Form 20-F/A MILLICOM INTERNATIONAL For: Dec 31
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E-mailstatuts coordonnés de "MILLICOM INTERNATIONAL CELLULAR S.A." - 1 | P a g e
"MILLICOM INTERNATIONAL CELLULAR S.A."
société anonyme
siège social: L-1249 Luxembourg, 2, rue du Fort Bourbon
R.C.S. Luxembourg B 40630
(la "Société")
La Société a été constituée suivant acte reçu par Maître Joseph KERSCHEN, alors notaire de résidence à Luxembourg-Eich (Grand-Duché de Luxembourg), le 16 juin 1992, publié au Mémorial C, Recueil Spécial des Sociétés et Associations, numéro 395, en date du 11 septembre 1992,
et les statuts (les "Statuts") ont été modifiés à plusieurs reprises et dernièrement suivant actes reçus par:
•Maître Danielle KOLBACH, notaire alors de résidence à Redange-sur-Attert (Grand- Duché de Luxembourg), en date du 4 mai 2018, publié au Recueil Electronique des Sociétés et Associations, ("RESA"), le 22 mai 2018 sous le numéro RESA_2018_112;
•Maître Danielle KOLBACH, notaire de résidence à Junglinster (Grand-Duché de Luxembourg):
–en date du 7 janvier 2019, publié au RESA, le 6 février 2019 sous le numéro RESA_2019 _031; et
–en date du 28 février 2022, non encore publié au RESA.
STATUTS COORDONNES
basés sur les résolutions prises par l'assemblée générale extraordinaire
datée du 28 février 2022
(actuellement en vigueur)
UPDATED ARTICLES OF ASSOCIATION
based on the resolutions taken by the extraordinary general meeting
dated February 28, 2022
(currently in force)
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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Chapter I. FORM, NAME, REGISTERED OFFICE, OBJECT, DURATION
Article 1. Form, Name.
There is hereby established among the subscribers and all those who may become owners of the shares hereafter created the Company in the form of a public limited liability company (société anonyme) which will be governed by the laws of the Grand Duchy of Luxembourg ("Luxembourg"), notably the Luxembourg law of 10 August 1915 on commercial companies, as amended (the "Law"), article 1832 of the Luxembourg Civil Code, as amended, and the present articles of association (the "Articles").
The Company will exist under the name of "MILLICOM INTERNATIONAL CELLULAR S. A.".
Article 2. Registered Office.
The Company will have its registered office in Luxembourg-City.
The registered office of the Company may be transferred to any other place within Luxembourg by a resolution of the board of directors of the Company (the "Board", its members being the "Director(s)").
In the event the Board determine that extraordinary political, economic or social developments have occurred or are imminent that would interfere with the normal activities of the Company at its registered office or with the ease of communications with such office or between such office and persons abroad, the registered office may be temporarily transferred abroad until the complete cessation of the abnormal circumstances. Such temporary measures will have no effect on the nationality of the Company, which, notwithstanding the temporary transfer of the registered office, will remain a Luxembourg company. Such temporary measures will be taken and notified to any interested parties by one of the bodies or persons entrusted with the daily management of the Company.
Article 3. Purposes.
The Company's purpose is to engage in all transactions pertaining directly or indirectly to the acquisition and holding of participating interests, in any form whatsoever, in any Luxembourg or foreign business enterprise, including but not limited to, the administration, management, control and development of any such enterprise.
The Company may, in connection with the foregoing purposes, (i) acquire or sell by way of subscription, purchase, exchange or in any other manner any equity or debt securities or other financial instruments representing ownership rights, claims or assets issued by, or offered or sold to, any public or private issuer, (ii) issue any debt instruments exercise any rights attached to the foregoing securities or financial instruments, and (iii) grant any type of direct or indirect assistance, in any form, to or for the benefit of subsidiaries, affiliates or other companies in which it holds a participation directly or indirectly, including but not limited to loans, guarantees, credit facilities, technical assistance.
In a general fashion the Company may carry out any commercial, industrial or financial operation and engage in such other activities as the Company deems necessary, advisable, convenient, incidental to, or not inconsistent with, the accomplishment and development of the foregoing.
Article 4. Duration.
The Company is formed for an unlimited duration.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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Chapter II. - CAPITAL, SHARES.
Article 5. Corporate Capital.
The Company has an authorized capital of three hundred million United States Dollars (USD 300,000,000) divided into two hundred million (200,000,000) shares with a par value of one dollar fifty cents (USD 1.50). The Company has an issued capital of one hundred and fifty-two million, six hundred and eight thousand, eight hundred and twenty-five dollars and fifty cents (United States Dollars) (USD 152,608,825.50) represented by one hundred and one million, seven hundred and thirty-nine thousand, two hundred and seventeen (101,739,217) shares with a par value of one dollar and fifty cents (USD 1.50) each, fully paid-in.
The authorized capital of the Company may be increased or reduced by a resolution of the shareholders of the Company (the "Shareholder(s)") adopted in the manner required by the Law for amendment of these Articles.
The Board is authorized and empowered to:
(i)realize any increase of the issued capital within the limits of the authorized capital in one or several successive tranches, by issuing of new shares, against payment in cash or in kind, by conversion of claims, integration of distributable reserves or premium reserves, or in any other manner;
(ii)determine the place and date of the issue or the successive issues, the issue price, the terms and conditions of the subscription of and paying up on the new shares; and
(iii)remove or limit the preferential subscription right of the Shareholders in case of issue of shares against payment in cash to a maximum of new shares representing 5% of the then outstanding shares (including shares held in treasury by the Company itself).
This authorization is valid until 4 May 2023, and it may be renewed by an extraordinary general meeting of the Shareholders for those shares of the authorized corporate capital which up to then will not have been issued by the Board.
Following each increase of the corporate capital realized and duly stated in the form provided for by the Law, the first paragraph of this article 5 will be modified so as to reflect the actual increase; such modification will be recorded in authentic form by the Board or by any person duly authorized and empowered by it for this purpose.
Article 6. Shares.
The shares will be in the form of registered shares.
The Company's shares may be held in electronic format in accordance with the requirements of the stock exchanges on which the Company's shares may be listed from time to time or may be represented by physical share certificates.
Every holder of shares shall be entitled, without payment, to receive one registered certificate for all such shares or to receive several certificates for one or more of such shares upon payment for every certificate after the first of such reasonable out-of-pocket expenses as the Board may from time to time determine. A registered holder who has transferred part of the shares comprised in his registered holding shall be entitled to a certificate for the balance without charge.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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Share certificates shall be signed by two Directors. But such signatures may be either manual, or printed, or by facsimile. The Company may issue temporary share certificates in such form as the Board may from time to time determine.
Shares of the Company shall be registered in the register of the Shareholders which shall be kept by the Company or by one or more persons designated therefor by the Company; such register shall contain the name of each holder, his residence or elected domicile and the number of shares held by him. Every transfer and devolution of a share shall be entered in the register of the Shareholders.
The shares shall be freely transferable.
Transfer of shares shall be effected by delivering the certificate or certificates representing the same to the Company along with an instrument of transfer satisfactory to the Company or by written declaration of transfer inscribed in the register of the Shareholders, dated and signed by the transferor, or by persons holding suitable powers of attorney to act therefor.
Every Shareholder must provide the Company with an address to which all notices and announcements from the Company may be sent. Such address will also be entered in the register of the Shareholders.
In the event that such Shareholder does not provide such an address, the Company may permit a notice to this effect to be entered in the register of the Shareholders and the Shareholder's address will be deemed to be at the registered office of the Company, or such other address as may be so entered by the Company from time to time, until another address shall be provided to the Company by such Shareholder. The Shareholder may, at any time, change his address as entered in the register of the Shareholders by means of a written notification to the Company at its registered office or at such other address as may be set by the Company from time to time and notice thereof given to the Shareholders.
The Company will recognise only one holder of a share of the Company. In the event of joint ownership, the Company may suspend the exercise of any right deriving from the relevant share until one person shall have been designated to represent the joint owners vis-a-vis the Company.
If any shareholder can prove to the satisfaction of the Company that his share certificate has been mislaid, lost, stolen or destroyed, then, at his request, a duplicate certificate may be issued under such conditions as the Company may determine subject to applicable provisions of the Law.
Mutilated share certificates may be exchanged for new ones on the request of any shareholder. The mutilated certificates shall be delivered to the Company and shall be annulled immediately.
The Company may repurchase its shares of common stock using a method approved by the Board of the Company in accordance with the Law and the rules of the stock exchange(s) on which the Company's common stock may be listed from time to time.
As required by the Luxembourg law on transparency obligations of 11 January 2008 (the "Transparency Law"), any person who acquires or disposes of shares in the Company's capital must notify the Company's Board of the proportion of shares held by the relevant person as a result of the acquisition or disposal, where that proportion reaches, exceeds or falls below the thresholds referred to in the Transparency Law. As per the Transparency Law, the above also applies to the mere entitlement
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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to acquire or to dispose of, or to exercise, voting rights in any of the cases referred to in the Transparency Law. As per this article, the requirements of the Transparency Law also apply where the mentioned proportion reaches, exceeds or falls below a threshold of 5%. The penalties provided for in article 28 of the Transparency Law apply to any breach of the above mentioned obligation, including with respect to the 5% threshold.
Chapter III. - BOARD, STATUTORY AUDITORS.
Article 7. Board.
The Company will be administered by a Board composed of at least 6 (six) members. Members of the Board need not be shareholders of the Company. The Directors, and the chairman of the Board (the "Chairman"), will be elected by the general meeting of shareholders ("General Meeting"), which will determine their number, for a period not exceeding 6 (six) years, and they will hold office until their successors are elected. Where a legal person is appointed as a director (the "Legal Entity"), the Legal Entity must designate a natural person as permanent representative (représentant permanent) who will represent the Legal Entity as a member of the Board in accordance with article 441-3 of the Law. In the event of a vacancy on the Board, the remaining Directors may meet and may elect by majority vote a director to fill such vacancy until the next General Meeting.
In proposing persons to be elected as Directors at the General Meeting, the Company shall comply with the nomination committee rules of the Swedish Code of Corporate Governance, so long as such compliance does not conflict with applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company's shares are listed.
In the event that the Company does not comply with the nomination committee rules of the Swedish Code of Corporate Governance and a committee of the Board is established to propose persons to be elected as Directors at the General Meeting, any Shareholder holding at least 20% of the issued and outstanding shares of the Company, excluding treasury shares, shall have the right to designate:
1.one of the then-serving Directors to be a member of such committee, so long as such designation and the Director so designated meet the requirements of any applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company's shares are listed, and
2.one person, who may or may not be a Director, to attend any meeting of such committee as an observer, without the right to vote at such meeting, so long as such attendance does not conflict with applicable mandatory law or regulation or the mandatory rules of any stock exchange on which the Company's shares are listed.
Any designation made pursuant to the provisions of the immediately preceding paragraph shall lapse upon such designating Shareholder holding less than 20% of the issued and outstanding shares of the Company, excluding treasury shares.
Article 8. Meetings of the Board.
The Board may choose a secretary, who need not be a director, and who shall be responsible for keeping minutes of the meetings of the Board and of the resolutions passed at the General Meeting.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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The Board will meet upon call by the Chairman. A meeting of the board must be convened if any two Directors so require.
The Chairman shall preside at all meetings of the Board of the Company, except that in his absence the Board may elect by a simple majority of the Directors present another Director or a duly qualified third party as Chairman of the relevant meeting.
Except in cases of urgency or with the prior consent of all those entitled to attend, at least 3 (three) days' written notice of board meetings shall be given. Any such notice shall specify the time and place of the meeting and the nature of the business to be transacted. No such written notice is required if all the members of the Board are present ore represented during the meeting and if they state to have been duly informed, and to have had full knowledge of the agenda of the meeting. The written notice may be waived by the consent in writings, whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed, of each member of the Board. Separate written notice shall not be required for meetings that are held at times and places determined in a schedule previously adopted by resolution of the Board.
Every Board meeting shall be held in Luxembourg or at such other place as the Board may from time to time determine.
Any member of the Board may act at any meeting of the Board by appointing in writing, whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed, another Director as his or her proxy.
A quorum of the Board shall be the presence of 4 (four) of the Directors holding office. Decisions will be taken by the affirmative votes of a simple majority of the Directors present or represented.
Notwithstanding the foregoing, a resolution of the Board may also be passed in writing, in case of urgency or where other exceptional circumstances so require. Such resolution shall be unanimously approved by the Directors and shall consist of one or several documents containing the resolutions either (i) signed manually or electronically by means of an electronic signature which is valid under Luxembourg law or (ii) agreed upon via a consent in writing by email to which an electronic signature (which is valid under Luxembourg law) is affixed. The date of such a resolution shall be the date of the last signature or, if applicable, the last consent.
Any Director may participate in a meeting of the Board by conference call, video conference or similar means of communication equipment whereby (i) the Directors attending the meeting can be identified, (ii) all persons participating in the meeting can hear and speak to each other, (iii) the transmission of the meeting is performed on an on-going basis and (iv) the directors can properly deliberate, and participating in a meeting by such means shall constitute presence in person at such meeting. A meeting of the Board held by such means of communication will be deemed to be held in Luxembourg.
Article 9. Minutes of meetings of the Board.
The minutes of any meeting of the Board will be signed by the Chairman of the meeting. Any proxies will remain attached thereto.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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Copies or extracts of such minutes of board meetings or written resolutions passed by the Board which may be produced in judicial proceedings or otherwise will be executed by the Chairman, any Chairman of the relevant meeting of the Board or any two members of the Board.
Article 10. Powers of the Board.
The Board is vested with the broadest powers to perform all acts necessary or useful for accomplishing the corporate object of the Company. All powers not expressly reserved by the Law or by the present Articles to the General Meeting are in the competence of the Board.
Article 11. Delegation of Powers.
The Board may delegate the daily management of the Company and the representation of the Company within such daily management to one or more Directors, officers, executives, employees or other persons who may but need not be Shareholders, or delegate special powers or proxies, or entrust determined permanent or temporary functions to persons or agents chosen by it.
Article 12. Directors' Remuneration.
Each of the Directors will be entitled to fees for acting as such at such rate as may from time to time be determined by resolution of the General Meeting. Any Director to whom is delegated daily management or who otherwise hold executive office will also be entitled to receive such remuneration (whether by way of salary, participation in profits or otherwise and including pension salary and including pension contributions) as the Board may from time to time decide.
Article 13. Conflict of Interests.
No contract or other transaction between the Company and any other person shall be affected or invalidated by the fact that any director, officer or employee of the Company has a personal interest in, or is a Director, officer or employee of such other person, except that (x) such contract or transaction shall be negotiated on an arms' length basis on terms no less favourable to the Company than could have been obtained from an unrelated third party and, in the case of a director, the director shall abstain from voting on any matters that pertain to such contract or transaction at any meeting of the Board of the Company, and (y) any such personal interest shall be fully disclosed to the Company by the relevant director, officer or employee.
In the event that any director or officer of the Company may have any personal interest in any transaction of the Company, he shall make known to the board such personal interest and shall not consider or vote on any such transaction, and such transaction and such director's or officer's interest therein shall be reported to the next General Meeting.
Article 14. Indemnification
The Company shall indemnify any director or officer and his/her heirs, executors and administrators for any damages, compensations and costs to be paid by him/her and any expenses reasonably incurred by him/her as a consequence of, or in connection with any action, suit or proceeding to which he/she may be a party by reason of him/her being or having been a director or officer of the Company, or, at the request of the Company, of any other company of which the Company is a shareholder or creditor, except in relation to matters as to which he/she shall be finally judged in such action, suit or
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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proceeding to be liable for gross negligence or wilful misconduct; in the event of a settlement, indemnification shall be provided only in connection with such matters covered by the settlement as to which the Company is advised by its legal counsel that the person to be indemnified did not commit such breach of duty. The foregoing right of indemnification shall not exclude other rights to which he/she may be entitled.
The indemnification by the Company shall include the right of the Company to pay or reimburse a defendant's reasonable legal costs before any proceeding or investigation against the defendant shall have resulted in a final judgment, settlement or conclusion, provided the Company's Directors shall have determined in good faith that the defendant's actions did not constitute wilful and deliberate violations of the Law and shall have obtained the relevant legal advice to that effect.
Article 15. Representation of the Company.
The Company will be bound towards third parties by the joint signatures of any two Directors or by the individual signature of the person to whom the daily management of the Company has been delegated, within such daily management, or by the joint signatures or single signature of any persons to whom such signatory power has been delegated by the board, but only within the limits of such power.
Article 16. Auditors.
The supervision of the operations of the Company is entrusted to one or more auditors who need not be Shareholders.
The auditors will be elected by the General Meeting by a simple majority of the votes present or represented at such General Meeting, which will determine their number, for a period not exceeding (6) six years. They will hold office until their successors are elected. They are reeligible, but they may be removed at any time, with or without cause, by a resolution adopted by a simple majority of the Shareholders present or represented at the General Meeting.
Chapter IV. - MEETINGS OF SHAREHOLDERS.
Article 17. Powers of the General Meeting.
Any regularly constituted General Meeting of the Company represents the entire body of the Shareholders. It has the powers conferred upon it by the Law.
Article 18.
The Board will determine in the convening notice the formalities to be observed by each Shareholder for admission to a General Meeting.
Article 19. Annual General Meeting.
The annual General Meeting will be held in Luxembourg within six (6) months as of close of the relevant financial year, at the registered office of the Company or at such other place in Luxembourg as may be specified in the notice convening the annual General Meeting. The chairman of the annual General Meeting shall be elected by the Shareholders.
Article 20. Other General Meetings.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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Such General Meetings must be convened by the Board of the Company if the Shareholders representing at least ten percent (10%) of the Company's issued share capital so require.
Article 21. Procedure, Vote.
The Shareholders will meet upon call by the Board or the auditor or the auditors made in the forms provided for by the Law. The notice will contain the agenda of the General Meeting.
If all the Shareholders are present or represented at the General Meeting and if they state that they have been informed of the agenda of the General Meeting, the General Meeting may be held without prior notice.
A Shareholder may act at any General Meeting by appointing another person who need not be a Shareholder as its proxy in writing whether in original, by telefax, or e-mail to which an electronic signature (which is valid under the Law) is affixed.
The Shareholders may vote in writing (by way of voting bulletins) on resolutions submitted to the General Meeting provided that the written voting bulletins include (i) the last name, first name, address and the signature of the relevant Shareholder, (ii) the indication of the shares for which the shareholder will exercise such right, (iii) the agenda as set forth in the convening notice and (iv) the voting instructions (approval, refusal, abstention) for each point of the agenda. In order to be taken into account, the original or electronic copy of the voting bulletins must be received by the Company within the time period set by the Company's Board, or, absent any time period set by the Board, at least 72 (seventy-two) hours before the relevant General Meeting.
The Board may authorise and arrange for the Shareholders to exercise, in accordance with article 6 of the law of 24 May 2011 on shareholders' rights in listed companies, their voting rights and participate in a General Meeting by electronic means, ensuring, notably, any some or all of the following forms of participation:
a)a real-time transmission of the Shareholders' General Meeting;
b)a real-time two-way communication enabling Shareholders to address the General Meeting from a remote location; and
c)a mechanism for casting votes, whether before or during the General Meeting, without the need to appoint a proxy who is physically present at the General Meeting.
Any Shareholder who participates in a General Meeting through such means shall be deemed to be present at the place of the General Meeting for the purposes of the quorum and majority requirements. The use of electronic means allowing the Shareholders to take part in the General Meeting may be subject only to such requirements as are necessary to ensure the identification of the Shareholders and the security of the electronic communication, and only to the extent that they are proportionate to achieving that objective.
The Board may determine the electronic means referred to above in this Article 21 para. 5 and all other conditions that must be fulfilled in order to take part in the General Meeting in accordance with Luxembourg law.
The Shareholders shall be entitled at each General Meeting to one vote for every share.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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No quorum is required for the General Meeting and resolutions are adopted at such General Meeting by a simple majority of the votes cast. Unless otherwise required under the Law, an extraordinary General Meeting convened to amend any provisions of the Articles or the withdrawal of the Company's shares from public listing in going-private transaction, shall not validly deliberate unless at least one half of the share capital is represented and the agenda indicates the proposed amendments to the Articles. If the first of these conditions is not satisfied, a second extraordinary General Meeting may be convened, in the manner prescribed by the Articles or by the Law. The second extraordinary General Meeting shall validly deliberate regardless of the proportion of capital represented. At both extraordinary General Meetings, resolutions, in order to be adopted, must be adopted by a two-third majority of the votes cast. Copies or extract of the minutes of the General Meetings to be produced in court will be signed by the Chairman or by any two Directors.
Chapter V. FINANCIAL YEAR, DISTRIBUTION OF PROFITS
Article 22. Financial Year.
The Company's financial year begins on the first day of January and ends on the last day of December in every year, except that the first financial year will begin on the date of formation of the Company and will end on the last day of December 1992.
The Board shall prepare annual accounts in accordance with the requirements of the Law and accounting practice.
Article 23. Appropriation of Profits.
Form the annual net profits of the Company, five per cent (5%) shall be allocated to the reserve required by the Law. That allocation will cease to be required as soon and for as long as such reserve amounts to ten per cent (10%) of the aggregate par value of the issued capital of the Company.
Upon recommendation of the Board, the General Meeting determines how the remainder of the annual net profits will be disposed of. It may decide to allocate the whole or part of the remainder to a reserve or to a provision reserve, to carry it forward to the next following financial year or to distribute it to the Shareholders as dividend.
Subject to the conditions fixed by the Law, the Board may pay out an advance payment on dividends. The Board fixes the amount and the date of payment of any such advance payment. Dividends may also be paid out of unappropriated net profits brought forward from prior years. Dividends shall be paid in United States Dollars or by free allotment of shares of the Company or otherwise in specie as the Directors may determine, and may be paid at such times as may be determined by the Board. Payment of dividends shall be made to holders of shares at their addresses in the register of Shareholders. No interest shall be due against the Company on dividends declared but unclaimed.
The Shareholders are entitled to share in the profits of the Company pro rata to the paid up par value of their shareholding.
Chapter VI. - DISSOLUTION, LIQUIDATION.
Article 24. Dissolution, Liquidation.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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The Company may be dissolved by a decision taken in a General Meeting resolving at the same conditions as to a quorum of presence and majority as those imposed by article 20 of the Articles.
Should the Company be dissolved, the liquidation will be carried out by one or more liquidators appointed by the General Meeting, which will determine their powers and their compensation.
The shares carry a right to a repayment (from the assets available for distribution to the Shareholders) of the nominal capital paid up in respect of such shares and the right to share in surplus assets on a winding up of the Company pro rata to the par value paid up on such shares.
Chapter VII. - APPLICABLE LAW
Article 25. Applicable Law.
All matters not governed by these Articles shall be determined in accordance with the Law.
Follows the French version of the foregoing text, being understood that in case of
discrepancies, the English text will prevail
discrepancies, the English text will prevail
Suit la version française du texte qui précède, étant entendu qu'en cas de divergences le
texte anglais prévaudra
texte anglais prévaudra
CHAPITRE Ier. - FORME, DENOMINATION, SIEGE, OBJET, DUREE.
Article 1. Forme, Dénomination.
Il est formé par les présentes entre les souscripteurs et tous ceux qui deviendront propriétaires des actions ci-après créées une société sous forme de société anonyme qui sera régie par les lois du Grand-Duché de Luxembourg ("Luxembourg"), notamment la loi du 10 août 1915 sur les sociétés commerciales, telle que modifiée (la "Loi"), l'article 1832 du Code civil, tel que modifié et les présents statuts (les "Statuts").
La Société adopte la dénomination "MILLICOM INTERNATIONAL CELLULAR S.A.".
Article 2. Siège social.
Le siège social de la Société est établi à Luxembourg-ville.
Il peut être transféré dans tout autre endroit du Luxembourg par une décision du conseil d'administration (le "Conseil", ses membres étant les "Administrateurs" et individuellement l'"Administrateur").
Au cas où le Conseil estimerait que des événements extraordinaires d'ordre politique, économique ou social de nature à compromettre l'activité normale au siège social ou la communication aisée avec ce siège ou entre ce siège et l'étranger se sont produits ou sont imminents, il pourra transférer temporairement le siège social à l'étranger jusqu'à cessation complète de ces circonstances anormales. Ces mesures provisoires n'auront aucun effet sur la nationalité de la Société, laquelle, nonobstant ce
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
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transfert provisoire du siège, restera luxembourgeoise. Pareilles mesures temporaires seront prises et portées à la connaissance des tiers par l'un des organes exécutifs de la Société ayant qualité de l'engager pour les actes de gestion courante et journalière.
Article 3. Objet.
L'objet pour lequel la Société est constituée est de s'engager dans toute opération relevant directement ou indirectement de l'acquisition de participations dans toute entreprise commerciale, y compris, mais sans que cette énumération soit limitative, l'administration, la gestion, le contrôle et le développement de toute entreprise, et de s'engager dans toutes autres opérations dans lesquelles une société de droit luxembourgeois peut s'engager.
La Société peut, en relation avec l'objet susmentionné, (i) acquérir ou vendre par la souscription, l'achat, l'échange ou tout autre procédé, des actions ou obligations ou tout autre instrument financier représentant des droits de propriété, créances ou actifs émis par, offerts ou vendus au public ou à un émetteur privé, (ii) émettre des instruments de dette et émettre des droits attachés aux actions et obligations mentionnées ci-dessus ou aux instruments financiers, et (iii) accorder tout type d'assistance directe ou indirecte, sous toute forme, à ou pour le bénéfice de succursales, filiales, ou tout autre type de société dans lesquelles elle détient directement ou indirectement une participation, y compris de manière non-exhaustive des prêts, garanties, facilités de crédit, assistance technique.
D'une manière générale, la Société peut effectuer toutes les opérations commerciales, industrielles ou financières et accomplir toute autre activité qu'elle jugera utiles à l'accomplissement et au développement de son objet social susmentionné.
Article 4. Durée.
La Société est constituée pour une durée illimitée.
CHAPITRE II. - CAPITAL, ACTIONS.
Article 5. Capital social.
Le capital autorisé de la Société est fixé à trois cent millions dollars des États Unis d'Amérique (USD 300.000.000) divisé en deux cent millions (200.000.000) actions d'une valeur nominale de un dollar des États Unis d'Amérique cinquante cents (USD 1,50). La Société a un capital social émis de cent cinquante-deux million six cent huit mille huit cent vingt-cinq dollars Américains et cinquante cents (USD 152.608.825,50) représentés par cent un million sept cent trente-neuf mille deux cent dix-sept (101.739.217) actions d'une valeur nominale d'un dollar Américain et cinquante cents (USD 1,50) chacune, entièrement libérées.
Le capital autorisé de la Société peut être augmenté ou réduit par décision des actionnaires de la Société (les "Actionnaires") adoptée de la manière requise par la Loi pour la modification de ces Statuts.
Le Conseil est autorisé à et mandaté pour :
(i)procéder à toute augmentation du capital émis dans les limites du capital autorisé en une ou plusieurs tranches successives, par émission de nouvelles actions, ayant pour contrepartie le paiement
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en espèces ou en nature, par la conversion de dettes, l'intégration de réserves distribuables ou de réserves de prime d'émission, ou de toute autre manière;
(ii)fixer le lieu et la date d'émission ou des émissions successives, le prix d'émission, les conditions et modalités de souscription et de libération des actions nouvelles; et
(iii)supprimer ou limiter le droit préférentiel de souscription des Actionnaires en cas d'émission d'actions contre paiement en espèces, jusqu'à un nombre total maximum d'actions nouvelles représentant 5% des actions déjà émises (ce y compris les actions propres détenues par la Société).
Cette autorisation est valable jusqu'au 4 mai 2023, et elle pourra être renouvelée par décision de l'assemblée générale extraordinaire des Actionnaires pour les actions du capital social autorisé qui n'auront pas jusqu'alors été émises par le Conseil.
À la suite de chaque augmentation de capital réalisée et dûment constatée dans la forme prévue par la Loi, le premier alinéa de cet article 5 sera modifié de manière à refléter l'augmentation; une telle modification sera constatée par acte notarié par le Conseil ou par toute personne dûment autorisée et mandatée par celui-ci a cette fin.
Article 6. Actions.
Les actions sont sous forme nominative.
Les actions de la Société peuvent être détenues sous forme électronique en accord avec les règles des bourses de valeurs sur lesquelles les actions de la Société peuvent être cotées de temps à autre, ou peuvent être représentées par des certificats physiques.
Chaque Actionnaire aura le droit de recevoir gratuitement un certificat nominatif représentant ses actions ou de recevoir plusieurs certificats représentant une ou plusieurs de ses actions après paiement, pour chaque certificat émis après l'établissement du premier certificat, des frais raisonnables que le Conseil arrête de temps à autres. Un actionnaire nominatif qui transfère une partie des actions comprises dans sa participation nominative aura droit sans frais à un certificat représentant le solde de ses actions.
