the Securities)
which has certified to the Company and the Trustee for the Securities that it is
such an accredited investor and is acquiring the Securities for investment
purposes and not for distribution (provided that no Securities purchased from a
foreign purchaser or from any person other than a QIB or an institutional
accredited investor pursuant to this clause (iii) shall be permitted to transfer
any Securities so purchased to an institutional accredited investor pursuant to
this clause (iv) prior to the expiration of the "applicable restricted period"
(within the meaning of Regulation S under the Securities Act), (v) pursuant to
an exemption from registration under the Securities Act provided by Rule 144 (if
applicable) under the Securities Act, or (vi) pursuant to an effective
registration statement under the Securities Act, in each case in accordance with
any applicable securities laws of any state of the United States, and we will
notify any purchaser of the Securities from us of the above resale restriction,
if then applicable. We further understand that in connection with any transfer
of the Securities by us that the Company and the Trustee for the Securities may
request, and if so requested we will furnish, such certificates, legal opinions
and other information as they may reasonably require to confirm that any such
transfer complies with the foregoing restrictions.
2. We are able to fend for ourselves in the transactions
contemplated by this Offering Circular, we have such knowledge and experience in
financial and business matters as to be capable of evaluating the merits and
risks of our investment in the Securities, and we and any accounts for which we
are acting are each able to bear the economic risk of our or its investment and
can afford the complete loss of such investment.
3. We understand that the Company, Morgan Stanley & Co.
International Limited, Goldman Sachs International, Donaldson, Lufkin & Jenrette
Securities International, TD Securities (USA) Inc. as the initial purchasers of
the Securities ("Initial Purchasers"), and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and agreements and we
agree that if any
H-2
of the acknowledgments, representations and warranties deemed to have been made
by us by our purchase of Securities, for our own account or of one or more
accounts as to each of which we exercise sole investment discretion, are no
longer accurate, we shall promptly notify the Company and the Initial
Purchasers.
4. We are acquiring the Securities purchased by us for investment
purposes and not for distribution of our own account or for one or more accounts
as to each of which we exercise sole investment discretion and we are or such
account is an institutional "accredited investor" (as defined in rule 501(a)(1),
(2), (3) or (7) of Regulation D under the Securities Act).
5. You are entitled to rely upon this letter and you are irrevocably
authorized to produce this letter or a copy hereof to any interested party in
any administrative or legal proceeding or official inquiry with respect to the
matters covered hereby.
Very truly yours,
--------------------------------------------------
(Name of Purchaser)
By:
-----------------------------------------------
Date:
---------------------------------------------
H-3
EXHIBIT I
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Security purchased by the Company pursuant to
Section 10.10 of the Indenture, check the box:
[_] Section 10.10
If you wish to have a portion of this Security purchased by the Company
pursuant to Section 10.10 of the Indenture, state the amount:
[$_____________________(multiple of $1000)]
[pound sterling_______________(multiple of pound sterling 1000)]
Dated: Your Signature:_________________________________
(Sign exactly as your name appears on the other
side of this Security)
Signature Guaranteed:_______________________________________________
Participant in a recognized Signature Guarantee Medallion
Program (or other signature guarantor program acceptable
to the Trustee)
I-1