Les certificats d'actions seront signés par deux Administrateurs. Les signatures peuvent être soit manuelles, soit imprimées, soit par facsimile. La Société peut émettre des certificats d'actions temporaires dans la forme que le Conseil détermine de temps à autre.
Les actions de la Société seront enregistrées dans le registre des Actionnaires qui sera tenu par la Société ou par une ou plusieurs personnes désignées à cet effet par la Société ; ce registre renseigne le nom de chaque actionnaire, son adresse ou domicile élu et le nombre d'actions détenues par lui. Toute cession ou dévolution d'une action sera inscrite dans le registre des Actionnaires.
Les actions seront librement cessibles.
La cession d'actions sera effectuée par la délivrance à la Société du ou des certificats représentant celles-ci à l'appui du document de cession dans une forme satisfaisant la Société ou par une déclaration de cession écrite inscrite au registre des Actionnaires, datée et signée par le cessionnaire, ou par les personnes détenant les pouvoirs de représentation appropriés à cet effet.
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Tout Actionnaire est tenu de fournir à la Société une adresse à laquelle toute notification et tout avis de la Société pourront être envoyés. Cette adresse sera inscrite dans le registre des Actionnaires.
Au cas où un Actionnaire ne fournirait pas une telle adresse, la Société pourra autoriser l'inscription d'une mention à cet effet dans le registre des Actionnaires et l'adresse de l'Actionnaire sera censée être au siège social de la Société, ou à telle autre adresse que la Société mentionnera de temps à autre dans le registre des Actionnaires, jusqu'à ce qu'une autre adresse soit fournie à la Société par cet Actionnaire. L'Actionnaire pourra, à tout moment, changer son adresse inscrite au registre des Actionnaires au moyen d'une communication écrite envoyée à la Société à son siège social ou à toute autre adresse indiquée de temps à autre par la Société par avis donné aux Actionnaires.
La Société ne reconnaitra qu'un propriétaire par action émise par la Société. Dans le cas d'une copropriété, la Société pourra suspendre l'exercice de tout droit lié à l'action concernée jusqu'à ce qu'une personne soit désignée pour représenter les copropriétaires envers la Société.
Si un Actionnaire peut établir à suffisance de droit envers la Société que son certificat d'action a été détourné, perdu, volé ou détruit, un duplicata pourra lui être délivré à sa demande aux conditions déterminées par la Société sous réserve des dispositions applicables de la Loi.
Les certificats d'actions endommagés pourront être échangés contre des certificats nouveaux à la demande de tout Actionnaire. Les certificats endommagés seront remis à la Société et annulés immédiatement.
La Société peut racheter ses propres actions selon une méthode approuvée par le Conseil en accord avec la Loi et les règles des bourses de valeurs auxquelles les actions de la Société peuvent être cotées de temps à autre.
Comme requis par la loi luxembourgeoise relative aux obligations de transparence du 11 janvier 2008 (la "Loi Transparence"), toute personne qui acquiert ou dispose des actions dans le capital de la Société est tenue de notifier au Conseil le pourcentage d'actions détenues par la personne concernée suite à l'acquisition ou la cession, lorsque ce pourcentage atteint, passe au-dessus ou en dessous des seuils mentionnées par la Loi Transparence. Selon la Loi Transparence, ce qui précède s'applique aussi au seul droit d'acquérir ou de céder ou d'exercer des droits de vote dans chacun des cas auxquels la Loi Transparence fait référence. Selon cet Article, les conditions de la Loi Transparence s'appliquent aussi quand le pourcentage mentionné atteint, passe au-dessus ou en dessous de 5%. Les sanctions édictées par l'article 28 de la Loi Transparence s'appliquent à toute violation de l'obligation susmentionnée, y inclus par rapport au seuil de 5%.
CHAPITRE III. – CONSEIL, COMMISSAIRE AUX COMPTES.
Article 7. Conseil.
La Société est administrée par un Conseil composé de 6 (six) membres au moins. Les membres du Conseil n'ont pas besoin d'être actionnaires de la Société. Les Administrateurs et le président du Conseil (le "Président") seront élus par l'assemblée générale des actionnaires (l'"Assemblée Générale"), qui déterminera leur nombre, pour une période n'excédant pas 6 (six) années, et ils resteront en fonction jusqu'à ce que leurs successeurs soient élus. Quand une personne morale sera
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nommée administrateur (la "Personne Morale"), la Personne Morale devra désigner une personne physique (représentant permanent) qui devra représenter la Personne Morale comme membre du Conseil conformément à l'article 441-3 de la Loi. En cas de vacance d'une ou de plusieurs places d'Administrateurs, les Administrateurs restants ont le droit d'élire par un vote majoritaire un autre Administrateur jusqu'à la prochaine Assemblée Générale.
Lorsqu'elle proposera la nomination de personnes en tant qu'Administrateurs à l'Assemblée Générale, la Société devra se conformer aux règles et procédures du comité de nomination du Code de Gouvernance d'Entreprise suédois, pour autant que l'observation desdites règles ne soit pas en contradiction avec la loi ou la réglementation impérative applicable, ni avec les règles impératives de tout marché boursier sur laquelle les actions de la société sont cotées.
Dans le cas où la Société ne se conformerait pas aux règles du comité de nomination du Code de Gouvernance d'Entreprise suédois et lorsqu'un comité du Conseil est créé pour proposer la nomination de personnes en tant qu'Administrateurs à l'Assemblée Générale, tout Actionnaire détenant au moins 20% des actions émises et en circulation de la Société, à l'exclusion des actions propres, a le droit de nommer :
1.un des Administrateurs en fonction, pour devenir membre de ce comité, à condition que cette nomination et l'Administrateur ainsi désigné, respectent les exigences de toute loi ou réglementation impérative applicable ainsi que les règles impératives de tout marché boursier sur laquelle les actions de la société sont cotées, et
2.une personne, qui peut être ou non un Administrateur, qui assistera aux réunions de ce comité en tant qu'observateur, sans disposer du droit de vote lors de ces réunions, pour autant que cette participation n'entre pas en conflit avec la loi ou la réglementation impérative applicable ou avec les règles impératives de tout marché boursier sur laquelle les actions de la Société sont cotées.
Toute nomination faite en application du paragraphe précédent deviendra caduque à partir du moment où l'actionnaire qui a procédé à la nomination détient moins de 20% des actions émises et en circulation de la Société, à l'exclusion des actions propres.
Article 8. Réunions du Conseil.
Le Conseil peut choisir un secrétaire, qui ne doit pas être Administrateur et qui sera responsable de. la rédaction des procès-verbaux des réunions du Conseil et des résolutions prises lors des Assemblées Générales.
Le Conseil se réunira sur convocation du Président. Une réunion du Conseil doit être convoquée si deux Administrateurs le demandent.
Le président présidera toutes les réunions du Conseil, mais en son absence le Conseil désignera à la majorité simple des Administrateurs présents un autre Administrateur ou un tiers dûment qualifié pour présider la réunion.
Avis écrit de toute réunion du Conseil sera donné à tous les Administrateurs au moins 3 (trois) jours avant la date prévue pour la réunion, sauf s'il y a urgence ou avec l'accord de tous ceux qui ont droit d'assister à cette réunion. La convocation indiquera le lieu de la réunion et en contiendra l'ordre du jour.
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Une telle convocation n'est pas requise si tous les membres du Conseil sont présents ou représentés à l'occasion de la réunion et s'ils précisent qu'ils ont été dûment informés, et avoir eu pleine connaissance de l'ordre du jour de la réunion. La nécessité d'une convocation peut être supprimée si les membres y consentent par écrit, que ce soit par un original, un fax, ou un e-mail sur lequel une signature électronique (valide selon le droit luxembourgeois) est apposée, de chaque membre du Conseil. Une convocation écrite séparée ne sera pas requise pour les réunions qui sont tenues à des moments et des lieux déterminés dans une annexe adoptée antérieurement par une résolution du Conseil.
Toute réunion du Conseil se tiendra à Luxembourg ou à tout autre endroit que le Conseil peut de temps à autres arrêter.
Tout membre du Conseil peut agir à n'importe quelle réunion du Conseil en nommant par écrit, que ce soit par un original, un fax, ou un courriel sur lequel une signature électronique (valide selon le droit luxembourgeois) est apposée, un autre Administrateur comme son mandataire.
Le Conseil ne pourra délibérer et agir valablement que si 4 (quatre) Administrateurs sont présents. Les décisions sont prises à la majorité simple des voix des Administrateurs présents ou représentés.
Nonobstant ce qui précède, une résolution du Conseil pourra aussi être adoptée en cas d'urgence ou si d'autres circonstances exceptionnelles le justifient. Une telle résolution devra être approuvée unanimement par les Administrateurs et consistera en un ou plusieurs documents contenant les résolutions soit (i) signées manuellement ou électroniquement par le biais d'une signature électronique valable en droit luxembourgeois ou (ii) convenues par un consentement écrit par email auquel une signature électronique (valable en droit luxembourgeois) est apposée. La date de cette résolution sera la date de la dernière signature ou, selon le cas, du dernier accord.
Chaque Administrateur pourra participer à une réunion du Conseil par conférence téléphonique, visio-conférence ou tout autre moyen de communication similaire par lequel (i) les Administrateurs présents à la réunion peuvent être identifiés, (ii) toutes les personnes participant à la réunion peuvent entendre et parler à chacun d'entre eux, (iii) la transmission de la réunion est réalisée de manière ininterrompue et (iv) les Administrateurs peuvent débattre comme il se doit, et participent à une réunion par tout moyen qui équivaut à une présence physique à la réunion. Une réunion du Conseil tenue par de tels moyens de communication sera réputée avoir été tenue à Luxembourg.
Article 9. Procès-verbaux des réunions du Conseil.
Les procès-verbaux de toute réunion du Conseil seront signés par le Président. Les procurations resteront annexées aux procès-verbaux.
Les copies ou extraits de ces procès-verbaux ainsi que des résolutions circulaires adoptées par le Conseil, destinés à servir en justice ou ailleurs, seront signés par le Président, tout Président de la réunion du Conseil concernée ou par deux membres du Conseil.
Article 10. Pouvoirs du Conseil.
Le Conseil a les pouvoirs les plus larges pour accomplir tous les actes nécessaires ou utiles à la réalisation de l'objet social de la Société. Tous les pouvoirs qui ne sont pas réservés expressément à l'Assemblée Générale par la Loi ou les présents statuts sont de la compétence du Conseil.
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Article 11. Délégation de pouvoirs.
Le Conseil peut déléguer la gestion journalière de la Société ainsi que la représentation de la Société en ce qui concerne cette gestion à un ou plusieurs Administrateurs, directeurs, fondés de pouvoirs, employés ou autres agents qui n'auront pas besoin d'être Actionnaires, ou conférer des pouvoirs ou mandats spéciaux ou des fonctions permanentes ou temporaires à des personnes ou agents de son choix.
Article 12. Rémunération des Administrateurs.
Chaque Administrateur aura droit à une rémunération pour l'exercice de ses fonctions d'Administrateur au taux qui sera déterminé de temps à autre par l'Assemblée Générale. Un Administrateur à qui est déléguée la gestion journalière ou qui exerce par ailleurs des fonctions exécutives aura également droit à une rémunération (que ce soit sous la forme d'un salaire, d'une participation aux profits ou autrement y compris une pension de retraite, et une contribution à une pension de retraite) telle que le Conseil pourra arrêter de temps à autre.
Article 13. Conflits d'Intérêts.
Aucun contrat ni aucune transaction que la Société pourra conclure avec un tiers ne pourra être affecté ou invalide par le fait qu'un Administrateur, directeur ou employé de la Société ait un intérêt personnel ou soit un Administrateur, directeur ou employé de ce tiers, tant que (x) ce contrat ou transaction sera négocié de plein gré à des termes non moins favorables pour la Société que ceux qui auraient pu être obtenus d'une partie tierce, et dans le cas d'un administrateur, celui-ci devra s'abstenir de voter sur tout sujet qui concerne ce contrat ou cette transaction à toute réunion du Conseil de la Société, et (y) tout intérêt personnel sera notifié à la Société par l'Administrateur, le directeur ou l'employé concerné.
Au cas où un Administrateur ou fondé de pouvoirs aurait un intérêt personnel dans une transaction de la Société, il en avisera le Conseil et il ne pourra prendre part aux délibérations ou émettre un vote au sujet de cette opération, et cette transaction ainsi que l'intérêt personnel de l'Administrateur ou du fondé de pouvoir seront portés à la connaissance de la prochaine Assemblée Générale.
Article 14. Indemnisation.
La Société indemnisera tout Administrateur ou fondé de pouvoirs et leurs héritiers, exécuteurs testamentaires et administrateurs de biens pour tous dommages-intérêts, compensations et dépenses à leur charge ainsi que tous frais raisonnables qu'ils auraient encouru par suite ou en conséquence de leur comparution en tant que défendeurs dans des actions en justice, des procès ou des poursuites judiciaires que leur auront été intentés de par leur fonctions actuelles ou anciennes d'administrateur ou de fondé de pouvoirs de la Société, ou à la demande de la Société, de toute autre société dans laquelle la Société est actionnaire ou créancier exception faite pour les cas où ils auraient été déclarés coupables de négligence grave ou pour avoir volontairement manqué à leurs devoirs envers la Société; en cas d'arrangement transactionnel, l'indemnisation ne portera que sur les matières couvertes par l'arrangement transactionnel et dans ce cas seulement si la Société est informée par son conseiller juridique que la personne à indemniser n'aura pas manqué à ses devoirs envers la Société. Le droit à
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indemnisation qui précède n'exclut pas pour les personnes susnommées le recours à d'autres droits auxquels elles pourraient prétendre.
L'indemnisation par la Société inclura le droit pour la Société de payer ou rembourser les frais légaux raisonnables d'un défendeur avant que toute procédure ou investigation contre le défendeur ait résulte en un jugement final, une transaction ou conclusion, à condition que les Administrateurs de la Société aient décidé de bonne foi que les actions du défendeur ne constituaient pas des violations intentionnelles et délibérées de la loi et qu'ils ont repo un avis juridique pertinent à ce sujet.
Article 15. Représentation de la Société.
Vis-à-vis des tiers, la Société sera engagée par les signatures conjointes de deux Administrateurs, ou par la signature individuelle de la personne à laquelle la gestion journalière de la Société a été déléguée, dans le cadre de cette gestion journalière, ou par la signature conjointe ou par la signature individuelle de toutes personnes à qui un tel pouvoir de signature aura été délégué par le Conseil, mais seulement dans les limites de ce pouvoir.
Article 16. Commissaire aux comptes.
Les opérations de la Société seront surveillées par un ou plusieurs commissaires aux comptes, Actionnaires ou non.
Le ou les commissaires aux comptes seront nommés par l'Assemblée Générale à la majorité simple des actions présentes ou représentées, qui déterminera leur nombre, pour une durée qui ne peut dépasser 6 (six) ans. Ils resteront en fonction jusqu'à ce que leurs successeurs soient élus. Ils sont rééligibles mais ils peuvent être révoqués à tout moment, avec ou sans motif, par une décision adoptée à une majorité simple des Actionnaires présents ou représentés.
CHAPITRE IV. - ASSEMBLEE GENERALE DES ACTIONNAIRES.
Article 17. Pouvoirs de l'Assemblée Générale.
Toute Assemblée Générale régulièrement constituée représente l'ensemble des Actionnaires. Elle a tous les pouvoirs qui lui sont réservés par la Loi.
Article 18.
Le Conseil déterminera dans l'avis de convocation les formalités devant être observées par chaque Actionnaire pour être admis à l'Assemblée Générale.
Article 19. Assemblée Générale annuelle.
L'Assemblée Générale annuelle se réunit au Grand-Duché de Luxembourg endéans six (6) mois à compter de la clôture de l'exercice social approprié, au siège social de la Société ou à tel autre endroit au Luxembourg indiqué dans l'avis convoquant l'Assemblée Générale annuelle. Le Président de l'Assemblée Générale annuelle sera élu par les Actionnaires.
Article 20. Autres Assemblées Générales.
De telles Assemblées Générales doivent être convoquées par le Conseil si les Actionnaires représentant au moins 10% du capital social de la Société le demandent.
Article 21. Procédure, vote.
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Les Actionnaires seront convoqués par le Conseil ou par le ou le(s) commissaire(s) aux comptes conformément aux conditions fixées par la Loi. La convocation contiendra l'ordre du jour de l'Assemblée Générale.
Si tous les Actionnaires sont présents ou représentés à l'Assemblée Générale et déclarent avoir eu connaissance de l'ordre du jour de l'Assemblée Générale, celle-ci peut se tenir sans convocations préalables.
Un Actionnaire peut agir à une Assemblée Générale en nommant une autre personne qui ne doit pas nécessairement être Actionnaire comme son mandataire, par écrit, que ce soit par un original, un fax, ou un courriel auquel une signature électronique (valide selon le droit luxembourgeois) est apposée.
Les Actionnaires ont la possibilité de voter par écrit (par le biais de bulletins de vote) sur les résolutions soumises à l'Assemblée Générale à la condition que les bulletins de vote écrits incluent (i) le nom, le prénom, l'adresse et la signature de l'Actionnaire concerné, (ii) l'indication des actions pour lesquelles l'Actionnaire exercera ce droit, (iii) l'agenda tel qu'indiqué dans la convocation écrite et (iv) les instructions de vote (approbation, refus, abstention) pour chaque point de l'agenda. Afin d'être pris en compte, les originaux ou copies électroniques des bulletins de vote doivent être reçus par la Société dans un délai décidé par le Conseil ou, en l'absence d'un délai prévu par le Conseil, au moins 72 (soixante-douze) heures avant l'Assemblée Générale en question.
Le Conseil pourra autoriser les Actionnaires à exercer, conformément à l'article 6 de la loi du 24 mai 2011 sur les droits des actionnaires dans les sociétés côtés, leurs droits de vote et participer à une Assemblée Générale par le biais de moyens électroniques, en s'assurant notamment que tout ou partie des formes suivantes de participations soient respectées:
a)Une transmission en temps réel de l'Assemblée Générale;
b)Une communication réciproque permettant aux Actionnaires de s'adresser à l'Assemblée Générale à distance; et
c)Un mécanisme de vote, soit avant ou pendant l'Assemblée Générale, ne nécessitant pas la nomination d'un mandataire physiquement présent à l'Assemblée Générale.
Tout Actionnaire participant à une Assemblée Générale par ces moyens sera considéré présent au lieu de l'Assemblée Générale pour les besoins de quorum et de majorité. L'utilisation de moyens électroniques permettant aux Actionnaires de participer à l'Assemblée Générale pourront être soumis seulement à ces exigences car elles sont nécessaires pour assurer l'identification des Actionnaires et la sécurité de la communication électronique, et seulement dans la mesure où ils sont proportionnels pour atteindre cet objectif.
Le Conseil pourra déterminer les moyens électroniques référencés ci-dessus à l'article 21 paragraphe 5 et toutes les autres conditions qui devront être remplies afin de participer à l'Assemblée Générale conformément au droit luxembourgeois.
Les Actionnaires auront à chaque Assemblée Générale droit à un vote pour chaque action.
Aucun quorum n'est exigé pour une réunion de l'Assemblée Générale et les résolutions sont adoptées à une telle Assemblée Générale à la majorité simple des voix. Sauf disposition contraire de la
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Loi, une Assemblée Générale extraordinaire convoquée pour modifier toute disposition des Statuts ou pour le retrait des actions de la Société de la cotation dans une transaction de retrait de marché ne délibèrera pas valablement à moins qu'au moins la moitié du capital social ne soit représenté et que l'ordre du jour indique les modifications des Statuts proposées. Si la première de ces conditions n'est pas remplie, une deuxième Assemblée Générale extraordinaire peut être convoquée, de la manière prescrite par les Statuts ou la Loi. La deuxième Assemblée Générale extraordinaire délibèrera valablement indépendamment de la proportion du capital représentée. A l'occasion de ces deux Assemblées Générales extraordinaires, les résolutions, afin d'être valables, doivent être adoptées à la majorité des deux-tiers des votes exprimés. Les copies ou extraits des minutes des Assemblées Générales à produire devant la Cour seront signées par le président ou par deux Administrateurs.
CHAPITRE V. - ANNEE SOCIALE, REPARTITION DES BENEFICES
Article 22. Année sociale.
L'année sociale de la Société commence le premier janvier et finit le dernier jour de décembre de chaque année sauf la première année sociale qui commence à la date de constitution de la Société et finit le dernier jour de décembre 1992.
Le Conseil prépare les comptes annuels suivant les dispositions de la Loi et les pratiques comptables.
Article 23. Affectation des bénéfices.
Sur les bénéfices nets de la Société, il sera prélevé cinq pour cent (5%) pour la formation d'un fonds de réserve légale requis par la Loi. Ce prélèvement cesse d'être obligatoire lorsque et aussi longtemps que la réserve légale atteindra dix pour cent (10%) de la totalité de la valeur nominale du capital social émis de la Société.
Sur recommandation du Conseil, l'Assemblée Générale décidera de l'affection du solde des bénéfices annuels nets. Elle peut décider de verser la totalité ou une partie du solde à un compte de réserve ou de provision, de le reporter à nouveau au prochain exercice social ou de le distribuer aux Actionnaires comme dividendes.
Le Conseil peut procéder à un versement d'acomptes sur dividendes dans les conditions fixées par la Loi. Il déterminera le montant ainsi que la date de paiement de ces acomptes.
Des dividendes peuvent être distribués à partir des profits nets non distribués reportés en avant des années précédentes. Les dividendes seront payés en dollars des États-Unis d'Amérique ou par distribution gratuite d'actions de la Société ou autrement en nature tel que déterminé par les Administrateurs, et peuvent être payés aux dates arrêtées par le Conseil. Le paiement de dividendes sera fait aux Actionnaires à leur adresse indiquée dans le registre des Actionnaires. Aucun intérêt ne sera dû par la société sur des dividendes déclarés mais non réclamés.
Les Actionnaires ont le droit de participer au profit de la société proportionnellement au montant libéré de valeur nominale de leurs actions.
CHAPITRE VI. - DISSOLUTION, LIQUIDATION.
Article 24. Dissolution, liquidation.
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
statuts coordonnés de "MILLICOM INTERNATIONAL CELLULAR S.A." - 21 | P a g e
La Société peut être dissoute par décision prise lors d'une Assemblée Générale statuant aux mêmes conditions de présence et de majorité que celles requises par l'article 20 des Statuts.
Lors de la dissolution de la Société, la liquidation s'effectuera par les soins d'un ou de plusieurs liquidateurs nommés par l'Assemblée Générale qui déterminera leurs pouvoirs et leurs émoluments.
Les actions comportent un droit au remboursement (à partir des avoirs disponibles pour la distribution aux Actionnaires) du montant du capital nominal libéré de ces actions et le droit de partager les avoirs supplémentaires dans le cadre d'une liquidation de la Société proportionnellement au montant libéré de la valeur nominale de ces actions.
CHAPITRE VII. - LOI APPLICABLE.
Article 25. Loi applicable.
Toutes les matières qui ne sont pas régies par les présents Statuts seront réglées conformément à la Loi.
Junglinster, February 28, 2022 On behalf of the Company: Me Danielle KOLBACH (notary) | Junglinster, le 28 février 2022 Pour le compte de la Société: Maître Danielle KOLBACH (notaire) | ||||
Maître Danielle KOLBACH, notaire à Junglinster (Grand-Duché de Luxembourg)
DESCRIPTION OF COMMON SHARES
The following is a description of the common shares of Millicom International Cellular S.A. (the “Company,” “we,” “us,” “our” and “MIC S.A.”). Such description does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all of the provisions of our articles of association.
Registration and Object
Millicom International Cellular S.A. is a public limited liability company (société anonyme) governed by the Luxembourg law of August 10, 1915 on Commercial Companies (as amended), incorporated on June 16, 1992, and registered with the Luxembourg Trade and Companies’ Register (Registre du Commerce et des Sociétés de Luxembourg) under number B 40.630.
The articles of association of MIC S.A., as amended and restated (the “Articles of Association”) define its purpose inter alia as follows: “... to engage in all transactions pertaining directly or indirectly to the acquisition and holding of participating interests, in any form whatsoever, in any Luxembourg or foreign business enterprise, including but not limited to, the administration, management, control and development of any such enterprise”. At the extraordinary general meeting of shareholders held on January 7, 2019, the shareholders approved an amendment to article 7 of the Articles of Association to stipulate that the Nomination Committee rules and procedures of the Swedish Code of Corporate Governance will apply to the election of directors to MIC S.A.’s Board of Directors. On February 28, 2022, the shareholders approved an amendment to article 5, paragraphs 1 and 4 of the Articles of Association to reflect an authorized share capital increase.
Common Shares
As of February 28, 2022, the Company’s authorized and registered share capital comprised 200,000,000 common shares.
Directors
Restrictions on Voting
If a director has a personal material interest in a proposal, arrangement or contract to be decided by MIC S.A., the Articles of Association provide that the validity of the decision of MIC S.A. is not affected by a conflict of interest existing with respect to a director. However, any such personal interest must be disclosed to the Board of Directors ahead of the vote and the relevant director shall abstain from considering and voting on the relevant issue. Such conflict of interest must be reported to the next general meeting of shareholders.
Compensation and Nomination
The decision on annual remuneration of directors is reserved by the Articles of Association to the general meeting of shareholders. Directors are therefore prevented from voting on their own compensation. However, directors may vote on the number of shares they own, including the shares allotted under any share-based compensation scheme.
The Nomination Committee makes recommendations for the election of directors to the annual general meeting of shareholders (the “AGM”). At the AGM, shareholders may vote for or
against the directors proposed or may abstain. The Nomination Committee reviews and recommends the directors’ fees which are approved by the shareholders at the AGM.
In proposing persons to be elected as directors at the AGM, the Company must
comply with the nomination committee rules of the Swedish Code of Corporate
Governance, so long as such compliance does not conflict with applicable mandatory law
or regulation or the mandatory rules of any stock exchange on which the Company’s
shares are listed. In the event that the Company does not comply with the nomination
committee rules of the Swedish Code of Corporate Governance and a committee of the
Board of Directors is established to propose persons to be elected as directors at the AGM, any
Shareholder holding at least 20% of the issued and outstanding shares of the Company,
excluding treasury shares, has the right to designate: (1) one of the then-serving directors
to be a member of such committee, so long as such designation and the director so
designated meet the requirements of any applicable mandatory law or regulation or the
mandatory rules of any stock exchange on which the Company’s shares are listed, and (2)
one person, who may or may not be a director, to attend any meeting of such committee
as an observer, without the right to vote at such meeting, so long as such attendance does
not conflict with applicable mandatory law or regulation or the mandatory rules of any
stock exchange on which the Company’s shares are listed. Any designation made
pursuant to this provision lapses upon such designating Shareholder holding less than
20% of the issued and outstanding shares of the Company, excluding treasury shares.
Borrowing Powers
The Board of Directors generally has unrestricted borrowing powers on behalf of and for the benefit of MIC S.A.
Age Limit
There is no age limit for being a director of MIC S.A. Directors could be elected for a maximum period of six years, but the Company has followed the practice of electing them annually at the AGM.
Share Ownership Requirements
Directors need not be shareholders in MIC S.A.
Shares
Rights Attached to the Shares
MIC S.A. has only one class of shares, common shares, and each share entitles its holder to:
•one vote at the general meeting of shareholders,
•receive dividends when such distributions are decided, and
•share in any surplus left after the payment of all the creditors in the event of liquidation. There is a preferential subscription right pursuant to Luxembourg corporate law under any share or rights issue for cash, unless the Board of Directors, within the limits specified in the Articles of Association, or an extraordinary general meeting of shareholders, as the case may be, restricts the exercise thereof.
Redemption of Shares
The Articles of Association provide for the possibility and set out the terms for the repurchase by MIC S.A. of its own shares, which repurchase must be approved in accordance with applicable law and the rules of any exchange on which MIC S.A.’s shares are listed.
Sinking Funds
MIC S.A. shares are not subject to any sinking fund.
Liability for Further Capital Calls
All of the issued shares in MIC S.A.’s capital are fully paid up. Accordingly, none of MIC S.A.’s shareholders are liable for further capital calls.
Principal Shareholder Restrictions
There are no provisions in the Articles of Association that discriminate against any existing or prospective holder of MIC S.A.’s shares as a result of such shareholder owning a substantial number of shares.
Changes to Shareholder’s Rights
In order to change the rights attached to the shares of MIC S.A., an extraordinary general meeting of shareholders must be duly convened and held before a Luxembourg notary, as under Luxembourg law such change requires an amendment of the Articles of Association. A quorum of presence of at least 50% of the shares present or represented is required at a meeting held after the first convening notice. If such quorum is not met after the first convening notice, there is no quorum of presence requirement at the meeting held after the second convening notice. Any decision must be taken by a majority of two thirds of the votes cast at the general meeting. Any change to the obligations attached to shares may be adopted only with the unanimous consent of all shareholders.
Shareholders’ Meetings
General meetings of shareholders are convened by convening notice published in the Luxembourg Official Gazette (Journal des Publications, Recueil Electronique des Sociétés et Associations), in a Luxembourg newspaper, in short version in the Swedish newspaper SvD, as a press release and on the Millicom website. According to article 18 of the Articles of Association of MIC S.A., the Board of Directors determines in the convening notice the formalities to be observed by each shareholder for admission to the AGM. An AGM must be convened every year within six months of the end of the financial year, at the registered office of the Company or any other place in Luxembourg as may be specified in the convening notice. Other meetings can be convened as necessary.
Limitation on Securities Ownership
There are no limitations imposed under Luxembourg law or the Articles of Association on the rights of non-resident or foreign entities to own shares of the Company or to hold or exercise voting rights on shares of the Company.
Change of Control
There are no provisions in the Articles of Association of the Company that would have the effect of delaying, deferring or preventing a change in control of MIC S.A. and that would
operate only with respect to a merger, acquisition or corporate restructuring involving the Company, or any of its subsidiaries.
Luxembourg laws impose the mandatory disclosure of an important participation in Millicom and any change in such participation.
Disclosure of Shareholder Ownership
As required by the Luxembourg law on transparency obligations of January 11, 2008, as amended (the “Transparency Law”), a shareholder who acquires or disposes of shares, including depositary receipts representing shares in the Company’s capital must notify the Company and the Commission de Surveillance du Secteur Financier of the proportion of shares held by the relevant person as a result of the acquisition or disposal, where that proportion reaches, exceeds or falls below the thresholds referred to in the Transparency Law. As per the Transparency Law, the above also applies to the mere entitlement to acquire or to dispose of, or to exercise, voting rights in any of the cases referred to in the Transparency Law.
Execution Version $2,150,000,000 BRIDGE LOAN AGREEMENT dated as of November 10, 2021 among MILLICOM INTERNATIONAL CELLULAR S.A., as Borrower, THE LENDERS NAMED HEREIN, as Lenders, JPMORGAN CHASE BANK, N.A., as Administrative Agent, and GOLDMAN SACHS BANK USA J.P. MORGAN AG and MORGAN STANLEY SENIOR FUNDING, INC., as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS Page -i- ARTICLE I DEFINITIONS ........................................................................................................................ 1 Section 1.01 Defined Terms ................................................................................................ 1 Section 1.02 Terms Generally ........................................................................................... 37 Section 1.03 Accounting Terms; IFRS ............................................................................. 38 Section 1.04 Rounding ...................................................................................................... 38 Section 1.05 Time of Day ................................................................................................. 38 Section 1.06 Currency Equivalents ................................................................................... 38 Section 1.07 LIBOR Notification ...................................................................................... 38 Section 1.08 Cashless Roll ................................................................................................ 39 Section 1.09 Luxembourg Terms ...................................................................................... 39 ARTICLE II THE LOANS ........................................................................................................................ 39 Section 2.01 Commitments ............................................................................................... 39 Section 2.02 Loans and Borrowings ................................................................................. 39 Section 2.03 Reserved ....................................................................................................... 40 Section 2.04 Funding of Borrowing. ................................................................................. 40 Section 2.05 Termination of Commitments ...................................................................... 41 Section 2.06 Reserved. ...................................................................................................... 41 Section 2.07 Repayment of Loans; Evidence of Debt. ...................................................... 41 Section 2.08 Prepayment of Loans. ................................................................................... 41 Section 2.09 Interest. ......................................................................................................... 42 Section 2.10 Alternate Rate of Interest; Inability to Determine Rates .............................. 43 Section 2.11 Increased Costs ............................................................................................. 43 Section 2.12 Break Funding Payments ............................................................................. 45 Section 2.13 Payments Free of Taxes. .............................................................................. 45 Section 2.14 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. ................... 49 Section 2.15 Mitigation Obligations; Replacement of Lenders. ....................................... 50 Section 2.16 Defaulting Lenders. ...................................................................................... 51 Section 2.17 Effect of Benchmark Transition Event. ........................................................ 52 Section 2.18 Illegality. ...................................................................................................... 56 Section 2.19 Financial Calculations for Limited Condition Transactions. ....................... 56 Section 2.20 Extension of Maturity Date. ......................................................................... 57 ARTICLE III REPRESENTATIONS AND WARRANTIES ................................................................... 58
TABLE OF CONTENTS (continued) Page -ii- Section 3.01 Organization; Powers ................................................................................... 58 Section 3.02 Power and Authority; Enforceability ........................................................... 58 Section 3.03 Validity and Admissibility into Evidence .................................................... 58 Section 3.04 Non-Conflict with Other Obligations ........................................................... 58 Section 3.05 Financial Statements; No Material Adverse Change.................................... 58 Section 3.06 Properties; Intellectual Property. .................................................................. 58 Section 3.07 Litigation. ..................................................................................................... 59 Section 3.08 Compliance with Laws; Environmental Compliance; No Default or Event of Default. .......................................................................................... 59 Section 3.09 Investment Company Status ......................................................................... 60 Section 3.10 Taxes ............................................................................................................ 60 Section 3.11 ERISA .......................................................................................................... 60 Section 3.12 No Misleading Information .......................................................................... 60 Section 3.13 Sanctions Laws; Anti-Corruption, Anti-Bribery, Anti-Money Laundering Laws and Regulations. .............................................................. 61 Section 3.14 Federal Reserve Board Regulations ............................................................. 61 Section 3.15 Solvency ....................................................................................................... 62 Section 3.16 Centre of Main Interest and Establishment .................................................. 62 Section 3.17 Governing Law and Enforcement ................................................................ 62 Section 3.18 Pari Passu Ranking ....................................................................................... 62 Section 3.19 Acquisition Arrangements ............................................................................ 62 ARTICLE IV CONDITIONS PRECEDENT ............................................................................................ 62 Section 4.01 Conditions Precedent to the Closing Date .................................................... 62 ARTICLE V AFFIRMATIVE COVENANTS .......................................................................................... 64 Section 5.01 Financial Statements; and Other Information .............................................. 64 Section 5.02 Notices of Material Events ........................................................................... 65 Section 5.03 Existence; Conduct of Business; Authorizations. ........................................ 65 Section 5.04 Payment of Material Obligations ................................................................. 66 Section 5.05 Maintenance of Properties; Insurance. ......................................................... 66 Section 5.06 Books and Records; Inspection Rights ......................................................... 66 Section 5.07 Compliance with Laws. ................................................................................ 67 Section 5.08 Environmental Compliance. ......................................................................... 67 Section 5.09 Use of Proceeds. ........................................................................................... 67
TABLE OF CONTENTS (continued) Page -iii- Section 5.10 Pari Passu Ranking ....................................................................................... 67 Section 5.11 Centre of Main Interest and Establishment. ................................................. 67 Section 5.12 Legal Fees. ................................................... Error! Bookmark not defined. ARTICLE VI NEGATIVE COVENANTS ............................................................................................... 68 Section 6.01 Fundamental Changes, Asset Dispositions .................................................. 68 Section 6.02 Liens ............................................................................................................. 68 Section 6.03 Transactions with Affiliates ......................................................................... 68 Section 6.04 Sanctions Laws; Anti-Money Laundering Laws. ......................................... 68 Section 6.05 Restricted Payments ..................................................................................... 68 Section 6.06 Anti-Corruption Law. ................................................................................... 68 Section 6.07 Unrestricted Subsidiaries. ............................................................................. 69 Section 6.08 Total Net Leverage Ratio. ............................................................................ 69 ARTICLE VII EVENTS OF DEFAULT ................................................................................................... 69 Section 7.01 Events of Default. ......................................................................................... 69 Section 7.02 Distribution of Payments after Event of Default .......................................... 71 ARTICLE VIII THE ADMINISTRATIVE AGENT ................................................................................ 72 ARTICLE IX ERRONEOUS PAYMENTS .............................................................................................. 75 Section 9.01 Erroneous Payments. .................................................................................... 75 ARTICLE X MISCELLANEOUS............................................................................................................. 77 Section 10.01 Notices .......................................................................................................... 77 Section 10.02 Waivers; Amendments ................................................................................. 78 Section 10.03 Expenses; Indemnity; Damage Waiver ........................................................ 80 Section 10.04 Successors and Assigns. ............................................................................... 81 Section 10.05 Survival ........................................................................................................ 85 Section 10.06 Counterparts; Integration; Effectiveness; Electronic Execution .................. 85 Section 10.07 Severability................................................................................................... 86 Section 10.08 Right of Setoff .............................................................................................. 86 Section 10.09 Governing Law; Jurisdiction; Consent to Service of Process. ..................... 86 Section 10.10 WAIVER OF JURY TRIAL ........................................................................ 87 Section 10.11 Headings ....................................................................................................... 87 Section 10.12 Confidentiality .............................................................................................. 87 Section 10.13 Material Non-Public Information. ................................................................ 88
TABLE OF CONTENTS (continued) Page -iv- Section 10.14 Interest Rate Limitation ................................................................................ 89 Section 10.15 Judgment Currency. ..................................................................................... 89 Section 10.16 Waiver of Immunity ..................................................................................... 90 Section 10.17 USA PATRIOT Act ..................................................................................... 90 Section 10.18 No Advisory or Fiduciary Responsibility .................................................... 90 Section 10.19 Acknowledgment and Consent to Bail-In of Affected Financial Institutions .................................................................................................... 91 Section 10.20 Electronic Execution of Assignments and Certain Other Documents .......... 91
SCHEDULES: Schedule I - Initial Lenders and Commitments Schedule II - Administrative Agent's Office, Certain Addresses for Notices EXHIBITS: Exhibit A - Form of Assignment and Assumption Exhibit B - Form of Compliance Certificate Exhibit C - Form of Borrowing Request
This BRIDGE LOAN AGREEMENT (this “Agreement”) is entered into as of November 10, 2021 among Millicom International Cellular S.A., a limited liability company (société anonyme), organized and existing under the laws of Luxembourg, having its registered office at 2, rue du Fort-Bourbon, L-1249 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B40630 (the “Borrower”), the Lenders from time to time party hereto, and JPMorgan Chase Bank, N.A., as the Administrative Agent (each, as defined below). The parties hereto agree as follows: ARTICLE I DEFINITIONS Section 1.01 Defined Terms. As used in this Agreement, the following terms have the meanings specified below: “ABR” when used in reference to any Loan, refers to whether such Loan, is bearing interest at a rate determined by reference to the Alternate Base Rate. “Acquired Debt” means Debt of any Person: (a) incurred and outstanding on the date on which such Person (i) was acquired by any member of the Restricted Group or (ii) is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) any member of the Restricted Group; or (b) incurred to provide all or part of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Subsidiary of any member of the Restricted Group or was otherwise acquired by any member of the Restricted Group. Acquired Debt shall be deemed to have been incurred, with respect to clause (a), on the date such Person becomes a Subsidiary of any member of the Restricted Group and, with respect to clause (b), on the date of consummation of such acquisition of assets. “Acquisition” means the acquisition by the Borrower, directly or indirectly, of the Target Shares on the terms of the Acquisition Documents. “Acquisition Agreement” means the Share Purchase Agreement, to be dated on or around November 12, 2021, by and among Miffin Associates Corp., as seller, and the Purchasers, in relation to the purchase of the Target Shares. “Acquisition Costs” means all fees, costs and expenses, stamp, registration and other Taxes incurred by the Borrower or any other member of the Group in connection with the Acquisition or the Acquisition Documents. “Acquisition Closing Date” means the date on which the cash consideration is due to the owners of the Target Shares pursuant to the Acquisition Agreement. “Acquisition Documents” means the Acquisition Agreement and any other document designated as an "Acquisition Document" by the Administrative Agent and the Borrower. “Adjusted LIBO Rate” means the rate of interest obtained by dividing (i) the rate of interest per annum determined on the basis of the rate appearing on the applicable Bloomberg page (or such other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time) for deposits in Dollars for a period equal to the applicable Interest Period published by the ICE Benchmark Administration Limited, a United Kingdom company, at approximately 11:00 a.m. (London time) two (2) Business Days prior to the first day of the applicable Interest Period by (ii) a
2 percentage equal to 1 minus the stated maximum rate (stated as a decimal) of all reserves, if any, required to be maintained with respect to Eurocurrency funding (currently referred to as “Eurocurrency liabilities”) as specified in Regulation D of the Board of Governors of the Federal Reserve System (or against any other category of liabilities which includes deposits by reference to which the interest rate on Dollar-denominated loans is determined or any applicable category of extensions of credit or other assets which includes loans by an office of any Lender outside of the United States of America). Subject to Section 2.17, if, for any reason, the rate referred to in the preceding clause (i) is not published on the applicable Bloomberg page (or such other commercially available source providing quotations of LIBOR as may be designated by the Administrative Agent from time to time), then the rate to be used for such clause (i) shall be reasonably determined by the Administrative Agent in good faith from another recognized source or interbank quotation comparable to those currently provided on such page at approximately 11:00 a.m. (London time) two Business Days prior to the first day of the applicable Interest Period for a period equal to such Interest Period. Any change in the maximum rate or reserves described in the preceding clause (ii) shall result in a change in the Adjusted LIBO Rate on the date on which such change in such maximum rate becomes effective. If the Adjusted LIBO Rate determined as provided hereinabove would be less than zero, the Adjusted LIBO Rate shall be deemed to be zero. “Administrative Agent” means JP Morgan Chase Bank, N.A., in its capacity as administrative agent for the Lenders hereunder, and any successor thereto appointed pursuant to Article VIII. “Administrative Agent Fee Letter” means the fee letter, to be dated as of the date hereof, between the Borrower and the Administrative Agent. “Administrative Questionnaire” means an administrative questionnaire in a form supplied by the Administrative Agent. “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any UK Financial Institution. “Affiliate” means, with respect to a specified Person, another Person that directly, or indirectly through one or more intermediaries, Controls or is Controlled by or is under common Control with the Person specified. “Agent Party” has the meaning assigned to such term in Section 10.01(d)(ii). “Agreement” has the meaning assigned to such term in the first paragraph of this Agreement. “Alternate Base Rate” means, for any day, the interest rate per annum equal to the greatest of (a) the Prime Rate in effect on such day, (b) the Federal Funds Effective Rate in effect on such day plus 0.50% per annum and (c) the LIBOR Market Index Rate (provided that this clause (c) shall not be applicable during any period in which the LIBOR Market Index Rate is unavailable or unascertainable) on such day plus 1.0% per annum. Any change in the Alternate Base Rate due to a change in the Prime Rate, the Federal Funds Effective Rate or LIBOR Market Index Rate shall be effective from and including the effective date of such change in the Prime Rate, the Federal Funds Effective Rate or such LIBOR Market Index Rate, respectively. If the Alternate Base Rate determined as provided hereinabove would be less than 1.0% per annum, the Alternate Base Rate shall be deemed to be 1.0% per annum. “Annual Report” means the Millicom Annual Report for 2020.
3 “Anti-Corruption Laws” means any applicable anti-bribery or anti-corruption Laws, including without limitation the U.S. Foreign Corrupt Practice Act of 1977, the UK Bribery Act 2010 and the Canadian Corruption of Foreign Public Officials Act. “Anti-Money Laundering Laws” means any applicable anti-money laundering Laws, including without limitation, the Bank Secrecy Act of 1970, the USA PATRIOT Act of 2001 and the Proceeds of Crime (Money Laundering) and Terrorism Financing Act of 2001, as amended. “Applicable Margin” means, for each of the Interest Periods indicated, the following percentages: Period % per annum From the Closing Date until (and including) the first Interest Payment Date .................................................................................... 1.50% From the day immediately following the first Interest Payment Date until (but including) the second Interest Payment Date .................... 2.00% From the day immediately following the second Interest Payment Date until (but including) the third Interest Payment Date ............... 2.50% From the day immediately following the third Interest Payment Date until the payment in full of all the Obligations under this Agreement ......................................................................................... 3.00% “Applicable Percentage” means, with respect to any Lender, the percentage of the total Commitments represented by such Lender’s Commitment. If the Commitments have terminated or expired, the Applicable Percentages shall be determined based upon the Commitments most recently in effect, giving effect to any assignments. “Asset Disposition” means any transfer, conveyance, sale, lease or other disposition by any member of the Restricted Group (including a consolidation or merger or other sale of any Restricted Subsidiary with, into or to another Person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary to the Borrower or to any Restricted Subsidiary which is an eighty percent (80%) or more owned Restricted Subsidiary) of (i) shares of Capital Stock (other than directors’ qualifying shares and shares to be held by third parties to satisfy applicable legal requirements) or other ownership interests of any Restricted Subsidiary, (ii) substantially all of the assets of any member of the Restricted Group representing a division or line of business or (iii) other assets or rights of any member of the Restricted Group outside of the ordinary course of business; provided that the term “Asset Disposition” shall not include Permitted Disposals. “Assignment and Assumption” means an assignment and assumption entered into by a Lender and an assignee (with the consent of any party whose consent is required by Section 10.04), and accepted by the Administrative Agent, in the form of Exhibit A or any other form approved by the Administrative Agent. “Authorized Officer” means any of the Chief Executive Officer, President, Chief Operating Officer, Executive Vice President, Senior Vice President, Vice President, Financial Officer or General Counsel of the Borrower. “Availability Period” means the period from and including the Signing Date through and including the day that is three (3) Business Days following the Signing Date. “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the applicable Resolution Authority in respect of any liability of an Affected Financial Institution.
4 “Bail-In Legislation” means (a) with respect to any EEA Member Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or its affiliates (other than through liquidation, administration or other insolvency proceedings). “Bankruptcy Code” means Title 11 of the United States Code entitled “Bankruptcy,” as now and hereafter in effect, and any successor statute. “Bankruptcy Event” means, with respect to any Lender, such Lender or its direct or indirect parent company becomes the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, custodian, assignee for the benefit of creditors or similar Person charged with the reorganization or liquidation of its business appointed for it, or, in the good faith determination of the Administrative Agent, has taken any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any such proceeding or appointment, provided that a Bankruptcy Event shall not result solely by virtue of any ownership interest, or the acquisition of any ownership interest, in such Person by a Governmental Authority or instrumentality thereof so long as such ownership interest does not result in or provide such Person with immunity from the jurisdiction of courts within the United States or the European Union from the enforcement of judgments or writs of attachment on its assets or permit such Person (or such Governmental Authority or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made by such Person. “Basel III” means: (a) the agreements on capital requirements, a leverage ratio and liquidity standards contained in “Basel III: A global regulatory framework for more resilient banks and banking systems”, “Basel III: International framework for liquidity risk measurement, standards and monitoring” and “Guidance for national authorities operating the countercyclical capital buffer” published by the Basel Committee on Banking Supervision in December 2010, each as amended, supplemented or restated; (b) the rules for global systemically important banks contained in “Global systemically important banks: assessment methodology and the additional loss absorbency requirement - Rules text” published by the Basel Committee on Banking Supervision in November 2011, as amended, supplemented or restated; and (c) any further guidance or standards published by the Basel Committee on Banking Supervision relating to “Basel III”. “Beneficial Ownership Certification” means a certification regarding beneficial ownership as required by the Beneficial Ownership Regulation. “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230. “Board” means the Board of Governors of the Federal Reserve System of the United States of America. “Borrower Materials” has the meaning assigned to such term in Section 10.01(e).
5 “Borrowing” means the borrowing of the Loans on the Closing Date. “Borrowing Request” has the meaning assigned to such term in Section 2.04(a). “Business Day” means any day that is not a Saturday, Sunday or other day on which commercial banks in New York City, London, Luxembourg or Stockholm are authorized or required by law to remain closed. “Capital Lease Obligation” of any Person means the obligation to pay rent or other payment amounts under a lease of real or personal property of such Person which is required to be classified and accounted for as a capital lease on the balance sheet of such Person in accordance with IFRS. The stated maturity of such obligation shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of such obligation shall be the capitalized amount thereof that would appear on the balance sheet of such Person in accordance with IFRS. “Capital Stock” of any Person means any and all shares, interests, participation or other equivalents (however designated) of corporate stock or other equity participation, including partnership interests, whether general or limited, of such Person. “Cash Equivalents” means, with respect to any Person: (a) any direct obligations of, or obligations guaranteed by, the United States of America (or by any agency thereof), the United Kingdom or any member of the European Union to the extent such obligations or guarantees are backed by the full faith and credit of the United States, the United Kingdom or such member of the European Union and which have a remaining Weighted Average Life-to-Maturity of not more than one (1) year from the date of investment therein; (b) (i) term deposit accounts (excluding current and demand deposits), certificates of deposit, time deposits, money market deposits and bankers’ acceptances, in each case, issued by or held with (A) any Lender, (B) any of the lenders under the MICSA Revolving Facility Agreement, or (C) any bank or trust company which is organized under the laws of the United States of America, any state thereof, the United Kingdom, Switzerland, Canada, Australia or any member state of the European Union, which bank or trust company has capital, surplus and undivided profits aggregating in excess of $100,000,000 (or the equivalent in other currencies) and has outstanding debt which is rated no less than Investment Grade or higher by at least one Rating Agency; and (ii) money market funds rated at least AAA by at least one Rating Agency or managed by any Lender or any lender under the MICSA Revolving Facility Agreement; (c) repurchase obligations with a term of not more than seven (7) days for underlying securities of the types described in paragraph (a) entered into with any financial institution meeting the qualifications specified in paragraphs (b)(i) or (ii) above; (d) commercial paper having one of the two highest ratings obtainable from any of the Rating Agencies and in each case maturing within 365 days after the date of acquisition; (e) money market funds at least ninety-five percent (95%) of the assets of which constitute Cash Equivalents of the types described in paragraphs (a) through (d) of this definition;
6 (f) with respect to any Person organized under the laws of, or having its principal business operations in, a jurisdiction outside the United States, the United Kingdom or the European Union, those investments that are of the same type as investments in clauses (a), (c) and (d) of this definition except that the obligor thereon is organized under the laws of the country (or any political subdivision thereof) in which such Person is organized or conducting business; and (g) up to $100,000,000 (or the equivalent in other currencies) in the aggregate of term deposit accounts and overnight deposits of cash or deposits of any other legal tender held by such Person in countries where any member of the Restricted Group operates its business in accordance with this Agreement. “CBIR” has the meaning assigned to such term in section 3.16. “Change in Law” the occurrence after the date of this Agreement (or, with respect to any Lender, such later date on which such Lender becomes a party to this Agreement) of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the interpretation or application thereof by any Governmental Authority or (c) compliance by any Lender (or, for purposes of Section 2.11(b), by any Lending Office of such Lender or by such Lender’s holding company, if any) with any request, guideline or directive (whether or not having the force of law) of any Governmental Authority made or issued after the date of this Agreement; provided that, notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated, introduced or implemented by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III or CRD IV, or any law or regulation that implements or applies Basel III or CRD IV, shall be deemed to be a “Change in Law”, regardless of the date enacted, adopted or issued. “Change of Control” means the occurrence of any of the following events: (a) any Person becomes the Beneficial Owner, directly or indirectly, of more than fifty percent (50%) of the Voting Stock of the Borrower, measured by voting power rather than number of shares; (b) the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Borrower and its Subsidiaries taken as a whole to any Person; or (c) a plan relating to the liquidation or dissolution of the Borrower is adopted. For purposes of this definition, “Person” shall include a group of Persons acting in concert and each of “Beneficial Owner” and “group” shall have the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have beneficial ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. “Closing Date” means the date on which the Loans are made to the Borrower hereunder.
7 “Code” means, at any date, the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date. “Comcel Group” means TIGO, Comunicaciones Celulares, S.A. and its sister companies jointly owned prior to the Closing Date by the Group and the Seller, and any Subsidiary of any such entity. “Commitment” means, with respect to each Lender, the commitment of such Lender to make the Loans on the Closing Date. The initial amount of each Lender’s Commitment is set forth on Schedule I. “Communications” has the meaning assigned to such term in Section 10.01(d)(ii). “Compliance Certificate” has the meaning assigned to such term in Section 5.01(d). “Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes. “Consolidated EBITDA” means, for any period, operating profit of the Restricted Group for such period as such amount is determined on a consolidated basis in accordance with IFRS, plus the sum of the following amounts, in each case, without duplication (losses shall be added (as a positive number) and gains shall be deducted, in each case, to the extent such amounts were included in calculating operating profit of the Restricted Group): (a) depreciation and amortization expenses; (b) the net loss or gain on the disposal and impairment of assets; (c) share-based compensation expenses; (d) at the Borrower’s option, as the case may be, other non-cash charges reducing operating profit (provided that if any such non-cash charge represents an accrual of or reserve for potential cash charges in any future period, the cash payment in respect thereof in such future period shall reduce operating profit to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period) less other non-cash items of income increasing operating income (excluding any such non-cash item of income to the extent it represents (i) a receipt of cash payments in any future period, (ii) the reversal of an accrual or reserve for a potential cash item that reduced operating income in any prior period and (iii) any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase operating income in such prior period); (e) any material extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge, including any charges or reserves in respect of any restructuring, redundancy, relocation, refinancing, integration or severance or other postemployment arrangements, signing, retention or completion bonuses, transaction costs, acquisition costs, disposition costs, business optimization, information technology implementation or development costs, costs related to governmental investigations and curtailments or modifications to pension or postretirement benefits schemes, litigation or any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events); (f) at the Borrower’s option, as the case may be, the effects of adjustments in its consolidated financial statements pursuant to IFRS (including inventory, property, equipment, software,
8 goodwill, intangible assets, in process research and development, deferred revenue and debt line items) attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated acquisition or joint venture investment or the amortization or write-off or write-down of amounts thereof, net of taxes; (g) any reasonable expenses, charges or other costs related to any sale or offering of Capital Stock (other than Redeemable Stock), investment, acquisition, disposition, recapitalization or the incurrence of any Debt, in each case, as determined in good faith by a responsible financial or accounting officer the Borrower; (h) any gains or losses on associates; (i) any unrealized gains or losses due to changes in the fair value of equity investments; (j) any unrealized gains or losses due to changes in the fair value of Interest Rate, Currency or Commodity Price Agreements; (k) any unrealized gains or losses due to changes in the carrying value of put options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, Joint Venture or associate; (l) any unrealized gains or losses due to changes in the carrying value of call options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, Joint Venture or associate; (m) any net foreign exchange gains or losses; (n) at the Borrower’s option, as the case may be, any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies; (o) accruals and reserves that are established or adjusted within twelve (12) months after the closing date of any acquisition that are so required to be established or adjusted as a result of such acquisition in accordance with IFRS; (p) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the relevant member of the Restricted Group, as the case may be, has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within three hundred sixty-five (365) days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable three hundred sixty-five (365)-day period); (q) the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets;
9 (r) any net gain (or loss) realized upon any Sale/Leaseback Transaction that is not sold or otherwise disposed of in the ordinary course of business, determined in good faith by a responsible financial or accounting officer of the Borrower; (s) the amount of loss on the sale or transfer of any assets in connection with an asset securitization program, receivables factoring transaction or other receivables transaction (including, without limitation, a Qualified Receivables Transaction); and (t) Specified Legal Expenses. For the purposes of calculating Consolidated EBITDA for any period, as of such date of determination: (i) if, since the beginning of such period any member of the Restricted Group has made any Asset Disposition or disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”) including any Sale occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period; (ii) if, since the beginning of such period any member of the Restricted Group (by merger or otherwise) will have made an investment in any Person that thereby becomes a member of the Restricted Group or otherwise acquires any company, any business, or any group of assets constituting an operating unit of a business (any such investment or acquisition, a “Purchase”), including any such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; (iii) if, since the beginning of such period, any Person (that became a member of the Restricted Group, as the case may be, was merged with or into any member of the Restricted Group, as the case may be, since the beginning of such period) will have made any Sale or any Purchase that would have required an adjustment pursuant to clauses (i) or (ii) above if made by any member of the Restricted Group, as the case may be, since the beginning of such period, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period, including anticipated synergies and cost savings as if such Sale or Purchase occurred on the first day of such period; (iv) whenever pro forma effect is applied, the pro forma calculations will be as determined in good faith by a responsible financial or accounting officer the Borrower (including in respect of anticipated synergies and cost savings) as though the full effect of such synergies and cost savings were realized on the first day of the relevant period and shall also include the reasonably anticipated full run rate cost savings effect (as calculated in good faith by a responsible financial or chief accounting officer of the Borrower) of cost savings programs that have been
10 initiated by any member of the Restricted Group, as the case may be, as though such cost savings programs had been fully implemented on the first day of such relevant period; and (v) for the purposes of determining the amount of Consolidated EBITDA under this definition denominated in a foreign currency, the Borrower may, at its option, calculate the equivalent in Dollars of such amount of Consolidated EBITDA based on either (i) the weighted average exchange rates for the relevant period used in the consolidated (if applicable) financial statements of the Borrower for such relevant period or (ii) the relevant currency exchange rate in effect on the date of execution of this Agreement. For the purpose of calculating Consolidated EBITDA, any Joint Venture Consolidated EBITDA shall be added to the amount determined in accordance with the foregoing. “Consolidated Net Debt” means, with respect to the Restricted Group, on any date of determination, the sum without duplication of (a) the total amount of Debt of the Restricted Group, on a consolidated basis in accordance with IFRS, minus (b) the sum without duplication of (i) all Debt outstanding under Minority Shareholder Loans, plus (ii) all Debt outstanding of the type described in clause (c) of the definition of “Permitted Debt,” plus (iii) all Debt outstanding of the type described in clause (p) of the definition of “Permitted Debt,” plus (iv) any Debt which is a contingent obligation of any member of the Restricted Group on such date, plus (v) the amount of cash and Cash Equivalents (other than cash or Cash Equivalents received from the incurrence of Debt by any member of the Restricted Group to the extent such cash or Cash Equivalents has not been subsequently applied or used for any purpose not prohibited by this Agreement) of the Restricted Group but excluding, for the avoidance of doubt, all Restricted Cash. “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “Controlled” have meanings correlative thereto. “CRD IV” means CRD IV EU and CRD IV UK. “CRD IV EU” means: (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012; and (b) Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC. “CRD IV UK” means: (a) Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 as it forms part of domestic law of the United Kingdom by virtue of the European Union (Withdrawal) Act 2018 (the “Withdrawal Act”);
11 (b) the law of the United Kingdom or any part of it, which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC and its implementing measures; and (c) direct EU legislation (as defined in the Withdrawal Act), which immediately before IP completion day (as defined in the European Union (Withdrawal Agreement) Act 2020) implemented CRD IV EU as it forms part of domestic law of the United Kingdom by virtue of the Withdrawal Act. “Credit Exposure” means, with respect to any Lender at any time, the outstanding principal amount of such Lender’s Loans at such time. “Credit Facilities” means, debt facilities, arrangements, instruments, trust deeds, note purchase agreements, indentures, purchase money financings, commercial paper facilities or overdraft facilities with banks or other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Debt, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended, in whole or in part from time to time, and in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including, but not limited to, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facilities” shall include any agreements or instruments (i) changing the maturity of any Debt incurred thereunder or contemplated thereby, (ii) adding subsidiaries of the Borrower as additional borrowers or guarantors thereunder, (iii) increasing the amount of Debt incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof. “Credit Party” means each of the Administrative Agent and any Lender, and the respective successors and assigns of each of the foregoing. “Debt” means (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent: (i) the principal of and premium, if any, in respect of every obligation of such Person for money borrowed; (ii) the principal of and premium, if any, in respect of every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person (but only to the extent such obligations are not reimbursed within thirty (30) days following receipt by such Person of a demand for reimbursement); and (iv) the principal component of every obligation of the type referred to in clauses (i) through (iii) of another Person and all dividends of another Person the payment of which, in either case, such Person has guaranteed or is responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise to the extent not otherwise included in the Debt of such Person. The “amount” or “principal amount” of Debt at any time of determination as used herein represented by (1) any Debt issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with IFRS, (2) any Redeemable Stock, shall be the maximum fixed redemption or repurchase price in respect thereof, and (3) any amount of Debt that has been cash- collateralized, to the extent so cash-collateralized, shall be excluded from any calculation of Debt. Notwithstanding anything else to the contrary, for all purposes under this Agreement, the amount of Debt
12 incurred, repaid, redeemed, repurchased or otherwise acquired by any Person shall equal the liability in respect thereof determined in accordance with IFRS and reflected on such Person’s consolidated (if applicable) statement of financial position (but only to the extent considered “Debt” hereunder taking into account the exclusions below). The term “Debt” shall not include: (a) obligations described in paragraphs (i), (ii) and (iv) of the first paragraph of this definition of Debt that are incurred by any Restricted Subsidiary (the “Proceeds Recipient”) and owed to a bank or other lending institution (the “On-Lend Bank”) to facilitate the substantially concurrent on-lending of proceeds (the “Proceeds On-Loan”) from Debt incurred by any member of the Restricted Group (other than the Proceeds Recipient) in compliance at all times with the Financial Covenant, to the extent (1) the principal obligations in respect of the Proceeds On-Loan are secured by security over cash granted in favor of the On-Lend Bank or any of its Affiliates in an amount not less than the principal amount of the Proceeds On-Loan, (2) the Proceeds On-Loan is put in place substantially concurrently with a loan by any member of the Restricted Group (other than the Proceeds Recipient) to the On-Lend Bank (the “On-Lend Bank Borrowing”) pursuant to which the Proceeds Recipient is entitled to reduce the principal amount of the Proceeds On-Loan by an amount equal to the principal amount of the On-Lend Bank Borrowing if a default or acceleration occurs with respect to such On-Lend Bank Borrowing, or (3) the substantial risks and rewards of the Proceeds On-Loan are transferred, using a synthetic instrument or any other arrangement or agreement, from the On-Lend Bank to any member of the Restricted Group (other than the Proceeds Recipient) in exchange for an amount not less than (x) the amount of cash granted in favor of the On-Lend Bank or any of its Affiliates, or (y) the outstanding amount of the On-Lend Bank Borrowing, as applicable, in each case as at the effective date of such transfer; (b) any liability of any member of the Restricted Group (other than the Proceeds Recipient) attributable to a synthetic instrument or any other arrangement or agreement described in clause (a)(3) above to the extent such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS and recorded as a current liability on such Person’s consolidated statement of financial position; (c) any Restricted MFS Cash; (d) any liability of any member of the Restricted Group attributable to a put option or similar instrument, arrangement or agreement entered into after the date hereof granted by such Person relating to an interest in any other entity, in each case to the extent such option has not been exercised or such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS, and recorded as a current liability on such Person’s consolidated statement of financial position; (e) any standby letter of credit, performance bond or surety bond or other similar third-party guaranty instrument provided by any member of the Restricted Group that is customary in a Related Business to the extent such letters of credit or bonds or instruments are not drawn upon or, if and to the extent drawn upon, are honored in accordance with its terms;
13 (f) solely for purposes of calculating the Total Net Leverage Ratio, any intercompany debt or other liability owing from any member of the Restricted Group to another member of the Restricted Group; (g) any deposits or prepayments received by any member of the Restricted Group from a customer or subscriber for its service and any other deferred or prepaid revenue; (h) any obligations to make payments in relation to earn outs; (i) Debt which is in the nature of equity (other than Redeemable Stock) or equity derivatives; (j) Capital Lease Obligations or operating leases; (k) Receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any debt in respect of Qualified Receivables Transactions, including without limitation guarantees by a Receivables Entity of the obligations of another Receivables Entity; (l) pension obligations or any obligation under employee plans or employment agreements; (m) any “parallel debt” obligations to the extent that such obligations mirror other Debt; (n) any payments or liability for assets acquired or services supplied deferred (including trade payables) in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied; (o) the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Redeemable Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (including, in each case, any accrued dividends); and (p) the net obligations of such Person under any Interest Rate, Currency or Commodity Price Agreement. Where Debt is denominated in a currency other than Dollars, the Borrower, may, at its option, calculate the equivalent in Dollars of such amount of Debt based on either (i) the weighted average exchange rates for the relevant period used in the consolidated (if applicable) financial statements of the Borrower, for such relevant period or (ii) the relevant currency exchange rate in effect on the date of execution of this Agreement; provided, that if the Borrower exercises the foregoing option at any time, it shall do so with respect to all (and not less than all) Debt outstanding at such time that is denominated in a currency other than Dollars. “Debtor Relief Laws” means the Bankruptcy Code, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief Laws of the United States, Luxembourg or other applicable jurisdictions from time to time in effect. “Default” means any event or condition which upon notice, lapse of time or both would, unless cured or waived, become an Event of Default.
14 “Defaulting Lender” means any Lender that (a) failed to (i) fund any portion of its Loans on the Closing Date (unless such Lender is disputing in good faith whether it is contractually obliged to fund), or (ii) pay over to any Credit Party any other amount required to be paid by it hereunder within two (2) Business Days of the date when due, or (b) has notified the Borrower or any Credit Party or has made a public statement to the effect that it does not intend or expect to comply with any of its funding obligations under this Agreement or any other agreements in which it commits to extend credit (unless such Lender is disputing in good faith whether it is contractually obliged to fund), or (c) has failed after request by a Credit Party or the Borrower, to provide a certification in writing from an authorized officer of such Lender that it will comply with its obligations (and is financially able to meet such obligations) to fund its Loans under this Agreement (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) is, or has a direct or indirect parent company that is, the subject of a (i) Proceeding under any Debtor Relief Law, (ii) Bankruptcy Event or (iii) Bail-In Action. Any determination by the Administrative Agent or a the Borrower that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender upon delivery of written notice of such determination to the Credit Parties (in the case of a determination by the Borrower) or to the Credit Parties and the Borrower (in the case of a determination by the Administrative Agent). “Designated Persons” means, at any time, (a) any Person identified on any sanctions - related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury, the Government of Canada, or other relevant sanctions authority, or (b) any Person owned or controlled by any such Person or Persons described in clause (a) or that is otherwise the target of Sanctions Laws such that dealing or otherwise engaging in business transactions or other activities with such Person are restricted. “Disqualified Stock” means, with respect to any Person, any Capital Stock of such Person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event: (a) matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise; (b) is convertible or exchangeable for Debt or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Borrower or a Restricted Subsidiary); or (c) is redeemable at the option of the holder of the Capital Stock in whole or in part, (d) in each case on or prior to the earlier of (a) the Maturity Date or (b) on which there are no Obligations outstanding, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Borrower to repurchase such Capital Stock upon the occurrence of a Change of Control or Asset Disposition shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that the Borrower may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by the Borrower with Section 6.02.
15 “Dollars”, “USD” or “$” refers to lawful money of the United States of America. “EEA Financial Institution” means (a) any credit institution or investment firm established in any EEA Member Country which is subject to the supervision of an EEA Resolution Authority, (b) any entity established in an EEA Member Country which is a parent of an institution described in clause (a) of this definition, or (c) any financial institution established in an EEA Member Country which is a subsidiary of an institution described in clauses (a) or (b) of this definition and is subject to consolidated supervision with its parent. “EEA Member Country” means any of the member states of the European Union, Iceland, Liechtenstein and Norway. “EEA Resolution Authority” means any public administrative authority or any person entrusted with public administrative authority of any EEA Member Country (including any delegee) having responsibility for the resolution of any EEA Financial Institution. “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a person with the intent to sign, authenticate or accept such contract or record. “Electronic System” means any electronic system, including e-mail, e-fax, Intralinks®, ClearPar® and any other Internet or extranet-based site, whether such electronic system is owned, operated or hosted by the Administrative Agent and any of its respective Related Parties or any other Person, providing for access to data protected by passcodes or other security systems. “Engagement Letter” means that certain Engagement Letter, dated as of the date hereof, by and between the Borrower and the Lead Arrangers. “Environmental Laws” means all Laws applicable to the Borrower or any of its Subsidiaries relating to pollution, the preservation or protection of the environment (including without limitation air, water, land, subsurface strata, organisms, ecosystems, and biodiversity) or natural resources or harm to or the protection of human health or the health of animals or plants or the generation, manufacture, use, management, labeling, treatment, storage, handling, transportation, recycling or Release of, or exposure to, any Hazardous Material. “Environmental Liability” means any liability or obligation (including any liability or obligation for or relating to damages, costs of environmental remediation, fines, penalties and indemnities), of the Borrower or any Subsidiary directly or indirectly resulting from or based upon (a) noncompliance with any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release of any Hazardous Materials into the environment or (e) any contract, agreement or other consensual arrangement pursuant to which liability is assumed or imposed with respect to any of the foregoing. “Equity Issuance” means any issuance or sale by the Borrower or any member of the Comcel Group of any Capital Stock except for (i) any issuance pursuant to, or upon the exercise of options or similar rights granted pursuant to, equity-based incentive or deferred compensation plans or arrangements, employee stock purchase plans, dividend reinvestment plans or other compensation plans and, in each case, any hedging or similar arrangements related to any of the foregoing, (ii) exchange offers, (iii) grants to employees made in the ordinary course of business, (iv) issuances or sales to the Borrower or any Restricted Subsidiary, (v) directors’ qualifying shares and/or other nominal amounts required to be held by Persons
16 other than the Borrower or its Restricted Subsidiaries under applicable Law and (vi) any de minimis issuance required in order to comply with shareholding requirements under applicable Law. “ERISA” means, at any date, the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder, all as the same may be in effect at such date. “ERISA Affiliate” means any trade or business (whether or not incorporated) that, together with the Borrower, is treated as a single employer under Section 414(b) or (c) of the Code or, solely for purposes of Section 302 of ERISA and Section 412 of the Code, is treated as a single employer under Section 414 of the Code. “ERISA Event” means (a) any “reportable event”, as defined in Section 4043 of ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which the 30 day notice period is waived); (b) the failure of any Plan to satisfy the minimum funding standard of Section 412 and 430 of the Code or Sections 302 or 303 of ERISA applicable to such Plan, whether or not waived; (c) the filing pursuant to Section 412(c) of the Code or Section 303(c) of ERISA of an application for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any liability under Title IV of ERISA (other than for PBGC premiums due but not delinquent under Section 4007 of ERISA) with respect to the termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan administrator of any notice of an intention to terminate any Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal (within the meanings of Sections 4203 and 4205 of ERISA) from any Multiemployer Plan; or (g) the receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in endangered or critical status, within the meaning of Title IV of ERISA. “EU Bail-In Legislation Schedule” means the EU Bail-In Legislation Schedule published by the Loan Market Association (or any successor person), as in effect from time to time. “Event of Default” has the meaning assigned to such term in Section 7.01. “Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Recipient, Luxembourg withholding Taxes imposed on amounts payable to or for the account of such Recipient pursuant to a law in effect on the date on which (i) such Recipient acquires such interest in the Loan or Commitment or becomes a party to this Agreement (other than pursuant to an assignment request by the Borrower under Section 2.15(b)) or (ii) such Recipient (if the Recipient is a Lender) changes its Lending Office, except in each case to the extent that, pursuant to Section 2.13, amounts with respect to such Taxes were payable either to such Recipient’s assignor immediately before such Recipient acquired such interest in the Loan or Commitment or became a party hereto or to such Recipient immediately before it changed its Lending Office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.13(f), and (d) any U.S. federal Taxes imposed under FATCA. “Extended Maturity Date” has the meaning assigned to such term in Section 2.20(a).
17 “Extension Fee” has the meaning set forth in the Lender Fee Letter. “Facility” means the Commitments and the Loans made in respect thereof. “Fair Market Value” means, with respect to any asset or property, the sale value that would be obtained in an arm’s length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Chief Executive Officer or a Financial Officer of the Borrower. “FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof, any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or official practices adopted pursuant to any intergovernmental agreement, treaty or convention among Governmental Authorities and implementing such Sections of the Code. “FCA” has the meaning assigned to such term in Section 1.07. “Federal Funds Effective Rate” means, for any day, a fluctuating interest rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published for such day (or, if such day is not a Business Day, for the immediately preceding Business Day) by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average of the quotations for such day on such transactions received by the Administrative Agent from three Federal funds brokers of recognized standing reasonably selected by the Administrative Agent; provided, that if the Federal Funds Effective Rate for any day is less than zero, the Federal Funds Effective Rate for such day will be deemed to be zero. “Fee Letters” means the Administrative Agent Fee Letter, the MLA Fee Letter and the Lender Fee Letter. “Financial Covenant” means the financial covenant set forth in Section 6.08. “Financial Officer” means the chief financial officer, principal accounting officer, treasurer or controller of the Borrower. “Financial Quarter” means the period commencing on the day after one Quarter Date and ending on the next Quarter Date. “Financial Year” means the annual accounting period of the Borrower ending on December 31 in each year. “Fitch” means Fitch Ratings Inc. and any successor to its rating agency business. “Fund” means a trust, fund or other entity or Person which is regularly engaged in or established for the purpose of making, purchasing or investing in loans, securities or other financial assets. “Governmental Authority” means the government of the United States of America, any other nation or any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including
18 any supra-national bodies exercising such powers or functions, such as the European Union or European Central Bank). “Group” means the Borrower and its Subsidiaries. “Hazardous Materials” means any material, substance or waste that is listed, regulated, or otherwise defined as hazardous, toxic or radioactive (or words of similar regulatory intent or meaning) under any Environmental Law, or the exposure to which or the Release of which could give rise to any Environmental Liability or is otherwise capable of harm to human health or the environment. “IBA” has the meaning assigned to such term in Section 1.07. “IFRS” means international accounting standards within the meaning of the IAS Regulation 606/2002 to the extent applicable to the relevant financial statements. “Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of the Borrower under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes. “Indentures” means (i) that certain Indenture dated as of October 27, 2020 relating to the Borrower’s Senior Notes due 2031; (ii) that certain Indenture dated as of March 25, 2019 relating to the Borrower’s Senior Notes due 2029; (iii) that certain Indenture dated as of October 16, 2018 relating to the Borrower’s Senior Notes due 2026; (iv) that certain Amended and Restated Indenture dated as of May 30, 2018 relating to the Borrower’s Senior Notes due 2028; (v) the terms of the Borrower’s SEK Bonds issued on May 15, 2019; and (vi) any additional indentures or other debt instruments executed after the Signing Date to refinance any of the notes issued pursuant to the foregoing and containing substantially similar prepayment terms; provided, that, with respect to (i) through (v), any amendments, restatements or supplements to such indentures made after the Signing Date that would result in any Lender under this Agreement receiving less Net Proceeds from Disposals in accordance with Section 2.08(a)(iv) than such Lender would otherwise receive prior to giving effect to such amendments, restatements or supplements shall be disregarded for purposes of determining the ratable portion of Net Proceeds to be allocated to such Lender pursuant to Section 2.08(a)(iv). “Initial Lender” means any of the initial lenders listed on Schedule I. “Interest Payment Date” means the last day of each Interest Period and the Maturity Date. “Interest Period” means, (a) initially, the period commencing on the Closing Date and ending on the numerically corresponding day in the third (3rd) calendar month thereafter and (b) thereafter, each three (3) month period commencing on the day immediately following the last day of the immediately preceding Interest Period and ending on the numerically corresponding day in the third (3rd) calendar month thereafter (except that any Interest Period that commences on the day of a calendar month (or on any day for which there is no numerically corresponding day in the appropriate subsequent calendar month) shall end on the last day of the appropriate subsequent calendar month); provided that, notwithstanding the foregoing, (x) if any Interest Period would otherwise end after the Maturity Date, such Interest Period shall end on such Maturity Date and (y) each Interest Period that would otherwise end on a day which is not a Business Day shall end on the immediately following Business Day (or, if such immediately following Business Day falls in the next calendar month, on the immediately preceding Business Day). “Interest Rate, Currency or Commodity Price Agreement” means any forward contract, futures contract, swap, option or other financial agreement or arrangement (including, without limitation, caps,
19 floors, collars and similar agreements) relating to, or the value of which is dependent upon, interest rates, currency exchange rates or commodity prices or indices (excluding contracts for the purchase or sale of goods in the ordinary course of business). “Investment” by any Person means any direct or indirect loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise) to, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person, including any payment on a guarantee of any obligation of such other Person, together with all items that are or would be classified as Investments on a statement of financial position (excluding the footnotes thereto) prepared in accordance with IFRS, but shall not include (a) trade accounts receivable in the ordinary course of business on credit terms made generally available to the customers of such Person, or (b) commission, travel, payroll, entertainment, relocation and similar advances to officers and employees and profit sharing and other employee benefit plan contributions made in the ordinary course of business. Except as otherwise provided in this Agreement, the amount of an Investment will be determined at the time the Investment is made and without giving effect to a subsequent change in value and, to the extent applicable, shall be determined based on the equity value of such Investment. “Investment Grade” means (i) BBB- or above in the case of Fitch (or its equivalent under any successor Rating Categories of Fitch), (ii) Baa3 or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), and (iii) the equivalent in respect of the Rating Categories of any other Rating Agencies. “IRS” means the United States Internal Revenue Service. “Joint Venture” means any joint venture entity, whether a company, unincorporated firm, undertaking, association, joint venture or partnership or any other entity. “Joint Venture Consolidated EBITDA” means an amount equal to the product of (i) the Consolidated EBITDA of any Joint Venture (determined in good faith by a responsible financial or accounting officer of the Borrower on the same basis as provided for in the definition of “Consolidated EBITDA” (with the exception of clause (i) and the last sentence thereof regarding the addition of any Joint Venture Consolidated EBITDA to the calculation) as if each reference to the Borrower in such definition was to such Joint Venture) whose financial results are not consolidated with those of such Person in accordance with IFRS and (ii) a percentage equal to the direct or indirect equity ownership percentage of the Borrower and/or any of its Subsidiaries in the Capital Stock of such Joint Venture and its Subsidiaries. “KYC Requirements” has the meaning assigned to such term in Section 4.01(h). “Law” means any law (including common law), statute, directive, regulation, rule, ordinance, code, requirement, binding agreement, statutory guidance, regulatory code of practice, judgment, order, executive order, decree, injunction, decision, determination or permit issued, entered into, or promulgated by or with a Governmental Authority. “Lead Arranger” means each of Goldman Sachs Bank USA, J.P. Morgan AG and Morgan Stanley Senior Funding, Inc., as Joint Mandated Lead Arrangers and Joint Bookrunners for the Facility . “Lender Fee Letter” means the fee letter, dated as of the date hereof, between the Borrower, the Lead Arrangers and the Administrative Agent with respect to the fees payable to the Lenders in connection with the Facility.
20 “Lenders” means the Initial Lenders listed on Schedule I and any other Person that shall have become a party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption. “Lending Office” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent which office may include any Affiliate of such Lender or any domestic or foreign branch of such Lender or such Affiliate; provided, that such other office or offices, Affiliate or branch shall not increase the amounts payable by the Borrower under Section 2.11 or 2.13 (unless approved by the Borrower). Unless the context otherwise requires each reference to a Lender shall include its applicable Lending Office. “LIBOR Market Index Rate” means, for any day, the Adjusted LIBO Rate as of that day that would be applicable for a Loan having a one-month Interest Period determined at approximately 11:00 a.m. (London time) for such day, or if such day is not a Business Day, the immediately preceding Business Day. The LIBOR Market Index Rate shall be determined on a daily basis. If the LIBOR Market Index Rate determined as provided hereinabove would be less than zero, the LIBOR Market Index Rate shall be deemed to be zero. “Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease having substantially the same economic effect as any of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or similar right of a third party with respect to such securities. “Limited Condition Transaction” means (i) any Investment or acquisition, including by way of merger, amalgamation or consolidation, in each case, by one or more members of the Restricted Group of any assets, business or Person whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment. “Loan Documents” means this Agreement, including without limitation, the schedules and exhibits hereto, the Fee Letters, and any other document designated as a “Loan Document” by the Administrative Agent and the Borrower. “Loans” means the loans, denominated in Dollars, made by the Lenders to the Borrower on the Closing Date pursuant to this Agreement. “Luxembourg” means the Grand Duchy of Luxembourg. “Luxembourg Commercial Code” means the Code de Commerce of Luxembourg. “Luxembourg Companies Act” means the Luxembourg act dated 10 August 1915 on commercial companies, as amended. “Mandatory Prepayment Event” means any of the events described in clauses (i), (ii) and (iii) of Section 2.08(a).
21 “Material Adverse Effect” means any event or circumstance that has a material adverse effect on (a) the ability of the Borrower to perform its payment obligations under the Loan Documents or (b) the validity or enforceability of this Agreement or the rights or remedies of the Lenders hereunder. “Material Intellectual Property” has the meaning assigned to such term in Section 5.05(b). “Maturity Date” means the date that is six (6) months following the Closing Date (as such date may be extended in accordance with Section 2.20). “Maximum Rate” has the meaning assigned to such term in Section 10.14. “MICSA Revolving Facility Agreement” means that certain Revolving Loan Agreement dated as of October 15, 2020, by and among the Borrower, the Lenders named therein and the Bank of Nova Scotia as Administrative Agent, as amended, supplemented or otherwise modified from time to time. “Minority Shareholder Loans” means Debt of any Restricted Subsidiary that is issued to and held by an equity owner of such Subsidiary, other than the Borrower or a Subsidiary of the Borrower. “MLA Fee Letter” means the fee letter, dated as of the date hereof, between the Borrower and the Lead Arrangers. “Moody’s” means Moody’s Investors Services, Inc. and any successor to its rating agency business. “Multiemployer Plan” means a multiemployer plan as defined in Section 4001(a)(3) of ERISA. “Net Proceeds” means cash proceeds actually received by a member of the Group, net of all related fees, costs commissions, expenses, discounts and Taxes in each case incurred by a member of the Group directly in connection with the transaction giving rise to the relevant Net Proceeds. “NYFRB” means the Federal Reserve Bank of New York. “NYFRB’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source. “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if none of such rates are published for any day that is a Business Day, the term “NYFRB Rate” means the rate for a federal funds transaction quoted at 11:00 a.m. on such day received by the Administrative Agent from a federal funds broker of recognized standing selected by it. “Obligations” means the unpaid principal of and interest on (including interest accruing after the maturity of the Loans and interest accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Borrower, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) the Loans and all other obligations and liabilities of the Borrower to any Credit Party, whether direct or indirect, absolute or contingent, due or to become due, or now existing or hereafter incurred, which may arise under, out of, or in connection with, this Agreement, any other Loan Document, or any other document made, delivered or given in connection herewith or therewith, whether on account of principal, interest, reimbursement obligations, fees, indemnities, costs, expenses (including all fees, charges and disbursements of counsel to
22 the Credit Parties that are required to be paid by the Borrower pursuant hereto) or otherwise, including the obligations to pay, discharge and satisfy the Erroneous Payment Subrogation Rights. “OFAC” means Office of Foreign Assets Control of the United States Department of the Treasury. “Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Loan Document, or sold or assigned an interest in any Loan or Loan Document). “Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Loan Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.15). “Participant” has the meaning assigned to such term in Section 10.04(c). “Participant Register” has the meaning assigned to such term in Section 10.04(c). “Payment” has the meaning assigned to it in Section 9.01(a). “Payment Notice” has the meaning assigned to it in Section 9.01(b). “PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA and any successor entity performing similar functions. “Permitted Asset Swap” means the concurrent purchase and sale or exchange of related business assets or a combination of related business assets, cash and Cash Equivalents between any member of the Restricted Group and another Person. “Permitted Debt” means: (a) any Debt incurred under this Agreement and the MICSA Revolving Facility Agreement; (b) Debt (other than Debt described in another clause of this definition) that is (x) outstanding on the date of this Agreement or (y) committed or mandated on the date of this Agreement and disclosed in writing to the Lenders and the Administrative Agent prior to such date; (c) Pari passu Debt of any member of the Restricted Group under Credit Facilities and any Permitted Refinancing Debt in respect thereof in an aggregate principal amount at any one time outstanding that does not exceed an amount equal to the greater of $900,000,000 and eight percent (8%) of Total Assets, plus (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the case of any refinancing of Debt permitted under this clause (c) or any portion thereof, the aggregate amount of fees, underwriting discounts and commissions, premiums and other costs and expenses incurred in connection with such refinancing;
23 (d) Debt owed by any member of the Restricted Group to any other member of the Restricted Group; provided, that (A) if the Borrower is the obligor on such Debt, such Debt must be unsecured and expressly subordinated (it being understood that any such subordination terms must be effective at the time such Debt is incurred; provided that, such subordination shall only apply during the existence of an Event of Default pursuant to clauses 7.01(a), (b), (h) or (i) or following an acceleration of the Loans pursuant to Section 7.01) to the prior payment in full in cash of all of the Borrower’s obligations under the MICSA Revolving Facility Agreement, and (B) either (x) the transfer or other disposition by such member of the Restricted Group of any Debt so permitted to a Person (other than to any other member of the Restricted Group) or (y) such member of the Restricted Group ceasing to be a Restricted Subsidiary, will at the time of such transfer or other disposition, in each case, be deemed to be an incurrence of such Debt not permitted by this clause (d); (e) Acquired Debt; (f) Minority Shareholder Loans; (g) Permitted Refinancing Debt of any member of the Restricted Group incurred in exchange for, or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each case, successive refinancings, extensions and renewals), Debt of any such Person incurred in compliance with the Debt Incurrence Test set forth in the MICSA Revolving Facility Agreement or clauses (a), (b), (e) or this clause (g) of this definition, as the case may be; (h) Debt of any member of the Restricted Group represented by letters of credit in order to provide security for workers’ compensation claims, health, disability or other employee benefits, payment obligations in connection with self-insurance or similar requirements of any member of the Restricted Group in the ordinary course of business; (i) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any assets of any member of the Restricted Group, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than guarantees of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such incurrence of such Debt will at no time exceed the gross proceeds actually received by such member of the Restricted Group, as applicable, in connection with the related disposition; (j) obligations in respect of (i) customs, VAT or other tax guarantees, (ii) bid, performance, completion, guarantee, surety and similar bonds, including guarantees or obligations of any member of the Restricted Group with respect to letters of credit supporting such obligations and (iii) the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt for borrowed money; (k) Debt of any member of the Restricted Group arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; provided that such Debt is extinguished within thirty (30) days of incurrence;
24 (l) guarantees by any member of the Restricted Group of Debt or any other obligation or liability of any other member of the Restricted Group (other than of any Debt incurred in violation of the Debt Incurrence Test set forth in the MICSA Revolving Facility Agreement); provided, however, that if the Debt being guaranteed is subordinated in right of payment to the Loans or any guarantee of the Loans, then such guarantee shall be subordinated substantially to the same extent as the relevant Debt guaranteed; (m) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to any member of the Restricted Group in connection with the issuance of notes or other similar debt securities intended to be supported primarily by the payment obligations of any member of the Restricted Group in connection with any vendor financing platform; (n) Debt of any member of the Restricted Group in an aggregate outstanding principal amount which, when taken together with any Permitted Refinancing Debt in respect thereof and the principal amount of all other Debt incurred pursuant to this clause (n) and then outstanding, will not exceed one-hundred percent (100%) of the cash proceeds (net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing arrangements)) received by, such member of the Restricted Group, as applicable, from the issuance or sale (other than to any other member of the Restricted Group) of its Minority Shareholder Loans or Capital Stock or otherwise contributed to the equity of the Borrower, as applicable, in each case, subsequent to the date of execution of this Agreement (and in each case, other than through the issuance of Disqualified Stock or Preferred Stock); (o) Debt consisting of (i) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of any member of the Restricted Group or (ii) Debt otherwise incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of any member of the Restricted Group whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Permitted Refinancing Debt in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Debt incurred pursuant to this clause (o), will not exceed the greater of (1) $250,000,000 and (2) three percent (3%) of Total Assets at any time outstanding; or (p) Debt not otherwise permitted to be incurred pursuant to clauses (a) through (o) above, which, together with any other outstanding Debt incurred pursuant to this clause (p), including any Permitted Refinancing Debt in respect thereof, has an aggregate principal amount at any time outstanding not in excess of the greater of (A) $300,000,000 and (B) four percent (4%) of Total Assets, plus, in the case of any refinancing of Debt permitted under this clause (p) or any portion thereof, the aggregate amount of fees, underwriting discounts and commissions, premiums and other costs and expenses incurred in connection with such refinancing.
25 In the event that an item of Debt meets the criteria of more than one of the types of Permitted Debt or is entitled to be incurred in accordance with the Debt Incurrence Test set forth in the MICSA Revolving Facility Agreement, the Borrower in its sole discretion may classify and from time to time reclassify such item of Debt or any portion thereof and only be required to include the amount of such Debt as one of such types. “Permitted Disposals” means: (a) any dispositions of assets in a single transaction or series of transactions with an aggregate Fair Market Value in any calendar year of not more than the greater of (x) $25,000,000 (or the equivalent in other currencies) and (y) one percent (1%) of Total Assets (with unused amounts in any calendar year being carried over to the next succeeding year subject to a maximum of the greater of $25,000,000 (or the equivalent in other currencies) and one percent (1%) of Total Assets of carried over amounts for any calendar year); (b) any Specified Subsidiary Sale; (c) any disposition of Tower Equipment, including any Sale/Leaseback Transaction; (d) a transfer of assets between or among members of the Restricted Group; (e) the issuance of Capital Stock by a Restricted Subsidiary to any other member of the Restricted Group; (f) any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a Person (other than any member of the Restricted Group) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (g) the sale, lease or other transfer of products, services, accounts receivable, inventory or other assets in the ordinary course of business and any sale or other disposition of damaged, surplus, worn-out or (in the good faith judgment of the Borrower) obsolete assets; (h) dispositions in connection with Permitted Liens; (i) disposals of assets, rights or revenue not constituting part of the Related Business; (j) licenses and sublicenses of any member of the Restricted Group in the ordinary course of business; (k) any surrender or waiver of contract rights or settlement, release, recovery on, or surrender of, contract, tort or other claims in the ordinary course of business; (l) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings; (m) a transfer or disposition of assets that is governed by the provisions of Section 6.01 of the Loan Agreement;
26 (n) the sale or other disposition of cash or Cash Equivalents; (o) the foreclosure, condemnation or any similar action with respect to any property or other assets; (p) a transfer or disposition of assets that is governed by Section 6.05 of the Loan Agreement; (q) sales of accounts receivable and related assets or an interest therein of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Entity, and Investments in a Receivables Entity consisting of cash or securitization obligations; (r) any disposition or expropriation of assets or Capital Stock which any member of the Restricted Group is required by, or made in response to concerns raised by, a regulatory authority or court of competent jurisdiction; (s) any disposition of Capital Stock, Debt or other securities of an Unrestricted Subsidiary; (t) disposal of non-core assets acquired in connection with any acquisition permitted under this Agreement; (u) any disposition of assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by any member of the Restricted Group to such Person; (v) any disposition of Investments in Joint Ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the Joint Venture parties set forth in Joint Venture arrangements and similar binding agreements; (w) any sale or disposition with respect to property built, repaired, improved, owned or otherwise acquired by any member of the Restricted Group pursuant to customary sale and leaseback transactions, asset securitizations and other similar financings permitted by this Agreement; (x) any dispositions constituting the surrender of tax losses by any member of the Restricted Group (i) to any other member of the Restricted Group, (ii) in order to eliminate, satisfy or discharge any tax liability of any Person that was formerly a subsidiary of such member of the Restricted Group which has been disposed of pursuant to a disposal permitted by the terms of this Agreement, to the extent that such member of the Restricted Group would have a liability (in the form of an indemnification obligation or otherwise) to one or more persons in relation to such tax liability if not so eliminated, satisfied or discharged; (y) the disposal of all of the outstanding ordinary shares or other Capital Stock of any of the Subsidiaries of the Borrower organized or operating in Tanzania; (z) Permitted Asset Swaps; and (aa) any other disposal of assets not described in clauses (a) through (z) above consisting in the aggregate a value of ten percent (10%) or less of Total Assets. “Permitted Interest Rate, Currency or Commodity Price Agreement” means any Interest Rate, Currency or Commodity Price Agreement entered into with one or more financial institutions in the
27 ordinary course of business that is designed to protect against fluctuations in interest rates or currency exchange rates and which shall have a notional amount no greater than the payments due with respect to the Debt being hedged thereby, or in the case of currency or commodity protection agreements against currency exchange or commodity price fluctuations in the ordinary course of business relating to then existing financial obligations and not for purposes of speculation. “Permitted Investments” means (1) any loan made by any member of the Restricted Group to any other member of Restricted Group, (2) loans or advances to employees and officers (or guarantees of intra- Restricted Group loans or intra-Restricted Group loans to employees or officers) in the ordinary course of business; (3) customary cash management, cash pooling or netting or setting off arrangements; and (4) the granting of Liens pursuant to clause (n) of the definition of Permitted Liens. “Permitted Liens” means: (a) Liens for taxes, assessments or governmental charges or levies on the property of any member of the Restricted Group if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings promptly instituted and diligently concluded; provided that any reserve or other appropriate provision that shall be required in conformity with IFRS shall have been made therefor; (b) Liens imposed by law, such as statutory Liens of landlords’, carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, on the property of any member of the Restricted Group in the ordinary course of business arising solely by virtue of any statutory or common law (but not contractual) provisions relating to bankers’ Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution; (c) Liens on the property of any member of the Restricted Group incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance bids, trade contracts, letters of credit performance or return-of-money bonds, surety bonds or other obligations of a like nature and incurred in a manner consistent with industry practice, in each case which are not incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Restricted Group taken as a whole; (d) Liens on property at the time any member of the Restricted Group acquired such property, including any acquisition by means of a merger or consolidation; provided, however, that any such Lien may not extend to any other property of such member of the Restricted Group; (e) Liens on the property of a Person at the time such Person becomes a member of the Restricted Group; provided, however, that any such Lien may not extend to any other property of any other member of the Restricted Group that is not a direct or, prior to such time, indirect Subsidiary of such Person (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition);
28 (f) pledges or deposits by any member of the Restricted Group under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which any member of the Restricted Group is party, or deposits to secure public or statutory obligations of any member of the Restricted Group or deposits for the payment of rent, in each case incurred in the ordinary course of business; (g) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character; (h) Liens in favor of a credit card processor arising in the ordinary course of business under any processor agreement; (i) any provision for the retention of title to any property by the vendor or transferor of such property which property is acquired by any member of the Restricted Group in a transaction entered into in the ordinary course of business of such Person and for which kind of transaction it is customary market practice for such retention of title provision to be included; (j) Liens arising by means of any judgment, decree or order of any court so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order have not been fully terminated or the period within which such proceedings may be initiated has not expired and any Liens that are required to protect or enforce rights in any administrative, arbitration or other court proceeding in the ordinary course of business; (k) Liens securing Debt of any member of the Restricted Group under any Credit Facility; (l) Liens securing any Permitted Interest Rate, Currency or Commodity Price Agreement; (m) Liens securing Acquired Debt described in clause (a) of the definition thereof (provided that any Liens securing Permitted Refinancing Debt with respect thereto shall not be a Permitted Lien pursuant to this clause (m)); (n) Liens on the Capital Stock or other securities or assets of any Unrestricted Subsidiary to secure Debt of that Unrestricted Subsidiary; (o) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which any member of the Restricted Group has easement rights or on any real property leased by any member of the Restricted Group or similar agreements relating thereto and any condemnation or eminent domain proceedings or compulsory purchase order affecting real property; (p) Liens existing on the date of execution of this Agreement; (q) Liens in favor of any member of the Restricted Group; (r) Liens securing customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any member of the
29 Restricted Group, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than guarantees of Debt incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; (s) Liens securing Debt of any member of the Restricted Group arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; (t) Liens on insurance policies and the proceeds thereof, or other deposits, to secure insurance premium financings in respect of any member of the Restricted Group; (u) Liens arising from financing statement filings (or other similar filings in any applicable jurisdiction) regarding operating leases entered into by any member of the Restricted Group in the ordinary course of business; (v) Liens on goods (and the proceeds thereof) and documents of title and the property covered thereby securing Debt in respect of commercial letters of credit issued to facilitate the purchase, shipment or storage of such inventory or other goods; (w) Liens for the purpose of securing the payment of all or a part of the purchase price of Capital Lease Obligations, Purchase Money Obligations or other payments incurred by any member of the Restricted Group to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that such Liens do not encumber any other assets or property of any member of the Restricted Group other than such assets or property and assets affixed or appurtenant thereto; (x) Liens on property of any member of the Restricted Group to secure Debt of the type described in clauses (h), (i), (j), (k) and (o) of the definition of “Permitted Debt”; (y) Liens on any escrow account used in connection with an acquisition of property or Capital Stock of any Person or pre-funding a refinancing of Debt otherwise permitted by this Agreement; (z) Liens on the deposits of any member of the Restricted Group in favor of financial institutions arising from any netting or set-off arrangement substantially consistent with its current practice for the purpose of netting debt and credit balances substantially consistent with such member of the Restricted Group’s existing cash pooling arrangements; (aa) Liens incurred in the ordinary course of business of any member of the Restricted Group with respect to obligations that do not exceed the greater of $500,000,000 (or the equivalent in other currencies) and four percent (4%) of Total Assets at any one time outstanding and that do not in the aggregate materially detract from the value of the property of the Borrower, or materially impair the use thereof in the operation of business by the Restricted Group; (bb) Liens over cash or other assets that secure collateralized obligations incurred as permitted Debt; provided that the amount of cash collateral does not exceed the principal amount of the permitted Debt;
30 (cc) Liens on Restricted MFS Cash of any member of the Restricted Group in favor of the customers or dealers of, or third parties in relation to the provision of mobile financial services, in each case who provided such Restricted MFS Cash to such Person; (dd) Liens over rights under loan agreements relating to, or over notes or similar instruments evidencing, the on-loan of proceeds received by any member of the Restricted Group from the issuance of Debt, which Liens are created to secure payment of such Debt; (ee) Liens on Receivables and related assets of the type described in the definition of “Qualified Receivables Transaction” incurred in connection with a Qualified Receivables Transaction, and Liens on Investments in Receivables Entities; (ff) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Transaction; (gg) Liens for the purpose of perfecting the ownership interests of a purchaser of Receivables and related assets pursuant to any Qualified Receivables Transaction; (hh) Liens arising in connection with other sales of Receivables permitted hereunder without recourse to any member of the Restricted Group; (ii) Liens in respect of the ownership interests in, or assets owned by, any Joint Ventures or similar arrangements, other than Joint Ventures or similar arrangements that are Restricted Subsidiaries, securing obligations of such Joint Ventures or similar agreements; (jj) any encumbrance or restriction (including, but not limited to, put and call arrangements) with respect to Capital Stock of any Joint Venture or similar arrangement pursuant to any Joint Venture or similar agreement; and (kk) Liens on the property of any member of the Restricted Group to replace in whole or in part, any Lien described in the foregoing clauses (a) through (jj); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Debt being refinanced or in respect of property that is the security for a Permitted Lien hereunder. “Permitted Refinancing Debt” means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, a “refinancing”) of any Debt of any member of the Restricted Group, including any successive refinancings, as long as: (a) such Permitted Refinancing Debt is in an aggregate principal amount (or if incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (i) 100% of the aggregate principal amount (or if incurred with original issue discount, the aggregate accreted value plus all accrued interest) then outstanding of the Debt being refinanced; and (ii) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing; (b) such Permitted Refinancing Debt has (i) a stated maturity that is either (X) no earlier than the stated maturity of the Debt being refinanced or (Y) after the stated maturity of the Loans and (ii) a Weighted Average Life-to-Maturity that is equal to or greater than the Weighted Average Life-to-Maturity of the Debt being refinanced; (c) if the Debt being refinanced is subordinated in right of payment to the Loans, such Permitted Refinancing Debt is subordinated in right of payment to, the Loans on terms at least as favorable to the Lenders as those contained in the documentation governing the Debt being refinanced; and (d) if the Borrower was the obligor on the Debt being refinanced, such Permitted Refinancing Debt is incurred by the Borrower.
31 Permitted Refinancing Debt shall include, in respect of any Credit Facility or any other Debt incurred from time to time after the termination, discharge or repayment of all or any part of such Credit Facility or other Debt. Permitted Refinancing Debt shall not include any Debt of any Person that refinances Debt of an Unrestricted Subsidiary. “Permitted Reorganization” means (a) an amalgamation, merger, consolidation, corporate reconstruction, or reorganization involving (i) the Borrower where the entity formed by or surviving such amalgamation, merger, consolidation, corporate reconstruction, or reorganization is the Borrower or (ii) a Restricted Subsidiary where the entity formed by or surviving such amalgamation, merger, consolidation, corporate reconstruction, or reorganization is a Restricted Subsidiary, (b) any liquidation, winding up, or dissolution of any Restricted Subsidiary that is not a Significant Subsidiary undertaken in connection with a corporate reorganization, provided that such liquidation, winding up, or dissolution is not materially adverse to the interests of the Lenders. “Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization, limited liability company or government or other entity. “Plan” means any employee pension benefit plan within the meaning of Section 3(2) of ERISA (other than a Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or, if such plan were terminated, would under Section 4062 of ERISA be deemed to be) an “employer” as defined in Section 3(5) of ERISA. “Platform” has the meaning assigned in Section 10.01(d)(i). “Preferred Stock” of any Person means Capital Stock of such Person of any class or classes (however designated) that ranks 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 such Person, to shares of Capital Stock of any other class of such Person. “Prime Rate” means the rate of interest per annum publicly announced from time to time by JPMorgan Chase Bank, N.A. (or any replacement Administrative Agent) as its prime rate in effect at its office located at Toronto, Canada (or the principal office of any such replacement Administrative Agent) (which is not necessarily the lowest rate charged to any customer); each change in the Prime Rate shall be effective from and including the date such change is publicly announced as being effective. “Pro-Rata Share” means, with respect to any Lender, the percentage of the total Credit Exposures and unused Commitments represented by such Lender’s Credit Exposure and unused Commitments. “Proceeding” means any claim, action, suit, inquiry, investigation, or other proceeding by or before any Governmental Authority. “Process Agent” has the meaning assigned to such term in Section 10.09. “Prohibited Payment” has the meaning assigned to such term in Section 3.13(e). “Purchase Money Obligations” means any Debt incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
32 “Purchasers” means Millicom International II N.V., a Curaçao limited liability company, and Shai Holding S.A., a Luxembourg société anonyme. “Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by any member of the Restricted Group pursuant to which such Person or its Subsidiaries may sell, convey or otherwise transfer to (i) a Receivables Entity (in the case of a transfer by such Person or any of its Subsidiaries) and (ii) any other Person (in the case of a transfer by a Receivables Entity), or may grant a Lien in, any Receivables (whether now existing or arising in the future) of such Person or any of its Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Receivables, all contracts and all guarantees or other obligations in respect of such accounts receivable, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which Liens are customarily granted, in connection with asset securitization involving Receivables and any Interest Rate, Currency or Commodity Price Agreement entered into by such Person or any such Subsidiary in connection with such Receivables. “Quarter Date” means each of March 31, June 30, September 30 and December 31. “Rating Agency” means each of (i) Fitch, Moody’s and S&P or (ii) if any of Fitch, Moody’s or S&P are not making ratings of the Debt publicly available, an internationally recognized rating agency or agencies, as the case may be, selected by the Borrower, which will be substituted for any of Fitch, Moody’s or S&P, as the case may be. “Rating Category” means (i) with respect to Fitch, any of the following categories (any of which may include a “+” or “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C, R, SD and D (or equivalent successor categories); (ii) with respect to Moody’s, any of the following categories (any of which may include a “1,” “2” or “3”): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, and C (or equivalent successor categories), and (iii) the equivalent of any such categories of Fitch or Moody’s used by another Rating Agency, if applicable. “Re-designation” has the meaning assigned to such term in Section 6.07(c). “Recast Regulation” has the meaning assigned to such term in Section 3.16. “Receivable” means a right to receive payment arising from a sale or lease of goods or the performance of services by a Person pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an “account,” “chattel paper,” “payment intangible” or “instrument” under the Uniform Commercial Code as in effect in the State of New York and any “supporting obligations” as so defined. “Receivables Entity” means a wholly-owned Subsidiary of a Person (or another Person in which such Person or any Subsidiary of such Person makes an Investment or to which such Person or any Subsidiary of such Person transfers Receivables and related assets) which engages in no activities other than in connection with the financing of Receivables and which is designated by the board of directors or senior management of such Person as a Receivables Entity: (a) no portion of the Debt or any other obligations (contingent or otherwise) of which: (i) is guaranteed by such Person or any Subsidiary of such Person (excluding guarantees of obligations (other than the principal of, and interest on, Debt) pursuant to Standard Securitization Undertakings); (ii) is recourse to or obligates such Person or any Subsidiary of such Person in any way other than pursuant to Standard Securitization Undertakings; or (iii) subjects any property or asset of such Person or any Subsidiary of such Person, directly
33 or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings except, in each such case, certain Permitted Liens; (b) with which neither such Person nor any Subsidiary of such Person has any material contract, agreement, arrangement or understanding (except in connection with a purchase money note or Qualified Receivables Transaction) other than on terms not materially less favorable to such Person or such Subsidiary than those that might be obtained at the time from Persons that are not affiliates of such Person, other than fees payable in the ordinary course of business in connection with servicing Receivables; and (c) to which neither such Person nor any Subsidiary of such Person has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than those related to or incidental to the relevant Qualified Receivables Transaction). Any such designation by the board of directors or senior management of the Borrower shall be evidenced to the Administrative Agent by promptly filing with the Administrative Agent a certified copy of the resolution of the board of directors or senior management of the Borrower giving effect to such designation or an certificate from an Authorized Officer of the Borrower, certifying that such designation complied with the foregoing conditions. “Receivables Repurchase Obligation” means any obligation of a seller of Receivables in a Qualified Receivables Transaction to repurchase Receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. “Recipient” means (a) the Administrative Agent, and (b) any Lender, as applicable. “Redeemable Stock” of any Person means any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including upon the occurrence of an event) matures or is required to be redeemed (pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time prior to the Maturity Date. “Register” has the meaning assigned to such term in Section 10.04(b)(iv). “Related Business” means (i) any business, services or activities engaged in by any member of the Group on the date of execution this Agreement and (ii) any business in which any member of the Group is engaged, directly or indirectly, that consists primarily of, or are related to, operating, acquiring, developing or constructing any telecommunications services (including, without limitation, fixed and mobile telephony, broadband internet, network-related services, cable television, broadcast content, network- neutral services, electronic, transactional, financial and commercial services related to the provision of telephony or internet services) and related businesses. “Related Parties” means, with respect to any specified Person, such Person’s Affiliates and the respective directors, officers, employees, agents and advisors of such Person and such Person’s Affiliates. “Release” means any depositing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, migrating, leaching, seeping, dumping, placing, discarding, abandonment,
34 or disposing into or through the environment (including abandonment or disposal of any barrel, container or other closed receptacle containing any Hazardous Materials). “Required Lenders” means Lenders having Credit Exposures representing more than 50% of the sum of the total Credit Exposures at such time; provided that, in the event any of the Lenders shall be a Defaulting Lender, then for so long as such Lender is a Defaulting Lender, “Required Lenders” means Lenders (excluding all Defaulting Lenders) having Credit Exposures representing more than 50% of the sum of the total Credit Exposures of such Lenders (excluding all Defaulting Lenders) at such time; provided, further that, prior to the making of the Loans, “Required Lenders” means Lenders having Commitments representing more than 50% of the sum of the total Commitments at such time. “Resolution Authority” means an EEA Resolution Authority or, with respect to any UK Financial Institution, a UK Resolution Authority. “Restricted Cash” means the sum of (i) Restricted MFS Cash and, without duplication, (ii) amount of cash that would be stated as “restricted cash” on the consolidated statement of financial position of any Person, as of such date in accordance with IFRS. “Restricted Group” means the Borrower and the Restricted Subsidiaries. “Restricted MFS Cash” means, as of any date of determination, an amount equal to any cash paid in or deposited by or held on behalf of any customer or dealer of, or any other third party in relation to, one or more members of the Restricted Group, if any, engaged in the provision of mobile financial services and designated as “restricted cash” on the consolidated statement of financial position of such Person, together with any interest thereon. “Restricted Subsidiary” means any Subsidiary of the Borrower other than an Unrestricted Subsidiary. “S&P” means Standard & Poor’s Rating Services, a Standard & Poor’s Financial Services LLC business, and any successor to its rating agency business. “Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter acquired whereby a Person or its Subsidiary transfers such property to another Person and such Person or such Subsidiary leases it from such other Person. “Sanctioned Country” means a country, region or territory which is itself the subject or target of comprehensive, country-, region-, or territory-wide Sanctions Laws, including as of the date hereof Cuba, Iran, Syria, North Korea, and the Crimea region of Ukraine. “Sanctions Laws” means any applicable economic or financial sanctions or trade embargoes, imposed, administered, promulgated, or enforced from time to time by the U.S. government (including without limitation those administered by OFAC), the European Union, Her Majesty’s Treasury, Canada, the United Nations Security Council or other relevant sanctions authority. “SEC” means the Securities and Exchange Commission of the United State of America. “Senior Secured Debt” means, as of any date of determination, any Debt of (a) the Borrower that as of such date is secured by a security interest in any assets of the Borrower or any of its Restricted Subsidiaries and/or (b) any Restricted Subsidiary of the Borrower, other than Debt of the type described in clauses (h), (i), (j), (k), (l) and (o) of the definition of “Permitted Debt”.
35 “Significant Subsidiary” means, at the date of determination, any Restricted Subsidiary that (1) for the most recent Financial Year, accounted for more than ten percent (10%) of Consolidated EBITDA of the Restricted Group or (2) as of the end of the most recent Financial Year, was the owner of more than ten percent (10%) of Total Assets of the Restricted Group. “Signing Date” means the date of execution of this Agreement. “Solvent” means, with respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person is greater than the total amount of liabilities, including contingent liabilities, of such Person, (b) the present fair saleable value of such Person is not less than the amount that will be required to pay the probable liability of such Person on its debts as they become absolute and matured, (c) such Person is generally paying its debts as they become due (whether at maturity or otherwise) and (d) such Person is not engaged in a business or a transaction, and is not about to engage in a business or a transaction, for which such Person’s property would constitute an unreasonably small capital. The amount of any contingent liability at any time shall be computed as the amount that, in light of all of the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability. “Specified Legal Expenses” means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’ fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative). “Specified Subsidiary Sale” means the sale, transfer or other disposition of all of the Capital Stock, or all of the assets or properties of, (a) any Person, the primary purpose of which is to own Tower Equipment located in any market in which any member of the Restricted Group operates; (b) any Person which operates the mobile financial services business of the Restricted Group; (c) MKC Brilliant Services GmbH; or (d) Africa Internet Holding GmbH. “Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by a Person or any Subsidiary of such Person which are reasonably customary in a securitization of Receivables transactions, including, without limitation, those relating to the servicing of the assets of a Receivables Entity, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. “Subsidiary” of any Person means (i) a corporation more than fifty percent (50%) of the combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof. “Take-Out Debt” means (i) any debt securities or bonds (including, without limitation, capital securities, convertible, perpetual or subordinated bonds, and other hybrid securities) or (ii) any Debt for borrowed money (other than (A) in the case of (i), Permitted Refinancing Debt incurred by the Borrower to refinance the Borrower’s outstanding Notes described in clause (iv) and (v) of the definition of “Indentures” and (B) in the case of (ii), (I) Permitted Refinancing Debt of the type described in clause (c) and clause (g) of the definition of “Permitted Debt,” (II) Debt of the type described in paragraph (d) of “Permitted Debt” and any other intra-Group loans and (III) any extension of credit under the MICSA
36 Revolving Facility Agreement) issued, incurred or borrowed by the Borrower (as borrower) or any member of the Comcel Group on or after the Signing Date. “Target Company” means each of the entities comprising the Comcel Group. “Target Shares” means the shares of each Target Company owned by the Seller to be acquired by the Purchasers pursuant to the Acquisition Agreement. “Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other similar charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto. “Total Assets” means the consolidated total assets of the Restricted Group, in each case as shown on the most recent consolidated statement of financial position of the Borrower prepared on the basis of IFRS prior to the relevant date of determination calculated to give pro forma effect to any acquisitions (including through mergers or consolidations) and dispositions that have occurred subsequent to such period, including any such acquisitions to be made with the proceeds of Debt giving rise to the need to calculate Total Assets. “Total Net Leverage Ratio” means, as of any date of determination, the ratio of (i) Consolidated Net Debt outstanding as of such date to (ii) Consolidated EBITDA for the four most recent full fiscal quarters ending immediately prior to such date for which consolidated financial statements are available, in each case determined on a pro forma basis as if (A) any Debt incurred on such date of determination had been incurred and (B) any Debt repaid, redeemed or repurchased on such date of determination had been repaid, redeemed or repurchased at the beginning of such four quarter period. For the avoidance of doubt, in determining the Total Net Leverage Ratio, no cash or Cash Equivalents shall be included that are the proceeds of Debt in respect of which the pro forma calculation is to be made, unless such proceeds are committed to be used for debt repayment or refinancing. “Tower Equipment” means passive infrastructure related to telecommunications services, excluding telecommunications equipment, but including, without limitation, towers (including tower lights and lightning rods), power breakers, deep cycle batteries, generators, voltage regulators, main AC power, rooftop masts, cable ladders, grounding, walls and fences, access roads, shelters, air conditioners and BTS batteries owned by the Borrower or any of its Restricted Subsidiaries. “Transactions” means the execution, delivery and performance by the Borrower of this Agreement and the other Loan Documents, the Borrowing of Loans, the use of the proceeds thereof and the consummation of the Acquisition. “UK Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA Rulebook (as amended from time to time) promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA Handbook (as amended from time to time) promulgated by the United Kingdom Financial Conduct Authority, which includes certain credit institutions and investment firms, and certain affiliates of such credit institutions or investment firms. “UK Resolution Authority” means the Bank of England or any other public administrative authority having responsibility for the resolution of any UK Financial Institution. “Unrestricted Subsidiary” means any Subsidiary of the Borrower designated as such in accordance with the terms of Section 6.07 of this Agreement.
37 “VAT” means: (a) any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112), as amended; and (b) any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere. “Voting Stock” of any person means Capital Stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency. “Weighted Average Life-to-Maturity” means, when applied to any Debt or Preferred Stock at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Debt or liquidation preference of such Preferred Stock, as the case may be, into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal or upon mandatory redemption, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment. “Withdrawal Liability” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA. “Withholding Agent” means the Borrower and the Administrative Agent. “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution Authority, the write-down and conversion powers of such EEA Resolution Authority from time to time under the Bail- In Legislation for the applicable EEA Member Country, which write-down and conversion powers are described in the EU Bail-In Legislation Schedule, and (b) with respect to the United Kingdom, any powers of the applicable Resolution Authority under the Bail-In Legislation to cancel, reduce, modify or change the form of a liability of any UK Financial Institution or any contract or instrument under which that liability arises, to convert all or part of that liability into shares, securities or obligations of that person or any other person, to provide that any such contract or instrument is to have effect as if a right had been exercised under it or to suspend any obligation in respect of that liability or any of the powers under that Bail-In Legislation that are related to or ancillary to any of those powers. Section 1.02 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement, (e) the words “asset” and “property” shall be
38 construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights, (f) the word “regulation” includes any regulation, rule, official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or of any regulatory, self- regulatory or other authority or organization and (g) any reference to any law or regulation herein shall, unless specified, refer to such law or regulation as amended, modified or supplemented from time to time. Section 1.03 Accounting Terms; IFRS. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, IFRS as in effect from time to time, to the extent applicable to the relevant terms, data, ratios and calculations. If there is a change to IFRS that might result in any material alteration in the commercial effect of any of the terms of this Agreement (a “Material IFRS Change”), the Borrower shall notify the Administrative Agent and, if the Administrative Agent so requests, deliver to the Administrative Agent such information as may be reasonably required by the Administrative Agent. If the Borrower notify the Administrative Agent of a Material IFRS Change in accordance with this paragraph, then the Borrower and the Administrative Agent shall enter into negotiations in good faith with a view to agreeing any amendments to this Agreement which may be necessary to ensure that the Material IFRS Change does not result in any material alteration in the commercial effect of the terms of this Agreement, and if any amendments are agreed they shall take effect and be binding on the Borrower and the Credit Parties in accordance with its terms. Section 1.04 Rounding. Any financial ratios required to be satisfied in order for a specific action to be permitted under this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to the same number of decimal places by which such ratio is expressed herein (the “applicable decimal place”) and rounding the result up or down to the applicable decimal place. Section 1.05 Time of Day. Unless otherwise specified, all references herein to times of day shall be references to New York City time (daylight or standard, as applicable). Section 1.06 Currency Equivalents. Except as otherwise specified herein, all references herein or in any other Loan Document to a Dollar amount shall mean such amount in Dollars or, if the context so requires, any monetary amount in a currency other than Dollars, at any time of determination thereof, the amount of Dollars obtained by converting such other currency involved in such computation into Dollars at the spot rate for the purchase of Dollars with the applicable other currency as published in the Financial Times on the date that is two (2) Business Days prior to such determination. Section 1.07 LIBOR Notification. The interest rate on the Loans is determined by reference to the Adjusted LIBO Rate, which is derived from the London interbank offered rate. The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market. In July 2017, the U.K. Financial Conduct Authority (the “FCA”) announced that, after the end of 2021, it would no longer persuade or compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administrator, the “IBA”) for purposes of the IBA setting the London interbank offered rate. On March 5, 2021 the FCA, the regulatory supervisor of IBA, announced in a public statement the future cessation or loss of representativeness of overnight/Spot Next, 1-month, 3-month, 6-month and 12-month tenor settings of the Dollar London interbank reference rate (“USD LIBOR”) as of July 30, 2023. As a result, it is possible that commencing July 30, 2023, the USD LIBOR for such tenors may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on the Loans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to be used in place of USD LIBOR. In the event
39 that USD LIBOR is no longer available or in certain other circumstances as set forth in Section 2.17 of this Agreement, such Section 2.17 provides a mechanism for determining an alternative rate of interest. The Administrative Agent will notify the Borrower, pursuant to Section 2.17, in advance of any change to the reference rate upon Loans bearing interest at the Adjusted LIBO Rate. However, the Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related to the London interbank offered rate or other rates in the definition of “Adjusted LIBO Rate” or with respect to any alternative or successor rate thereto, or replacement rate therefor or thereof, including, without limitation, whether the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 2.17, will be similar to, or produce the same value or economic equivalence of, the Adjusted LIBO Rate or have the same volume or liquidity as did the London interbank offered rate prior to its discontinuance or unavailability. Section 1.08 Cashless Roll. Notwithstanding anything to the contrary contained in this Agreement, any Lender may exchange, continue or rollover all or a portion of its Loans in connection with any refinancing, extension, loan modification or similar transaction permitted by the terms of this Agreement, pursuant to a cashless settlement mechanism approved by the Borrower, the Administrative Agent and such Lender, and any such exchange, continuation or rollover shall be deemed to comply with any requirement hereunder or under any other Loan Document that any payment be made “in Dollars”, “in immediately available funds”, “in cash” or any other similar requirements. Section 1.09 Luxembourg Terms. In the Loan Documents, a reference to (a) a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrator receiver, administrator, sequestrator or similar officer includes (i) any juge-commissaire or insolvency receiver (curateur) appointed under the Luxembourg Commercial Code, (ii) any liquidateur appointed under Articles 1100-1 to 1100-15 (inclusive) of the Luxembourg Companies Act, (iii) any juge-commissaire or liquidateur appointed under Article 1200-1 of the Luxembourg Companies Act, (iv) any commissaire appointed under the Grand-Ducal decree of 24 May 1935 on the controlled management regime or under Articles 593 to 614 (inclusive) of the Luxembourg Commercial Code and (v) any juge délégué appointed under the Luxembourg act of 14 April 1886 on the composition to avoid bankruptcy, as amended; (b) a winding-up, administration or dissolution includes, without limitation, bankruptcy (faillite), voluntary or judicial liquidation (liquidation volontaire ou judiciaire), composition with creditors (concordat préventif de faillite), moratorium or reprieve from payment (sursis de paiement) and controlled management (gestion contrôlée) or similar laws affecting the rights of creditors generally; (c) a Person being unable to pay its debts includes that Person being in a state of cessation of payments (cessation de paiements), (d) constitutional documents includes the coordinated articles of association (statuts coordonnés), (e) a director includes an administrateur. ARTICLE II THE LOANS Section 2.01 Commitments. Subject to the terms and conditions set forth herein, each Lender agrees to make a Loan during the Availability Period to the Borrower to such account of the Borrower as the Borrower may direct from such Lender’s applicable Lending Office in an aggregate principal amount requested by the Borrower which shall not exceed such Lender’s Commitment. Amounts borrowed under Section 2.01 that are repaid or prepaid may not be re-borrowed. Section 2.02 Loans and Borrowings. The Loans shall be made as part of a single Borrowing by the Lenders ratably in accordance with their respective Commitments. The failure of any Lender to make any Loan required to be made by it shall not relieve any other Lender of its obligations hereunder; provided
40 that the Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans as required. Section 2.03 Reserved. Section 2.04 Funding of Borrowing. (a) To request the Borrowing, the Borrower shall deliver a written borrowing request, substantially in the form of Annex C hereto (the “Borrowing Request”). The Borrowing Request shall be irrevocable and binding on the Borrower (except in the event of termination of the Acquisition Agreement prior to the Closing Date) and shall be given to the Administrative Agent no later than 8:00 a.m. (New York time) on the Closing Date. (b) Each Lender shall make the Loan to be made by it hereunder from its applicable Lending Office on the Closing Date by wire transfer of immediately available funds in Dollars to the account of the Administrative Agent designated by it for such purpose by notice to the Lenders. The Administrative Agent will make such Loans available to the Borrower by 4:00 p.m. (New York time) by crediting the amounts so received, in like funds, on the Closing Date by wire transfer in accordance with the instructions set forth in the Borrowing Request. (c) Each Lender may make its Loans through any Lending Office; provided that (i) the making of such Loan through such Lending Office shall not increase the amounts payable by the Borrower under Section 2.11 or 2.13 (unless approved by the Borrower) and (ii) the exercise of this option shall not affect the obligation of the Borrower to repay the Loan in accordance with the terms of this Agreement. (d) Unless the Administrative Agent shall have received notice from a Lender prior to the Closing Date that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with paragraph (a) of this Section and may, in reliance upon such assumption, make available to the Borrower a corresponding principal amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent within five (5) Business Days from the date on which the Administrative Agent made available to the Borrower the corresponding principal amount, then the applicable Lender and the Borrower agrees to pay to the Administrative Agent forthwith on demand such corresponding principal amount with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation or (ii) in the case of a payment to be made by the Borrower, the Adjusted LIBO Rate applicable to the relevant Borrowing; provided, that the obligation of the Borrower to pay interest on the corresponding principal amount shall only apply to the extent that the Administrative Agent has not received the payment of interest thereon from the relevant Lender following demand. If both the Borrower and such Lender shall pay interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of interest paid by the Borrower for such period. If such Lender pays such amount to the Administrative Agent, then such amount shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower hereunder shall be without prejudice to any claim the Borrower may have against a Lender hereunder for failure to fund or thereafter make such payment to the Administrative Agent.
41 Section 2.05 Termination of Commitments. The undrawn Commitments (if any) shall automatically terminate on the earliest to occur of (a) the Closing Date, immediately after giving effect to the funding of the Loans to be made on such date, (b) the expiration of the Availability Period, (c) the termination of the Acquisition Agreement, and (d) prior to the Closing Date, a Mandatory Prepayment Event. Section 2.06 Reserved. Section 2.07 Repayment of Loans; Evidence of Debt. (a) The Borrower hereby unconditionally promises to pay to the Administrative Agent for the account of each Lender the unpaid principal amount of the Loans on the Maturity Date. Each Lender shall maintain in accordance with its usual practice an account or accounts evidencing the indebtedness of the Borrower to such Lender resulting from each Loan made by such Lender, including the amounts of principal and interest payable and paid to such Lender from time to time hereunder. (b) The Administrative Agent shall maintain accounts in which it shall record (i) the amount of each Loan made hereunder, (ii) the amount of any principal or interest due and payable or to become due and payable from the Borrower to each Lender hereunder and (iii) the amount of any sum received by the Administrative Agent hereunder for the account of the Lenders and each Lender’s share thereof. (c) The entries made in the accounts maintained pursuant to paragraph (b) or (c) of this Section shall be prima facie evidence absent manifest error of the existence and amounts of the obligations recorded therein; provided that the failure of any Lender or the Administrative Agent to maintain such accounts or any error therein shall not in any manner affect the obligation of the Borrower to repay the Loans in accordance with the terms of this Agreement. In the event of any conflict between the records maintained by any Lender and the Register, the Register shall control in the absence of manifest error. (d) Any Lender may request through the Administrative Agent that its Loans be evidenced by a promissory note. In such event, the Borrower shall execute and deliver to such Lender a Note, payable to such Lender or its registered assigns. Section 2.08 Prepayment of Loans. (a) Mandatory Prepayments. The Borrower covenants and agrees with the Lenders to prepay the Loans as follows: (i) Change of Control. Upon the occurrence of a Change of Control, if any Lender so requires and notifies the Administrative Agent (with a copy to the Borrower) within 20 days of the Borrower notifying the Administrative Agent of the event pursuant to Section 5.02(d), the Borrower shall within 20 days following receipt of such notice from the Lender, repay the outstanding Loan of such Lender, together with accrued interest and all other amounts owing to such Lender under this Agreement. (ii) Debt and Equity Issuances. In the event of any Equity Issuance or the incurrence of any Take-Out Debt, the Borrower shall, upon at least three (3) Business Days prior written notice to the Administrative Agent (who shall promptly notify the Lenders) and no later than five (5) Business Days following receipt of the Net Proceeds of such
42 Equity Issuance or Take-Out Debt by the Borrower or the relevant member of the Comcel Group, prepay the Loans in an amount equal to 100% of such Net Proceeds. (iii) Disposals. In the event of any disposal of assets by the Borrower or any Restricted Subsidiary of the type described in paragraphs (a), (c), (s), (v), (y) and (aa) of the definition of “Permitted Disposal” or of the type described in (a) or (b) of the definition of “Specified Subsidiary Sale” made after the Signing Date which generates, individually or in the aggregate, when aggregated with all other concurrent disposals of the type described in paragraphs (a), (c), (s), (v), (y) and (aa) of the definition of “Permitted Disposal” or of the type described in (a) or (b) of the definition of “Specified Subsidiary Sale,” Net Proceeds in excess of $150,000,000, the Borrower shall, upon at least three (3) Business Days prior written notice to the Administrative Agent (who shall promptly notify the Lenders) and no later than five (5) Business Days following receipt of such Net Proceeds by the Borrower or any member of the Comcel Group, prepay the Loans in an amount equal to 100% of all such Net Proceeds received in excess of $150,000,000. (iv) Other Debt. The amounts required to be prepaid under Section 2.08(a)(iii) shall be reduced by any ratable portion of such Net Proceeds required to be applied to the repayment of other Debt of the Borrower or any Restricted Subsidiary under the Indentures, to the extent the Indentures include a mandatory prepayment or similar provision that requires such ratable prepayment. (b) Voluntary Prepayments. (i) The Borrower shall have the right at any time and from time to time to prepay the Loans in whole or in part, without premium or penalty (but subject to payment of any amounts required to be paid pursuant to Section 2.12), subject to prior notice in accordance with paragraph (ii) of this Section 2.08(b)(ii). (ii) An Authorized Officer of the Borrower shall notify the Administrative Agent by telephone (confirmed by telecopy) or electronic mail of any prepayment hereunder not later than 1:00 p.m. three (3) Business Days before the date of prepayment. Each such notice shall be irrevocable and shall specify the prepayment date and the principal amount of the Loans to be prepaid. Promptly following receipt of any such notice relating to a Borrowing, the Administrative Agent shall advise the applicable Lenders of the contents thereof. Any partial prepayment of the Loans shall be applied ratably to the outstanding Loans. Section 2.09 Interest. (a) Each Loan shall bear interest at a rate per annum equal at all times during each Interest Period to the sum of the Adjusted LIBO Rate for such Interest Period plus the Applicable Margin. (b) Notwithstanding the foregoing, if an Event of Default under Section 7.01(a) or (b) has occurred and is continuing, all overdue Obligations (which shall include all Obligations following an acceleration of the Loans pursuant to Section 7.01, including an automatic acceleration) shall bear interest, after as well as before judgment, at a rate per annum equal to (i) in the case of overdue principal or interest of any Loan, two percent (2.0%) plus the rate otherwise applicable to such Loan as provided in the preceding paragraphs of this Section or (ii) in the case of any other amount, two percent (2.0%) plus the rate otherwise applicable to ABR Loans; provided
43 that no interest pursuant to this paragraph (b) shall accrue or be payable to a Defaulting Lender so long as such Lender shall be a Defaulting Lender. (c) Accrued interest on each Loan shall be payable in arrears on each Interest Payment Date for such Loan; provided that (i) interest accrued pursuant to paragraph (b) of this Section shall be payable on demand and (ii) in the event of any repayment or prepayment of any Loan, accrued interest on the principal amount repaid or prepaid shall be payable on the date of such repayment or prepayment. (d) All interest hereunder shall be computed on the basis of a year of 360 days, except that interest computed by reference to the Alternate Base Rate at times when the Alternate Base Rate is based on the Prime Rate shall be computed on the basis of a year of 365 days (or 366 days in a leap year), and shall be payable for the actual number of days elapsed (including the first day but excluding the last day). The applicable Adjusted LIBO Rate and Alternate Base Rate shall be determined by the Administrative Agent, and such determination shall be conclusive absent manifest error. Section 2.10 Alternate Rate of Interest; Inability to Determine Rates. Subject to Section 2.17, if prior to the commencement of any Interest Period: (a) deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount, currency and Interest Period of the Loans; (b) the Administrative Agent determines (which determination shall be conclusive absent manifest error) that adequate and reasonable means do not exist for ascertaining the Adjusted LIBO Rate for such Interest Period; provided that, in the case of this clause (ii), no Benchmark Transition Event (as defined in Section 2.17(a)) shall have occurred at such time; or (c) the Administrative Agent is advised by the Required Lenders that the Adjusted LIBO Rate for such Interest Period will not adequately and fairly reflect the cost to such Lenders (or Lender) of making or maintaining its Loans for such Interest Period, then the Administrative Agent shall give prompt notice thereof to the Borrower and the affected Lenders by telephone (such telephonic notice promptly confirmed thereafter by delivery of a written notice) and, during the thirty (30) days next succeeding the giving of such notice, the Borrower and the affected Lenders shall negotiate in good faith in order to arrive at a mutually satisfactory interest rate which shall be applicable during such Interest Period to the Loans. If within such 30-day period, the Borrower and the affected Lenders agree in writing upon an alternative interest rate, such rate shall be effective from the commencement and for the duration of such Interest Period until such time as the circumstances giving rise to such notice cease to apply at the commencement of a new Interest Period. If the Borrower and the affected Lenders fail to agree upon such an alternative interest rate within such 30-day period, the interest rate during such Interest Period applicable to such Loans effective from the commencement and for the duration of such Interest Period until such time as the circumstances giving rise to such notice cease to apply at the commencement of a new Interest Period shall be the Alternate Base Rate plus the Applicable Margin (with the utilization of the LIBOR Market Index Rate component in determining the Alternate Base Rate being suspended). Section 2.11 Increased Costs. (a) If any Change in Law shall: (i) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge, liquidity or similar requirement against assets of,
44 deposits with or for the account of, or credit extended by, any Lender (except any such reserve requirement reflected in the Adjusted LIBO Rate); (ii) impose on any Lender or the London interbank market any other condition, cost or expense (other than Taxes) affecting this Agreement or Loans made by such Lender or any participation therein; or (iii) subject any Recipient to any Taxes (other than (A) Indemnified Taxes, (B) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (C) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of maintaining any Loan or to reduce the amount of any sum received or receivable by such Lender or such other Recipient hereunder (whether of principal, interest or otherwise), then upon request of such Lender or other Recipient, the Borrower will pay to such Lender or such other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or such other Recipient, as the case may be, for such additional costs incurred or reduction suffered; provided, that the Borrower shall not be obligated to pay any such compensation unless the Lender or other Recipient requesting such compensation is also requesting compensation as a result of such Change in Law from other similarly situated customers under agreements relating to similar credit transactions that include provisions similar to this Section 2.11. (b) If any Lender determines that any Change in Law affecting such Lender or any Lending Office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy and liquidity), then from time to time the Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender for any such reduction suffered; provided, that the Borrower shall not be obligated to pay any such compensation unless the Lender or other Recipient requesting such compensation is also requesting compensation as a result of such Change in Law from other similarly situated customers under agreements relating to similar credit transactions that include provisions similar to this Section 2.11. (c) A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within sixty (60) days after receipt thereof. (d) Failure or delay on the part of any Lender to demand compensation pursuant to the provisions of Sections 2.11, shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to the provisions of Sections 2.11 for any increased costs incurred or reductions suffered more than 270 days prior to the date that such Lender notifies the Borrower of the event giving rise to such increased costs or reductions and of such Lender’s intention to claim compensation therefor; provided further that, if the event giving rise to such increased costs or reductions is retroactive,
45 then the 270-day period referred to above shall be extended to include the period of retroactive effect thereof. Section 2.12 Break Funding Payments. In the event of (a) the payment of any principal of any Loan other than on the last day of an Interest Period applicable thereto (including as a result of an Event of Default), (b) the failure to borrow or prepay any Loan on the date specified in any notice delivered pursuant hereto (regardless of whether such notice may be revoked under Section 2.07(b) and is revoked in accordance therewith), or (c) the assignment of any Loan other than on the last day of the Interest Period applicable thereto as a result of a request by the Borrower pursuant to Section 2.15, then, in any such event, the Borrower shall compensate each Lender for the loss, cost and expense attributable to such event (excluding loss of profits). In the case of a Loan, such loss, cost or expense to any Lender shall be deemed to be the amount determined by such Lender to be the excess, if any, by which (i) the amount of interest which would have accrued on the principal amount of such Loan had such event not occurred, at the Adjusted LIBO Rate, as applicable, that would have been applicable to such Loan, for the period from the date of such event to the last day of the then current Interest Period therefor (or, in the case of a failure to borrow, for the period that would have been the Interest Period for such Loan), exceeds (ii) the amount of interest which would accrue on such principal amount for such period at the interest rate which such Lender would bid were it to bid, at the commencement of such period, for Dollar deposits of a comparable amount and period from other banks in the eurodollar market. A certificate of any Lender setting forth any amount or amounts that such Lender is entitled to receive pursuant to this Section shall be delivered to the Borrower and shall be conclusive absent manifest error. The Borrower shall pay such Lender the amount shown as due on any such certificate within sixty (60) days after receipt thereof. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that the Borrower shall not be required to compensate a Lender pursuant to this Section for any amount incurred more than sixty (60) days prior to the date that such Lender notifies the Borrower of such Lender’s claim for compensation therefor. Section 2.13 Payments Free of Taxes. (a) Any and all payments by or on account of any obligation of the Borrower under any Loan Document shall be made without deduction or withholding for any Taxes, except as required by applicable Law. If any applicable Law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable Law and, if such Tax is an Indemnified Tax, then the sum payable by the Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section 2.13) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made. (b) Payment of Other Taxes by the Borrower. The Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable Law, or at the option of the Administrative Agent timely reimburse it for the payment of, any Other Taxes. (c) Evidence of Payments. Within thirty (30) days after the date of any payment of Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.13 (or, if receipts or evidence are not available within 30 days, as soon as practicable thereafter), the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.
46 (d) Indemnification. The Borrower shall indemnify each Recipient, within sixty (60) days after written demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 2.13) payable or paid by such Recipient and any documented and reasonable expenses arising therefrom or with respect thereto, or required to be withheld or deducted from a payment to such Recipient, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. Without limiting the obligation of the Borrower to indemnify Indemnified Taxes hereunder except as expressly set forth in this paragraph (d), a Recipient claiming indemnity pursuant to this Section 2.13(d) shall notify the Borrower of the imposition of the relevant Indemnified Taxes as soon as reasonably practicable after the Recipient becomes aware of such imposition. The Borrower shall not be required to compensate any Recipient pursuant to this Section 2.13(d) for any interest, additions to tax or penalties that accrue more than 270 days prior to the date that such Recipient notifies the Borrower of the imposition of the relevant Indemnified Taxes. A certificate as to the amount of such payment or liability delivered to the Borrower by a Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a Lender, shall be conclusive absent manifest error. (e) Indemnification by the Lenders. Each Lender shall severally indemnify the Administrative Agent, within sixty (60) days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that the Borrower has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 10.04(c) relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any documented and reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent to the Lender from any other source against any amount due to the Administrative Agent under this paragraph (e). (f) Status of Lenders. (i) Any Recipient that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Recipient, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable Law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Recipient is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation shall not be required if in the Recipient’s reasonable judgment such completion, execution or submission would subject such Recipient to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Recipient.
47 (ii) If a payment made to a Recipient would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Recipient shall deliver to the Borrower and the Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (ii), “FATCA” shall include any amendments made to FATCA after the date of this Agreement. Each Lender agrees that if any such form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so. (g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes (for this purpose, including any credit against, relief or remission for, or repayment of any Tax (a “Tax Credit”), in each case, in lieu of a refund) as to which it has been indemnified pursuant to this Section 2.13 (including by the payment of additional amounts pursuant to this Section 2.13), it shall pay to the indemnifying party an amount equal to such refund (but (x) only to the extent of indemnity payments made under this Section 2.13 with respect to the Taxes giving rise to such refund or Tax Credit and (y), with respect to any Tax Credit, only to the extent such party has obtained, utilized and retained such Tax Credit), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g) in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund or Tax Credit had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person. (h) VAT. All amounts set out in, or expressed to be payable under, a Loan Document by any party to a Credit Party which (in whole or in part) constitute the consideration for any supply for VAT purposes are deemed to be exclusive of any VAT which is chargeable on that supply, and accordingly, subject to the second paragraph of this Section 2.17(h), if VAT is chargeable on any supply made by any Credit Party to any party under a Loan Document and such Credit Party is required to account to the relevant tax authority for the VAT, such Credit Party shall promptly provide an appropriate VAT invoice to such party and, provided that such an invoice has been provided, that party shall pay to such Credit Party (in addition to and at the same time as paying any other consideration for such supply) or, according with the Council Directive 2006/112/EC as
48 amended, an amount equal to the amount of the VAT or, where applicable, directly account for such VAT at the appropriate rate under the reverse charge procedure provided for by Article 196 of Council Directive 2006/112/EC, as amended and implemented by any relevant member state of the European Union. If VAT is or becomes chargeable on any supply made by any Credit Party (the Supplier) to any other Credit Party (the Recipient) under a Loan Document, and any party other than the Recipient (the Relevant Party) is required by the terms of any Loan Document to pay an amount equal to the consideration for that supply to the Supplier (rather than being required to reimburse or indemnify the Recipient in respect of that consideration): (i) (where the Supplier is the person required to account to the relevant tax authority for the VAT) the Relevant Party shall also pay to the Supplier (at the same time as paying that amount) an additional amount equal to the amount of the VAT. The Recipient shall (where this paragraph (i) applies) promptly pay to the Relevant Party an amount equal to any credit or repayment the Recipient receives from the relevant tax authority which the Recipient reasonably determines relates to the VAT chargeable on that supply; and. (ii) (where the Recipient is the person required to account to the relevant tax authority for the VAT) the Relevant Party shall promptly, following demand from the Recipient, pay to the Recipient an amount equal to the VAT chargeable on that supply but only to the extent that the Recipient reasonably determines that it is not entitled to credit or repayment from the relevant tax authority in respect of that VAT. Where a Loan Document requires any party to reimburse or indemnify a Credit Party for any costs or expenses, that party shall also at the same time reimburse or indemnify (as the case may be) the Credit Party against all VAT incurred by the Credit Party in respect of such costs or expenses but only to the extent that the Credit Party (reasonably) determines that it is not entitled to credit or repayment from the relevant tax authority in respect of the VAT. Any reference in this clause (h) to any party shall, at any time when that party is treated as a member of a group or unity (or fiscal unity) for VAT purposes, include (where appropriate and unless the context otherwise requires) a reference to the person who is treated at that time as making the supply, or (as appropriate) receiving the supply, under the grouping rules (provided for in Article 11 of Council Directive 2006/112/EC as amended (or as implemented by any relevant member state of the European Union)) so that a reference to a party shall be construed as a reference to that party or the relevant group or unity (or fiscal unity) of which that party is a member for VAT purposes at the relevant time or the relevant representative member (or representative or head) of that group or unity at the relevant time (as the case may be). In relation to any supply made by a Credit Party to any party under a Loan Document, if reasonably requested by such Credit Party, that party shall promptly provide such Credit Party with details of that party's VAT registration and such other information as is reasonably requested in connection with such Credit Party's VAT reporting requirements in relation to such supply. (i) Survival. Each party’s obligations under this Section 2.13 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Commitments and the repayment, satisfaction or discharge of all obligations under any Loan Document.
49 (j) Defined Terms. For purposes of this Section 2.13, the term “applicable law” includes FATCA. Section 2.14 Payments Generally; Pro Rata Treatment; Sharing of Set-offs. (a) The Borrower shall make each payment required to be made by it hereunder prior to 1:00 p.m. (or such later time as the Administrative Agent may agree), on the date when due, in immediately available funds, without set off or counterclaim. Any amounts received after such time on any date may, in the discretion of the Administrative Agent, be deemed to have been received on the next succeeding Business Day for purposes of calculating interest thereon. All such payments shall be made to the accounts of the Administrative Agent most recently designated by it for payments, except that payments pursuant to Sections 2.11, 2.12, 2.13 and 10.03 shall be made directly to the Persons entitled thereto. The Administrative Agent shall distribute any such payments received by it for the account of any other Person to the appropriate recipient promptly following receipt thereof. If any payment hereunder shall be due on a day that is not a Business Day, the date for payment shall be extended to the next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon shall be payable for the period of such extension. All payments hereunder shall be made in Dollars. Each payment (including each prepayment) by the Borrower on account of principal of, and interest on, the Loans shall be applied pro rata according to the respective Applicable Percentages of the Lenders. (b) If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, interest and fees then due hereunder, such funds shall be applied (i) first, towards payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii) second, towards payment of principal then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal then due to such parties. (c) If any Lender shall, by exercising any right of set off or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans resulting in such Lender receiving payment of a greater proportion of the aggregate amount of its Loans and accrued interest thereon than the proportion received by any other Lender, then the Lender receiving such greater proportion shall purchase (for cash at face value) participations in the Loans of other Lenders to the extent necessary so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on its respective Loans; provided that (i) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest, and (ii) the provisions of this paragraph shall not be construed to apply to any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions of this paragraph shall apply). The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable Law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of set-off and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation. (d) Unless the Administrative Agent shall have received notice from the Borrower prior to the date on which any payment is due to the Administrative Agent for the account of the Lenders hereunder that the Borrower will not make such payment, the Administrative Agent may
50 assume that the Borrower have made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if the Borrower have not in fact made such payment, then each of the Lenders severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Effective Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation. (e) If any Lender shall fail to make any payment required to be made by it pursuant to Section 2.04(b), Section 2.13(d) or Section 10.03(c), then the Administrative Agent may, in its discretion and notwithstanding any contrary provision hereof, (i) apply any amounts thereafter received by the Administrative Agent for the account of such Lender to satisfy such Lender’s obligations under such Sections until all such unsatisfied obligations are fully paid, and/or (ii) hold such amounts in a segregated account over which the Administrative Agent shall have exclusive control as cash collateral for, and application to, any future funding obligations of such Lender under any such Section, in the case of each of clause (i) and (ii) above, in any order as determined by the Administrative Agent in its discretion. Section 2.15 Mitigation Obligations; Replacement of Lenders. (a) If any Lender requests compensation under Section 2.11, or if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, then such Lender shall use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section 2.11 or Section 2.13, as the case may be, in the future and (ii) would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The Borrower hereby agree to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment. (b) If (i) any Lender requests compensation under Section 2.11, or (ii) if the Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.13, or (iii) if any Lender becomes Defaulting Lender, or (iv) any Lender has refused to consent to any proposed amendment, modification, waiver, termination or consent with respect to any provision of this Agreement or any other Loan Document that, pursuant to Section 10.02, requires the consent of all Lenders or each Lender affected thereby and with respect to which Lenders constituting the Required Lenders have consented to such proposed amendment, modification, waiver, termination or consent, or (v) any Lender delivers a notification pursuant to Section 2.18 regarding its ability to make or maintain Loans, or (vi) any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto, then the Borrower may (A) in the case of a Defaulting Lender or a Lender that is unable to make or maintain Loans, terminate the relevant Lender’s Commitment and (B) in the case of any such Lender (including any Defaulting Lender or a Lender that is unable to make or maintain Loans), upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 10.04), all its interests, rights (other than its existing rights to payments pursuant to Sections 2.11 or 2.13) and obligations under this Agreement to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that (1) the Borrower shall have received the prior written
51 consent of the Administrative Agent, which consent shall not be unreasonably withheld, conditioned or delayed (unless such assignment is to an existing Lender or an Affiliate of an existing Lender that would otherwise not require the Borrower’s consent under Section 10.04), (2) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder, from the assignee (to the extent of such outstanding principal and accrued interest and fees) or the Borrower (in the case of all other amounts; provided, that, in the case of any Defaulting Lender, the Borrower shall be entitled to offset any expenses resulting from such Lender having been a Defaulting Lender and such assignment from any amounts payable by the Borrower to the Defaulting Lender hereunder), (3) in the case of any such assignment resulting from a claim for compensation under Section 2.11 or payments required to be made pursuant to Section 2.13, such assignment will result in a reduction in such compensation or payments, and (4) in the case of any such assignment resulting from a Lender’s refusal to consent to a proposed amendment, modification, waiver, termination or consent, the assignee shall approve the proposed amendment, modification, waiver, termination or consent. A Lender shall not be required to make any such assignment and delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Notwithstanding anything in this Section to the contrary, the Lender that acts as the Administrative Agent may not be replaced in its capacity as Administrative Agent hereunder except in accordance with the terms of Article VIII. Section 2.16 Defaulting Lenders. (a) Notwithstanding any provision of this Agreement to the contrary, if any Lender becomes a Defaulting Lender, then, for so long as such Lender is a Defaulting Lender, the Commitment of such Defaulting Lender shall not be included in determining whether the Required Lenders have taken or may take any action hereunder (including any consent to any amendment, waiver or other modification pursuant to Section 10.02). (b) Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article VII or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 10.08 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; third, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of all non-Defaulting Lenders on a pro rata
52 basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Commitments, without giving effect to Section 2.16(a). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this Section 2.16(c) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto. Section 2.17 Effect of Benchmark Transition Event. (a) Defined Terms. As used in this Section 2.17, the following terms have the following meanings: “Available Tenor” means, as of any date of determination and with respect to the then-current Benchmark, as applicable, any tenor for such Benchmark or payment period for interest calculated with reference to such Benchmark, as applicable, that is or may be used for determining the length of an Interest Period pursuant to this Agreement as of such date. “Benchmark” means, initially, USD LIBOR; provided that if a replacement of USD LIBOR or the then-current Benchmark has occurred pursuant to this Section 2.17, then “Benchmark” means the applicable Benchmark Replacement to the extent that such Benchmark Replacement has replaced such prior benchmark rate pursuant to this Section 2.17. Any reference to “Benchmark” shall include, as applicable, the published component used in the calculation thereof. “Benchmark Replacement” means, for any Available Tenor: (1) For purposes of clause (b)(i) of this Section 2.17, the first alternative set forth below that can be determined by the Administrative Agent: (a) the sum of: (i) Term SOFR and (ii) 0.42826% (42.826 basis points) for an Available Tenor of six-months’ duration, or (b) the sum of: (i) Daily Simple SOFR and (ii) the spread adjustment selected or recommended by the Relevant Governmental Body for the replacement of the tenor of USD LIBOR with a SOFR-based rate having approximately the same length as the interest payment period specified in clause (a) of this Section; and (2) for purposes of clause (b)(ii) of this Section 2.17, the sum of: (a) the alternate benchmark rate and (b) an adjustment (which may be a positive or negative value or zero), in each case, that has been selected by the Administrative Agent and the Borrower as the replacement for such Available Tenor of such Benchmark giving due consideration to any evolving or then-prevailing market convention, including any applicable recommendations made by the Relevant Governmental Body, for U.S. dollar-denominated syndicated credit facilities at such time; provided that, if the Benchmark Replacement as determined pursuant to clause (1) or (2) above would be less than the Floor, the Benchmark Replacement will be deemed to be the Floor for the purposes of this Agreement and the other Loan Documents. “Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “ABR,” the definition of “Business Day,” the definition of “Interest Period,” timing and frequency of
53 determining rates and making payments of interest, timing of borrowing requests or prepayment, conversion or continuation notices, length of lookback periods, the applicability of breakage provisions, and other technical, administrative or operational matters) that the Administrative Agent decides in consultation with the Borrower may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides in consultation with the Borrower that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of such Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides in consultation with the Borrower is reasonably necessary in connection with the administration of this Agreement and the other Loan Documents). “Benchmark Transition Event” means, with respect to any then-current Benchmark other than USD LIBOR, the occurrence of a public statement or publication of information by or on behalf of the administrator of the then-current Benchmark, the regulatory supervisor for the administrator of such Benchmark, the Board of Governors of the Federal Reserve System, the Federal Reserve Bank of New York, an insolvency official with jurisdiction over the administrator for such Benchmark, a resolution authority with jurisdiction over the administrator for such Benchmark or a court or an entity with similar insolvency or resolution authority over the administrator for such Benchmark, announcing or stating that (a) such administrator has ceased or will cease on a specified date to provide all Available Tenors of such Benchmark, permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide any Available Tenor of such Benchmark or (b) all Available Tenors of such Benchmark are or will no longer be representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored. “Corresponding Tenor” with respect to any Available Tenor means, as applicable, either a tenor (including overnight) or an interest payment period having approximately the same length (disregarding business day adjustment) as such Available Tenor. “Daily Simple SOFR” means, for any day, SOFR, with the conventions for this rate (which will include a lookback) being established by the Administrative Agent in accordance with the conventions for this rate selected or recommended by the Relevant Governmental Body for determining “Daily Simple SOFR” for syndicated business loans; provided, that if the Administrative Agent decides that any such convention is not administratively feasible for the Administrative Agent, then the Administrative Agent may establish another convention in consultation with the Borrower. “Early Opt-in Effective Date” means, with respect to any Early Opt-in Election, the sixth (6th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, so long as the Administrative Agent has not received, by 5:00 p.m. (New York City time) on the fifth (5th) Business Day after the date notice of such Early Opt-in Election is provided to the Lenders, written notice of objection to such Early Opt-in Election from Lenders comprising the Required Lenders. “Early Opt-in Election” means, if the then-current Benchmark is USD LIBOR, the occurrence of: (1) a notification by the Administrative Agent to (or the request by the Borrower to the Administrative Agent to notify) each of the other parties hereto that at least five currently outstanding Dollar- denominated syndicated credit facilities at such time contain (as a result of amendment or as originally executed) a SOFR-based rate (including SOFR, a Term SOFR or any other rate based
54 upon SOFR) as a benchmark rate (and such syndicated credit facilities are identified in such notice and are publicly available for review), and (2) the joint election by the Administrative Agent and the Borrower to trigger a fallback from USD LIBOR and the provision by the Administrative Agent of written notice of such election to the Lenders. “Floor” means the benchmark rate floor, if any, provided in this Agreement initially (as of the execution of this Agreement, the modification, amendment or renewal of this Agreement or otherwise) with respect to USD LIBOR. “Reference Time” with respect to any setting of the then-current Benchmark means (1) if such Benchmark is USD LIBOR, 11:00 a.m. (London time) on the day that is two London banking days preceding the date of such setting, and (2) if such Benchmark is not USD LIBOR, the time determined by the Administrative Agent in its reasonable discretion. “Relevant Governmental Body” means the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Board of Governors of the Federal Reserve System or the Federal Reserve Bank of New York, or any successor thereto. “SOFR” means, with respect to any Business Day, a rate per annum equal to the secured overnight financing rate for such Business Day published by the SOFR Administrator on the SOFR Administrator’s Website on the immediately succeeding Business Day. “SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the secured overnight financing rate). “SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, currently at http://www.newyorkfed.org, or any successor source for the secured overnight financing rate identified as such by the SOFR Administrator from time to time. “Term SOFR” means, for the applicable Corresponding Tenor as of the applicable Reference Time, the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body. “USD LIBOR” means the London interbank offered rate for Dollars. (b) Benchmark Replacement. (i) On the earliest of (i) the date that all Available Tenors of USD LIBOR have either permanently or indefinitely ceased to be provided by IBA or have been announced by the FCA pursuant to public statement or publication of information to be no longer representative, (ii) June 30, 2023 and (iii) the Early Opt-in Effective Date, if the then-current Benchmark is USD LIBOR, the Benchmark Replacement will replace such Benchmark for all purposes hereunder and under any Loan Document in respect of any setting of such Benchmark on such day and all subsequent settings without any amendment to, or further action or consent of any other party to this Agreement or any other Loan Document. If the Benchmark Replacement is Daily Simple SOFR, all interest payments will be payable on a quarterly basis.
55 (ii) Upon the occurrence of a Benchmark Transition Event, the Benchmark Replacement will replace the then-current Benchmark for all purposes hereunder and under any Loan Document in respect of any Benchmark setting at or after 5:00 p.m. (New York time) on the fifth (5th) Business Day (New York time) after the date notice of such Benchmark Replacement is provided to the Lenders and the Borrower without any amendment to, or further action or consent of any other party to, this Agreement or any other Loan Document so long as the Administrative Agent has not received, by such time, written notice of objection to such Benchmark Replacement from Lenders comprising the Required Lenders. At any time that the administrator of the then-current Benchmark has permanently or indefinitely ceased to provide such Benchmark or such Benchmark has been announced by the regulatory supervisor for the administrator of such Benchmark pursuant to public statement or publication of information to be no longer representative of the underlying market and economic reality that such Benchmark is intended to measure and that representativeness will not be restored, the Borrower may elect that any Loans that would bear interest by reference to such Benchmark bear interest at the Alternate Base Rate plus the Applicable Margin until the Borrower’s receipt of notice from the Administrative Agent that a Benchmark Replacement has replaced such Benchmark. During the period referenced in the foregoing sentence, the component of the Alternate Base Rate based upon the Benchmark will not be used in any determination of the Alternate Base Rate. (c) Benchmark Replacement Conforming Changes. In connection with the implementation and administration of a Benchmark Replacement, the Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time and, notwithstanding anything to the contrary herein or in any other Loan Document, any amendments implementing such Benchmark Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement or any other Loan Document (except for the consultation rights of the Borrower described in the definition of “Benchmark Replacement Conforming Changes”). (d) Notices; Standards for Decisions and Determinations. The Administrative Agent will promptly notify the Borrower and the Lenders of (i) any occurrence of a Benchmark Transition Event, (ii) the implementation of any Benchmark Replacement and (iii) the effectiveness of any Benchmark Replacement Conforming Changes. Any determination, decision or election that may be made by the Administrative Agent or, if applicable, any Lender (or group of Lenders) pursuant to this Section 2.17 including any determination with respect to a tenor, rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error and may be made in its or their sole discretion and without consent from any other party to this Agreement or any other Loan Document, except, in each case, as expressly required pursuant to this Section 2.17. (e) Unavailability of Tenor Benchmark. Notwithstanding anything to the contrary herein or in any other Loan Document, at any time (including in connection with the implementation of a Benchmark Replacement), (i) if the then-current Benchmark is a term rate (including Term SOFR or USD LIBOR) and either (A) any tenor for such Benchmark is not displayed on a screen or other information service that publishes such rate from time to time as selected by the Administrative Agent in its reasonable discretion or (B) the regulatory supervisor for the administrator of such Benchmark has provided a public statement or publication of information announcing that any tenor for such Benchmark is or will be no longer representative, then the Administrative Agent may modify the definition of “Interest Period” for any Benchmark settings at or after such time to remove such unavailable or non-representative tenor and (ii) if a
56 tenor that was removed pursuant to clause (i) above either (A) is subsequently displayed on a screen or information service for a Benchmark (including a Benchmark Replacement) or (B) is not, or is no longer, subject to an announcement that it is or will no longer be representative for a Benchmark (including a Benchmark Replacement), then the Administrative Agent may modify the definition of “Interest Period” for all Benchmark settings at or after such time to reinstate such previously removed tenor. Section 2.18 Illegality. (a) If any Lender determines that any Change in Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to determine or charge interest rates based upon the Adjusted LIBO Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, upon notice thereof by such Lender to the Borrower (through the Administrative Agent), (i) any obligation of such Lender to make or maintain Loans the interest rate on which is determined by reference to the Adjusted LIBO Rate shall be suspended, and (ii) the interest rate on which such Loan shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Market Index Rate component of the Alternate Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (i) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or elect that the Loan of such Lender bear interest at the Alternate Base Rate plus the Applicable Margin (the interest rate on which shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the LIBOR Market Index Rate component of the Alternate Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain its Loan to such day, or immediately, if such Lender may not lawfully continue to maintain its Loan and (ii) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the LIBOR Market Index Rate component of the Alternate Base Rate with respect to any ABR Loan, the Administrative Agent shall during the period of such suspension compute the Alternate Base Rate applicable to such Lender without reference to the LIBOR Market Index Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the LIBOR Market Index Rate or the Adjusted LIBO Rate. Upon any such prepayment, the Borrower shall also pay accrued interest on the amount so prepaid, together with any additional amounts required pursuant to Section 2.11. (b) Each Lender agrees to designate a different Lending Office if such designation will avoid the need for any notice described in Sections 2.18(a) and will not, in the good faith judgment of such Lender, otherwise be materially disadvantageous to such Lender or increase the amounts payable by the Borrower under Section 2.11 or Section 2.13 (unless approved by the Borrower). Upon any prepayment or conversion pursuant to Sections 2.18(a), the Borrower shall also pay accrued interest on the amount so prepaid or converted and all amounts due, if any, in connection with such prepayment and conversion. Section 2.19 Financial Calculations for Limited Condition Transactions. (a) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Agreement which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Borrower, be
57 deemed satisfied, so long as no Default or Event of Default, as applicable, exists on the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is executed. For the avoidance of doubt, if the Borrower has exercised its option under the first sentence of this paragraph (a), and any Default or Event of Default occurs following the date such definitive agreement for a Limited Condition Transaction is executed and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder. (b) In connection with any action being taken in connection with a Limited Condition Transaction for purposes of: (1) determining compliance with any provision of this Agreement which requires the calculation of the Total Net Leverage Ratio; or (2) testing baskets set forth in this Agreement (including baskets measured as a percentage of Total Assets); in each case, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (the “LCT Test Date”); provided, however, that the Borrower shall be entitled to subsequently elect, in its sole discretion, the date of consummation of such Limited Condition Transaction instead of the LCT Test Date as the applicable date of determination, and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Debt and the use of proceeds thereof), as are appropriate and consistent with the pro forma adjustment provisions set forth in the definitions of “Consolidated EBITDA” and “Total Net Leverage Ratio”, the Borrower or any Restricted Subsidiary could have taken such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. (c) If the Borrower has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, test or basket availability under this Agreement (including with respect to the incurrence of Debt or Liens, or the making of Permitted Disposals, acquisitions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Borrower or any Restricted Subsidiary or the designation of an Unrestricted Subsidiary) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Debt and the use of proceeds thereof) have been consummated. Section 2.20 Extension of Maturity Date. (a) Extension. So long as no Default or Event of Default exists, the Borrower may, by notice to the Administrative Agent (who shall promptly notify the Lenders) not earlier than forty five (45) days prior to the Maturity Date but not later than thirty (30) days prior to the date of the proposed extension (the date of such proposed extension, the “Extension Date”), extend the
58 Maturity Date to a date that is six (6) months after the Maturity Date (the “Extended Maturity Date”). The Borrower may make no more than one (1) such request for extension. (b) Conditions to Extension. The extension of the Maturity Date pursuant to this Section 2.20 shall be subject to (i) each Lender receiving on or before the original Maturity Date payment of the Extension Fee in accordance with the Lender Fee Letter and (ii) on the Maturity Date, immediately prior, and after giving effect, to such extension, no Default or Event of Default exists. ARTICLE III REPRESENTATIONS AND WARRANTIES The Borrower represents and warrants to the Lenders that: Section 3.01 Organization; Powers. The Borrower is duly organized and validly existing under the laws of the jurisdiction of its organization. The Borrower and each of its Significant Subsidiaries has all requisite power to own its assets and carry on its business as it is now being conducted. Section 3.02 Power and Authority; Enforceability. The Borrower has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into, performance and delivery of, the Loan Documents and the Transactions. Each Loan Document constitutes a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law. Section 3.03 Validity and Admissibility into Evidence. All consents, approvals, resolutions, licenses, exemptions, filings, notarizations or registrations required or desirable to (a) enable the Borrower to lawfully enter into, and perform its obligations under, the Loan Documents and (b) to make the Loan Documents admissible in evidence in its jurisdiction of organization, have been obtained or effected and are in full force and effect. Section 3.04 Non-Conflict with Other Obligations. The entry into and performance by the Borrower of the Loan Documents, and the Transactions, do not and will not conflict with (a) any law or regulation applicable to it; or (b) its constitutional documents; or (c) any agreement or other instrument binding upon it or any of its assets, except where any violation of any such agreement or instrument, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. Section 3.05 Financial Statements; No Material Adverse Change. (a) The audited consolidated financial statements of the Borrower and its Subsidiaries for the Financial Year ended December 31, 2020 and the unaudited consolidated quarterly financial statements of the Borrower and its Subsidiaries for the Financial Quarter ended June 30, 2021 (a) were prepared in accordance with IFRS consistently applied and (b) fairly represent the financial condition and operations of the Borrower and its Subsidiaries on a consolidated basis for the relevant periods covered thereby. (b) Since December 31, 2020, no Material Adverse Effect has occurred. Section 3.06 Properties; Intellectual Property.
59 (a) The Borrower has good title to, or valid leasehold interests in, all its real and personal property material to its business, except for such defects in title that, either individually or in the aggregate, do not interfere with its ability to conduct its business as currently conducted or to utilize such properties for its intended purposes or except where the failure to do so would not reasonably be expected to result in a Material Adverse Effect. (b) (i) The Borrower and each of the Borrower’s Significant Subsidiaries is the sole and beneficial owner of, or has licensed to it on standard commercial terms, all the trademarks, tradenames, domain names, copyrights, patents, trade secrets, proprietary know-how and other intellectual property (collectively, “Intellectual Property”) which is material in the context of its business or which is reasonably required by it in order to carry on its business as it is now being conducted or as it is currently proposed to be conducted; (ii) neither the Borrower nor any of its Significant Subsidiaries infringes or violates any Intellectual Property of any Person in carrying out its respective businesses, or in connection with offering or providing its respective products or services; (iii) to the best of the Borrower’s knowledge and belief, no Person is infringing or violating any owned Material Intellectual Property; and (iv) the Borrower and each of its Significant Subsidiaries has taken all actions (including payment of fees) reasonably required to obtain, preserve, renew and maintain all Material Intellectual Property owned by it, except, in the case of (i), (ii), (iii) and (iv), where any failure to be so, or do so, or to have done so has not resulted in, or would not reasonably be expected to result in, a Material Adverse Effect. Section 3.07 Litigation. Except as disclosed in the financial statements referred to in Section 3.05(a), no Proceeding which, if adversely determined, would reasonably be expected to result in a Material Adverse Effect, has been commenced or, to the best of the Borrower’s knowledge and belief are threatened against, the Borrower or any of its Significant Subsidiaries. Section 3.08 Compliance with Laws; Environmental Compliance; No Default or Event of Default. (a) The Borrower and each of its Significant Subsidiaries is and has been in compliance with all Laws of any Governmental Authority applicable to it or its property, except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. (b) The Borrower and each of its Significant Subsidiaries is and has been in compliance with all Environmental Laws and all other permits, licenses, authorizations, covenants, conditions, restrictions or agreements directly or indirectly concerned with Environmental Laws or any Release (i) in connection with any real property which is or was at any time owned, leased or occupied by such Person or on which such Person has conducted any activity, or (ii) for which the Borrower is or has been alleged to be responsible, except where failure to do so would not reasonably be expected to result in a Material Adverse Effect. (c) There are no pending or, to the knowledge of the Borrower, threatened Proceedings against or affecting the Borrower or any of its Significant Subsidiaries concerning any actual or alleged Environmental Liabilities, including any Proceedings relating to any current or former businesses, operations, properties, or locations owned, leased, occupied, or used by the Borrower or any of its Significant Subsidiaries, and to the knowledge of the Borrower, there are no facts, circumstances, or conditions that could reasonably be expected to form the basis of any such
60 Proceedings or any Environmental Liabilities, except in each case as would not reasonably be expected to result in a Material Adverse Effect. (d) No Default or Event of Default has occurred and is continuing. (e) As of the Closing Date, no event or circumstance exists that has had, or would reasonably be expected to have, a material adverse effect on the business, assets, operations, or financial condition of the Borrower and its Subsidiaries taken as a whole. (f) No other event or circumstance is outstanding which constitutes a default under any material agreement or instrument which is binding on the Borrower or any of its Significant Subsidiaries, or to which any such Person’s assets are subject which has resulted in, or would reasonably be expected to result in, a Material Adverse Effect (g) The Borrower is not in default under the Acquisition Agreement. All of the conditions required to be satisfied under the Acquisition Agreement for the consummation of the Acquisition have been, or concurrently with the funding of the Loans hereunder are reasonably expected to be, satisfied or waived in accordance with the Acquisition Agreement. Section 3.09 Investment Company Status. The Borrower is not an “investment company” as defined in, or subject to regulation under, the Investment Company Act of 1940. Section 3.10 Taxes. As of the Closing Date, the Borrower is tax resident only in Luxembourg, which is the jurisdiction of the Borrower’s incorporation. The Borrower has duly and punctually paid or caused to be paid and discharged all Taxes imposed upon it or its assets within the time period allowed, except for Taxes that are being contested in good faith by appropriate proceedings and for which such Person, as applicable, has set aside on its books adequate reserves in accordance with IFRS. The Borrower is not materially overdue in the filing of any Tax returns. No claims are being asserted or are reasonably likely to be asserted against the Borrower with respect to Taxes that would reasonably be expected to result in a Material Adverse Effect. It is not required to make any deduction for or on account of any Tax from any payment it may make under any Loan Document. Under the laws of the jurisdiction of organization of the Borrower, it is not necessary that the Loan Documents be filed, recorded or enrolled with any Governmental Authority in such jurisdiction or that any stamp, registration or similar tax be paid on or in relation to the Loan Documents or the Transactions. Section 3.11 ERISA. Except as would not reasonably be expected to result in a Material Adverse Effect, each Plan is in compliance with all applicable provisions and requirements of ERISA and the Code and all other applicable Laws and regulations. No ERISA Event has occurred or is reasonably expected to occur that would reasonably be expected to result in a Material Adverse Effect. The excess of the present value of all accumulated benefit obligations under each Plan (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) as of the date of the most recent financial statements reflecting such amounts, over the fair market value of the assets of such Plan would not reasonably be expected to result in a Material Adverse Effect, and the excess of the present value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87) as of the date of the most recent financial statements reflecting such amounts, over the fair market value of the assets of all such underfunded Plans would not reasonably be expected to result in a Material Adverse Effect. Section 3.12 No Misleading Information. All material information provided to the Lead Arrangers in writing by the Borrower relating to the Acquisition is accurate in all material respects and not misleading in any material respect. Any factual information contained in the Annual Report was true and
61 accurate in all material respects as of the date it was provided or as of the date (if any) at which it is stated. Nothing has occurred or been omitted from the Annual Report and no information has been given or withheld that results in the information contained in the Annual Report being untrue or misleading in any material respect, in each case, as of the date it was provided or as of the date (if any) at which it is stated. Section 3.13 Sanctions Laws; Anti-Corruption, Anti-Bribery, Anti-Money Laundering Laws and Regulations. (a) Neither the Borrower, nor any of its Subsidiaries, nor any of its directors, officers and employees, or, to the best of the knowledge and belief of the Borrower, agents or representatives: (i) is a Designated Person; (ii) is, or for the last five (5) years has been, in violation of any Sanctions Laws; or (iii) is, or for the last five (5) years has been, engaged in any dealings or activities with or for the benefit of any Designated Person. (b) There are no pending or, to the best of the knowledge and belief of the Borrower, threatened Proceedings involving the Borrower or its Subsidiaries with respect to any Sanctions Laws. (c) The Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve compliance with Sanctions Laws. (d) (i) Neither the Borrower, nor any of its Subsidiaries, nor any of its directors, officers, employees and, to the best of the knowledge and belief of the Borrower, its agents, representatives, and Affiliates, has engaged in any activity or conducted its businesses in any way which would violate any Anti-Money Laundering Laws, (ii) there are no pending, or to the best of the knowledge and belief of the Borrower, threatened Proceedings involving the Borrower or its Subsidiaries with respect to any Anti-Money Laundering Laws, and (iii) the Borrower and its Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve compliance with Anti-Money Laundering Laws. (e) The Borrower and its Subsidiaries, and its respective directors, officers, employees, and to the best of the knowledge and belief of the Borrower, agents and representatives, have not corruptly paid, offered or promised to pay, or authorized payment of any monies or things of value, directly or indirectly, to any person, including without limitation any government official or any political party or party official or candidate for political office, for the purpose of obtaining or retaining business, or directing business to any person, or obtaining any other improper advantage, in each case in violation of Anti-Corruption Laws (collectively, “Prohibited Payments”), and there are no pending or, to the best of the knowledge and belief of the Borrower, threatened Proceedings involving the Borrower or its Subsidiaries with respect to Anti-Corruption Laws. The Borrower and its respective Subsidiaries have instituted and maintain policies and procedures designed to promote and achieve compliance with Anti-Corruption Laws. Section 3.14 Federal Reserve Board Regulations. The Borrower is not engaged and will not engage, principally or as one of its important activities, in the business of extending credit for the purposes of “purchasing” or “carrying” any “Margin Stock” within the respective meanings of such terms under
62 Regulations U, T and X of the Board. No part of the proceeds of the Loans will be used for “purchasing” or “carrying” “Margin Stock” as so defined for any purpose which violates, or which would be inconsistent with, the provisions of, any applicable Laws or regulations of any Governmental Authority (including, without limitation, the Regulations of the Board). Section 3.15 Solvency. The Borrower is Solvent. Section 3.16 Centre of Main Interest and Establishment. For the purposes of Regulation (EU) 2015/848 of the European Parliament and the Council of 20 May 2015 on insolvency proceedings (recast) (the “Recast Regulation”), the Borrower’s centre of main interest (as that terms is used in Article 3(1) of the Recast Regulation) is situated in either Luxembourg, Sweden or England and Wales, or for purposes of the Cross Border Insolvency Regulations 2006 (the “CBIR”), the Borrower’s centre of main interest (as that term is used in Article 2 (Definitions) of the CBIR) is situated in the United States of America, and the Borrower has no “establishment” (as that term is defined in Article 2(10) of the Recast Regulation or Article 2 of the CBIR) in any other jurisdiction. Section 3.17 Governing Law and Enforcement. Subject to the qualifications contained in any legal opinion delivered pursuant to Section 4.01, (a) the choice of New York law as the governing law of the Loan Documents will be recognized and enforced in the jurisdiction of organization of the Borrower and (b) any judgment obtained in New York in relation to a Loan Document will be recognized and enforced in the jurisdiction of organization of the Borrower. Section 3.18 Pari Passu Ranking. The obligations of the Borrower under the Loan Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors, except for obligations mandatorily preferred by law applying to companies in each relevant jurisdiction generally. Section 3.19 Acquisition Arrangements. (a) The Borrower has complied in all material respects with applicable Laws in relation to the Acquisition; (b) the performance by the Borrower of, and the transactions contemplated by, the Acquisition Documents do not and will not conflict in any material respect with: (i) any Law applicable to it; (ii) its constitutional documents; or (iii) any agreement or instrument binding upon it or any of its assets; (c) the obligations expressed to be assumed by the Borrower in each Acquisition Document are legal, valid, binding and enforceable obligations; (d) the Borrower has the power to perform, and has taken all necessary action to authorize its performance of, the Acquisition Documents to which it is a party and the transactions contemplated by those Acquisition Documents; and (e) the Acquisition Documents contain all the material terms of the Acquisition. ARTICLE IV CONDITIONS PRECEDENT Section 4.01 Conditions Precedent to the Closing Date. The obligations of the Lenders to make the Loans hereunder on the Closing Date shall be subject to the satisfaction (or waiver in accordance with Section 10.02) of the following conditions: (a) The Administrative Agent (or its counsel) shall have received from each party thereto either (i) a counterpart of this Agreement, the Engagement Letter and each Fee Letter, or (ii) written evidence satisfactory to the Administrative Agent (which may include telecopy or electronic mail transmission of a signed signature page of this Agreement) that such party has signed a counterpart of this Agreement, the Engagement Letter and each Fee Letter. (b) The Administrative Agent shall have received an opinion (addressed to the Administrative Agent and the Lenders and dated the Closing Date) of each of (i) Jones Day, special
63 New York counsel to the Borrower, in form and substance satisfactory to the Administrative Agent; and (ii) Hogan Lovells (Luxembourg), LLP, special Luxembourg counsel to the Borrower, in form and substance satisfactory to the Administrative Agent. (c) The Administrative Agent shall have received a customary officer’s certificate from the Borrower dated the Closing Date and signed by an Authorized Officer of the Borrower, in form and substance satisfactory to the Administrative Agent, including as exhibits thereto copies of the following documents and certifying that such documents are correct, complete and in full force and effect, and have not been amended or superseded, as of such date: (i) the Borrower's coordinated articles of association (statuts coordonnés); (ii) (A) a copy of an excerpt (extrait) from the Luxembourg Register of Commerce and Companies and (B) a copy of a certificate of non-inscription of judicial decisions (certificat de non-inscription d’une décision judiciaire) from the Luxembourg Register of Commerce and Companies, in each case dated no earlier than one (1) Business Days before the Closing Date; (iii) the resolutions of the board of directors of the Borrower approving the Facility and the related transactions and the execution and delivery of the Loan Documents and authorizing specified persons to execute the Loan Documents; and (iv) (A) a certificate of incumbency and (B) specimen of the signature with respect to each Authorized Officer of the Borrower authorized by the resolutions referred to above (which may be provided as Electronic Signatures). (d) The Administrative Agent shall have received (i) a certificate, dated the Closing Date and signed by an Authorized Officer of the Borrower, certifying that (A) the Acquisition Agreement has been executed and delivered by all parties thereto, (B) the Acquisition shall be consummated on the Closing Date simultaneously with the funding of the Loans hereunder in accordance with the terms of the Acquisition Agreement provided pursuant to subclause (ii) of this clause (d) without giving effect to any amendment, modification or waiver thereof, or any consent thereunder, which is materially adverse to the interests of the Borrower or the Lenders as a whole under the Loan Documents, (C) the proceeds of the Loans drawn on the Closing Date together with any other amounts available to the Group are sufficient to pay the Acquisition Costs and (D) all of the conditions set forth in this Section 4.01 have been satisfied; and (ii) a copy of the final (or substantially final) draft of the Acquisition Agreement for information purposes only and without a right of approval for the Administrative Agent, the Lead Arrangers or any of the Lenders. (e) The Administrative Agent shall have received a process agent appointment letter duly signed by the Process Agent indicating its acceptance of the appointment by the Borrower pursuant to this Agreement. (f) Upon the reasonable request of any Lender or the Administrative Agent made at least two (2) days prior to the Closing Date, the Borrower shall have provided to such Lender or the Administrative Agent (as applicable) the documentation and other information (including, if the Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, a customary Beneficial Ownership Certification in respect of the Borrower) so requested in connection with applicable “know your customer” and anti-money-laundering rules and regulations, including the USA PATRIOT Act and Beneficial Ownership Regulations (collectively, the “KYC Requirements”).
64 (g) The Administrative Agent shall have received the Borrowing Request. (h) The Administrative Agent shall have received copies of (a) the audited consolidated financial statement of the Borrower and its Subsidiaries for the Financial Year ended December 31, 2020 and the unaudited consolidated quarterly financial statement of the Borrower and its Subsidiaries for the Financial Quarter ended June 30, 2021, and (b) the audited combined financial statements of the Comcel Group for the Financial Year ended December 31, 2020. (i) The representations set forth in Section 3.01 shall remain true and correct in all material respects (or, in the case of any such representation or warranty already qualified by materiality or Material Adverse Effect, in all respects) on the Closing Date (or, in the case of any such representation or warranty expressly stated to have been made as of a specific date, as of such specific date). (j) Payment of all fees, costs and expenses required to be paid (or reimbursed) by the Borrower to the Lead Arrangers, the Administrative Agent or the Lenders in connection with the Facility (including pursuant to the Fee Letters) as of the Closing Date (excluding legal fees and expenses which will be paid after the Closing Date according to arrangements agreed between the Borrower and the relevant counsel); provided that, in the case of reimbursement of expenses, statements of such expenses shall have been delivered to the Borrower at least two (2) days prior to the Closing Date. (k) No Default or Event of Default exists at the time of, or after giving effect to the making of the Loans, on the Closing Date. ARTICLE V AFFIRMATIVE COVENANTS Until the Commitments have expired or been terminated and the principal of and interest on each Loan and all fees and other Obligations payable hereunder shall have been paid in full, the Borrower covenants and agrees with the Lenders as follows: Section 5.01 Financial Statements; and Other Information. The Borrower will furnish to the Administrative Agent (for distribution to each Lender): (a) within 120 days after the end of each Financial Year of the Borrower, its audited consolidated and audited unconsolidated financial statements for that Financial Year; (b) within 90 days after the end of each of the first three Financial Quarters of each Financial Year of the Borrower, its unaudited consolidated financial statements as of the end of and for such Financial Quarter; (c) concurrently with the delivery of financial statements under clauses (a) and (b), a certificate of a Financial Officer of the Borrower (each, a “Compliance Certificate”), in the form of Exhibit B; (d) promptly after the same become publicly available, copies of all periodic and other reports distributed by the Borrower to its shareholders generally; and (e) promptly following any request therefor, such other information (which is not of a confidential nature or publicly available), as the Administrative Agent or any Lender (through the
65 Administrative Agent) may reasonably request as necessary to comply with applicable KYC Requirements; provided that, the Borrower shall not be required to deliver confidential information consisting of trade secrets or other proprietary or competitively sensitive information relating to the Borrower or its Subsidiaries and its respective businesses, and provided, further, that no Lender shall request any further information regarding the financial statements of the Borrower unless (A) the Borrower has not delivered its financial statements as required under the Loan Agreement as of such date or (B) such request relates to a material variance from the financial statements delivered in the previous quarterly or annual period; and (f) no later than two (2) Business Days following the Closing Date, an executed copy of the Acquisition Agreement. (g) Any financial statements required to be delivered pursuant to Sections 5.01(a) or 5.01(b) above and any information required to be delivered pursuant to Section 5.01(d) above shall be deemed to have been furnished to the Administrative Agent on the date that such financial statement or other information is posted on the website of the Borrower. Section 5.02 Notices of Material Events. The Borrower will furnish to the Administrative Agent (for distribution to each Lender) prompt written notice, after an Authorized Officer of the Borrower becomes aware of such event, of the following events: (a) the occurrence of any Default or Event of Default (and any steps being taken to remedy such Default or Event of Default); (b) the filing or commencement of any action, suit, investigation or proceeding by or before any arbitrator or Governmental Authority against or affecting the Borrower or any Significant Subsidiary (or any adverse change or development in any such action, suit, investigation or proceeding) thereof that, in the good faith judgment of the Borrower, if adversely determined, would reasonably be expected to result in a Material Adverse Effect; (c) any other development (including the incurrence or imposition of Environmental Liability) that, in the good faith judgment of the Borrower, results in, or would reasonably be expected to result in, a Material Adverse Effect; or (d) the occurrence of a Change of Control. Section 5.03 Existence; Conduct of Business; Authorizations. (a) The Borrower shall do or cause to be done all things necessary to preserve, renew and keep in full force and effect its legal existence. (b) The Borrower shall ensure that no substantial change is made to the general nature of its business or the business of the Borrower’s Significant Subsidiaries from that carried out as of the date of this Agreement, provided that, the foregoing shall not prevent any such Person from engaging in any Related Business. (c) The Borrower shall promptly (x) obtain, comply with and do all that is necessary to maintain in full force and effect and (y) supply certified copies to the Administrative Agent of, any authorization, approval, consent, license, resolution, exemption, filing, notarization or
66 registration required under any law or regulation of its jurisdiction of organization to enable it to perform its obligations under the Loan Documents to which it is a party and to ensure, subject to the reservations specifically referred to in any legal opinion delivered pursuant to Section 4.01, the legality, validity, enforceability or admissibility in evidence in its jurisdiction of organization of each Loan Document to which it is a party. Section 5.04 Payment of Material Obligations. The Borrower shall duly and punctually pay and discharge all material payment obligations and Taxes imposed upon it or its assets within the time period allowed without incurring penalties, except where (a) the validity or amount thereof is being contested in good faith by appropriate proceedings, and (b) such Person has set aside on its books adequate reserves with respect thereto in accordance with IFRS. Section 5.05 Maintenance of Properties; Insurance. (a) Except for the discontinuance of the operation or maintenance of the properties of the Borrower or any Borrower’s Significant Subsidiary if such discontinuance is, in the Person’s judgment, desirable in the conduct of its business, the Borrower shall (and the Borrower shall ensure that each of its Significant Subsidiaries shall) maintain in good repair, working order and condition (ordinary wear and tear excepted) all of its material properties necessary or desirable in the conduct of its business, all in accordance with the judgment of each such Person (acting reasonably). (b) The Borrower shall (and the Borrower shall ensure that each of its Significant Subsidiaries shall): (1) preserve and maintain the subsistence and validity of the Intellectual Property reasonably necessary for the business of such Person (“Material Intellectual Property”); (2) use reasonable endeavors to prevent any infringement in any material respect of the Material Intellectual Property; (3) make registrations, pay all registration fees and taxes, and take all other actions reasonably necessary to preserve and maintain the Material Intellectual Property in full force and effect and record its interest in that Material Intellectual Property; (4) not use or permit the Material Intellectual Property to be used in a way or take any step or omit to take any step in respect of that Material Intellectual Property which may materially and adversely affect the existence or value of the Material Intellectual Property or imperil the right of any such Person to use such property; and (5) not discontinue the use of the Material Intellectual Property, where failure to do so, in the case of paragraphs (1), (2) and (3) above, or, in the case of paragraphs (4) and (5) above, such use, permission to use, omission or discontinuation, would reasonably be expected to result in a Material Adverse Effect. (c) The Borrower shall (and the Borrower shall ensure that each of its Significant Subsidiaries shall) maintain insurance on, and in relation to, its properties with reputable underwriters or insurance companies against those risks and to the extent as is usual for companies carrying on the same or substantially similar business. Section 5.06 Books and Records; Inspection Rights. The Borrower shall (and the Borrower shall ensure that each of its Significant Subsidiaries shall) maintain proper books of record and account in which full, true and correct entries are made of all dealings and transactions in relation to its business and activities. The Borrower shall permit any representatives designated by the Administrative Agent or any Lender, upon reasonable prior notice, to visit and inspect its properties, to examine its books and records, and to discuss its affairs, finances and condition with its officers; provided, however that, unless an Event of Default has occurred and is continuing, the Administrative Agent and the Lenders shall be limited to one such visit or inspection in each Financial Year and (i) such visit or inspection shall be at the sole cost and expense of the Administrative Agent or applicable Lenders (except that the Administrative Agent may make
67 one such visit during each Financial Year and the reasonable cost and expense thereof shall be borne by the Borrower) and (ii) the Borrower shall have received reasonable advance notice thereof. Section 5.07 Compliance with Laws. (a) The Borrower shall (and the Borrower shall ensure that each Significant Subsidiary shall) comply with all Laws to which it may be subject, if the failure to do so would materially impair the Borrower ’s ability to perform its obligations under the Loan Documents. (b) The Borrower shall (and the Borrower shall ensure that each of its Subsidiaries shall) comply with all Sanctions Laws, Anti-Corruption Laws and Anti-Money Laundering Laws. (c) The Borrower shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries, and each of its respective directors, officers, employees, agents, and representatives with Sanctions Laws and Anti-Money Laundering Laws. Section 5.08 Environmental Compliance. The Borrower shall (and the Borrower shall ensure that each of its Significant Subsidiaries shall) comply with all Environmental Laws, including by obtaining and maintaining any applicable environmental permits, licenses, or authorizations, except where failure to do so would not reasonably be expected to result in a Material Adverse Effect. Section 5.09 Use of Proceeds. The Borrower shall use the proceeds of the Loans solely to finance (i) the cash consideration due to the owners of the Target Shares under the terms of the Acquisition Documents and (ii) the Acquisition Costs. Section 5.10 Pari Passu Ranking The Borrower shall ensure that at all times any unsecured and unsubordinated claims of a Credit Party against it under the Loan Documents rank at least pari passu with the claims of all its other unsecured and unsubordinated creditors except those creditors whose claims are mandatorily preferred by laws of general application to companies. Section 5.11 Centre of Main Interest and Establishment. For the purposes of the Recast Regulation, the Borrower’s centre of main interest (as that terms is used in Article 3(1) of the Recast Regulation) is situated in either Luxembourg, Sweden or England and Wales, or for purposes of the CBIR, the Borrower’s centre of main interest (as that term is used in Article 2 (Definitions) of the CBIR) is situated in the United States of America, and the Borrower shall have no “establishment” (as that term is defined in Article 2(10) of the Recast Regulation or Article 2 of the CBIR) in any other jurisdiction.
68 ARTICLE VI NEGATIVE COVENANTS Until the Commitments have expired or terminated and the principal of and interest on each Loan and all fees and other Obligations payable hereunder have been paid in full, the Borrower covenants and agrees with the Lenders as follows: Section 6.01 Fundamental Changes, Asset Dispositions. The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, (i) wind up, liquidate or dissolve its affairs, or merge or consolidate with or into any other Person, other than Permitted Reorganizations; or (ii) engage in any Asset Disposition, other than a Permitted Disposal. Section 6.02 Liens. The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, create, incur, assume or suffer to exist any Lien upon or with respect to any property or assets of any kind of such Person whether now owned or hereafter acquired, other than Permitted Liens. Section 6.03 Transactions with Affiliates. The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, enter into any transaction with any Affiliate of such Person except on arm’s length terms and for Fair Market Value other than (i) loans among members of the Restricted Group; (ii) any Permitted Reorganization to the extent that it only involves members of the Restricted Group; or (iii) fees, costs and expenses payable under the Loan Documents. Section 6.04 Sanctions Laws; Anti-Money Laundering Laws. (a) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, directly or indirectly, use the proceeds of the Loans, or lend, contribute or otherwise make available such proceeds to any Subsidiary, Joint Venture partner or other Person or entity (i) to fund any activities or business of or with any Designated Person, or in any Sanctioned Country or that would otherwise result in a violation of any Sanctions Laws by any party to the Loan Documents or (ii) in any other manner that would result in a violation of any Sanctions Laws or any Anti-Money Laundering Laws by any party to the Loan Documents, or that could reasonably be expected to cause any party to the Loan Documents to become a Designated Person. (b) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, use funds or assets obtained from transactions with or relating to Designated Persons or Sanctioned Countries or otherwise obtained in violation of any Sanctions Laws to pay any amount due pursuant to the Loan Documents. Section 6.05 Restricted Payments. The Borrower shall not pay, make or declare any dividend or other distribution to all or any of its shareholders whilst and for so long as an Event of Default has occurred and is continuing. Section 6.06 Anti-Corruption Law. (a) The Borrower shall not, nor shall the Borrower permit any Subsidiary to, directly or indirectly use the proceeds of the Facility for any Prohibited Payment or for any purpose which would breach any Anti-Corruption Law. (b) The Borrower shall maintain in effect and enforce policies and procedures designed to ensure compliance by the Borrower, its Subsidiaries, and each of its respective directors, officers, employees, agents, and representatives with Anti-Corruption Laws.
69 Section 6.07 Unrestricted Subsidiaries. (a) The Borrower may, by delivery of a certificate executed by an Authorized Officer of the Borrower to the Administrative Agent, designate, after the date hereof, any Subsidiary of the Borrower (including any newly created or acquired Subsidiary) as an “Unrestricted Subsidiary” if, at the time of or after giving effect to such designation: (1) no Default or Event of Default shall exist; and (2) the aggregate amount of Investments (other than Permitted Investments) by the Borrower and the Restricted Subsidiaries in all Unrestricted Subsidiaries shall not exceed the greater of (x) $950,000,000 (or the equivalent in other currencies) or (y) 10% of Total Assets at any time outstanding. (b) The Borrower shall not, nor shall the Borrower permit any Restricted Subsidiary to, at any time: (1) provide credit support for, subject any of its property or assets (other than Liens over the Capital Stock, Debt and other securities of any Unrestricted Subsidiary securing Debt of that Unrestricted Subsidiary and its Subsidiaries) to the satisfaction of, or guarantee, any Debt of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Debt); (2) be directly or indirectly liable for any Debt of any Unrestricted Subsidiary; (3) be directly or indirectly liable for any Debt which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Debt of any Unrestricted Subsidiary; or (4) make any Investment (other than a Permitted Investment) in any Unrestricted Subsidiary to the extent such Investment, together with the aggregate Investments in all Unrestricted Subsidiaries then outstanding, exceeds the amount set out in Section 6.07(a). (c) The Borrower may re-designate an Unrestricted Subsidiary as a Restricted Subsidiary (a “Re-designation”) only if all Liens and Debt of such Unrestricted Subsidiary outstanding immediately following such Re-designation if incurred at such time would have been permitted to be incurred for all purposes of this Agreement. Section 6.08 Total Net Leverage Ratio. The Borrower will not permit the Total Net Leverage Ratio to exceed 3.50:1.00 as of the last day of any Financial Quarter. ARTICLE VII EVENTS OF DEFAULT Section 7.01 Events of Default. If any of the following events (“Events of Default”) shall occur: (a) the Borrower shall fail to pay any principal of any Loan when and as the same shall become due and payable, whether at the due date thereof or at a date fixed for prepayment thereof or otherwise; (b) the Borrower shall fail to pay any interest on any Loan or any fee or any other amount (other than an amount referred to in clause (a) of this Article VII) payable under any Loan Document, when and as the same shall become due and payable, and such failure shall continue unremedied for a period of five (5) Business Days; (c) any representation or warranty made or deemed made by or on behalf of the Borrower in or in connection with any Loan Document shall prove to have been incorrect in any material respect when made or deemed made; provided that, if any such incorrect representation or
70 warranty is capable of being remedied, it shall not be an “Event of Default” unless such representation or warranty continues unremedied for a period of thirty (30) days following of the earlier of (i) the Administrative Agent giving notice to the Borrower thereof and (ii) a member of the executive committee or a senior member of the treasury department of the Borrower having knowledge of the thereof; (d) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in Article VI; (e) the Borrower shall fail to observe or perform any covenant, condition or agreement contained in this Agreement (other than those specified in clause (a), (b) or (d) of this Article VII), and such failure shall continue unremedied for a period of thirty (30) days following of the earlier of (i) the Administrative Agent giving notice to the Borrower thereof and (ii) a member of the executive committee or a senior member of the treasury department the Borrower having knowledge thereof; (f) the Borrower or any Restricted Subsidiary shall default in the payment of any Debt when due (after giving effect to any applicable grace period) in an outstanding principal amount equal to or exceeding $100,000,000 (or the equivalent in other currencies); (g) any event or condition occurs that results in any Debt of the Borrower or of any Restricted Subsidiary in an outstanding principal amount equal to or exceeding $100,000,000 (or the equivalent in other currencies) becoming due prior to its scheduled maturity; (h) an involuntary proceeding shall be commenced or an involuntary petition shall be filed seeking (i) liquidation, reorganization or other relief in respect of the Borrower or any Restricted Subsidiary or its debts, or of a substantial part of its assets, under any Debtor Relief Law now or hereafter in effect or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for the Borrower or any Restricted Subsidiary or for a substantial part of any such Person’s assets, unless, if with respect to any proceeding not initiated by the Borrower or any Restricted Subsidiary, such proceeding (i) is initiated pursuant to a frivolous or vexatious petition that is discharged, stayed or dismissed within sixty (60) days of the commencement thereof or (ii) in the case of any Restricted Subsidiary, such liquidation or dissolution is a Permitted Reorganization; (i) the Borrower or any Restricted Subsidiary shall (i) voluntarily commence any proceeding or file any petition seeking liquidation, reorganization or other relief under any Debtor Relief Law now or hereafter in effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any proceeding or petition described in clause (h) of this Article VII, (iii) apply for or consent to the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for such Person or for a substantial part of its assets, (iv) file an answer admitting the material allegations of a petition filed against it in any proceeding described in clause (h) of this Article VII, (v) make a general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting any of the foregoing, except, with respect to any Restricted Subsidiary, in the context of, or in connection with, any Permitted Reorganization; (j) the Borrower or any Restricted Subsidiary shall become unable, admit in writing its inability or fail generally to pay its debts as they become due; (k) any attachment, sequestration, distress or execution affects any asset or assets of the Borrower having a value in excess of $100,000,000 (or the equivalent in other currencies) or
71 and such attachment, sequestration, distress or execution is not discharged within sixty (60) days or, where the Borrower reasonably believes such action is frivolous, vexatious or without merit, and is challenging such action in good faith, such action is not discharged within one hundred and eight (180) days; (l) the Borrower shall fail within sixty (60) days to pay, bond or otherwise discharge any judgments or orders for the payment of money (not covered by insurance as to which the insurer has been notified of such judgment or order and does not dispute payment) which have not been stayed on appeal or otherwise appropriately contested in good faith in an amount which, when added to all other such judgments or orders outstanding against the Borrower would exceed $100,000,000 (or the equivalent in other currencies); (m) the Borrower shall disavow, revoke or terminate (or attempt to terminate) in writing any Loan Document or shall otherwise challenge or contest in any action, suit or proceeding in any court or before any Governmental Authority the validity or enforceability of any Loan Document; or any Loan Document shall cease to be in full force and effect (except as a result of the express terms hereof or thereof); (n) if, in any applicable jurisdiction, it becomes unlawful for the Borrower to perform any of its obligations under the Loan Documents; (o) the Borrower repudiates a Loan Document or evidences an intention to repudiate a Loan Document; or (p) the authority or ability of the Borrower or any Restricted Subsidiary to conduct its business is limited or wholly or substantially curtailed by any seizure, expropriation, nationalization, intervention, restriction or other action by or on behalf of any governmental, regulatory or other authority or other person in relation to any such Person or any of its assets, where such action has resulted in, or would reasonably be expected to result in, a Material Adverse Effect; then, and in every such event (other than an event with respect to the Borrower described in clause (h) or (i) of this Article VII), and at any time thereafter during the continuance of such event, the Administrative Agent may, and at the request of the Required Lenders shall, by notice to the Borrower, take either or both of the following actions, at the same or different times: (i) terminate the Commitments, and thereupon the Commitments shall terminate immediately, and (ii) declare the Loans then outstanding to be due and payable in whole (or in part, in which case any principal not so declared to be due and payable may thereafter be declared to be due and payable), and thereupon the principal of the Loans so declared to be due and payable, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall become due and payable immediately, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower; and in case of any event with respect to the Borrower described in clause (h) or (i) of this Article VII, the Commitments shall automatically terminate and the principal of the Loans then outstanding, together with accrued interest thereon and all fees and other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby waived by the Borrower. Section 7.02 Distribution of Payments after Event of Default. In the event that following the occurrence and during the continuance of any Event of Default, the Administrative Agent or any Lender,
72 as the case may be, receives any monies in connection with the enforcement of any the Loan Documents, such monies shall be distributed for application as follows: (a) First, to the payment of, or (as the case may be) the reimbursement of the Administrative Agent for or in respect of, all reasonable fees, costs, expenses, disbursements and losses which shall have been incurred or sustained by the Administrative Agent in connection with the Facility or the Loan Documents or any transactions contemplated thereby, in each case, to the extent reimbursable or indemnifiable pursuant to the Loan Documents; (b) Second, to pay any fees, expense reimbursements, indemnities and other amounts (other than principal and interest) then due to the Lenders from the Borrower, ratably among them in proportion to the respective amounts described in this clause (b) payable to them; (c) Third, to pay interest then due and payable on the Loans ratably among the Lenders in proportion to the respective amounts described in this clause (c) payable to them; (d) Fourth, to prepay principal on the Loans ratably; (e) Fifth, to the payment in full of all other Obligations, in each case ratably among the Administrative Agent and the Lenders based upon the respective aggregate amounts of all such Obligations owing to them in accordance with the respective amounts thereof then due and payable; and (f) Sixth, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law. ARTICLE VIII THE ADMINISTRATIVE AGENT Each of the Lenders hereby irrevocably appoints the Administrative Agent as its agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. It is understood and agreed that the use of the term “agent” herein or in any other Loan Documents with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties. The bank serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the bank serving as the Administrative Agent hereunder in its individual capacity. Such bank and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, the Borrower or any Subsidiary or other Affiliate thereof as if it were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders. The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing,
73 (b) the Administrative Agent shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise in writing as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02 or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable Law, and (c) except as expressly set forth herein and in the other Loan Documents, the Administrative Agent shall not have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any Subsidiaries that is communicated to or obtained by the bank serving as the Administrative Agent or any of its Affiliates in any capacity. The Administrative Agent shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary under the circumstances as provided in Section 10.02), or as the Administrative Agent shall believe in good faith shall be necessary, or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non- appealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until written notice thereof is given to the Administrative Agent by the Borrower or a Lender, and the Administrative Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Documents, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or (v) the satisfaction of any condition set forth in Article IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent. The Administrative Agent shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions hereof relating to Defaulting Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (i) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Defaulting Lender or (ii) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Defaulting Lender (except for the Administrative Agent’s compliance with its own confidentiality obligations hereunder). The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a Lender, the Administrative Agent may presume that such condition is satisfactory to such Lender unless the Administrative Agent shall have received notice to the contrary from such Lender prior to the making of such Loan. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts. The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents, including its Related Parties, appointed by the Administrative Agent. The Administrative Agent and any such sub-agent
74 may perform any and all of its duties and exercise its rights and powers by or through its respective Related Parties. The exculpatory provisions of the preceding paragraphs shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to its respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non-appealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents. The Administrative Agent may at any time give notice of its resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) (unless an Event of Default has occurred and is continuing at the time of such appointment in which case only consultation with the Borrower shall be required), to appoint a successor. If no successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent may (but shall not be obligated to), on behalf of the Lenders, appoint a successor Administrative Agent which shall be a bank with an office in New York, New York, or an Affiliate of any such bank (which appointment shall be made with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) (unless an Event of Default has occurred and is continuing at the time of such appointment in which case only consultation with the Borrower shall be required)); provided that in no event shall any such successor Administrative Agent be a Defaulting Lender. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date. If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, with the consent of the Borrower (such consent not to be unreasonably withheld, conditioned or delayed) (unless an Event of Default has occurred and is continuing at the time of such appointment in which case only consultation with the Borrower shall be required), appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date. With effect from the Resignation Effective Date or the Removal Effective Date (as applicable), (i) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents and (ii) except for any indemnity payments owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents. The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article VIII and Section 10.03 shall continue in effect for the benefit of such retiring or removed Administrative Agent,
75 its sub-agents and its respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent. Each Lender acknowledges and agrees that the extensions of credit made here under are commercial loans and letters of credit and not investments in a business enterprise or securities. Each Lender further represents that it is engaged in making, acquiring or holding commercial loans in the ordinary course of its business and acknowledges that it has, independently and without reliance upon the Administrative Agent or any other Lender or any of its Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement as a Lender, and to make, acquire or hold Loans hereunder. Each Lender also acknowledges that it will, independently and without reliance upon the Administrative Agent or any other Lender or any of its Related Parties and based on such documents and information (which may contain material, non- public information within the meaning of the United States securities laws concerning the Borrower and its Affiliates) as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder and in deciding whether or to the extent to which it will continue as a lender or assign or otherwise transfer its rights, interests and obligations hereunder. In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to the Borrower, the Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered (but not obligated) by intervention in such proceeding or otherwise: (a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders and the Administrative Agent and its respective agents and counsel and all other amounts due the Lenders and the Administrative Agent under Section 10.03) allowed in such judicial proceeding; and (b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender to make such payments to the Administrative Agent and, in the event that the Administrative Agent shall consent to the making of such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Section 10.03. Anything herein to the contrary notwithstanding, the Lead Arrangers shall not have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent or a Lender hereunder. ARTICLE IX ERRONEOUS PAYMENTS Section 9.01 Erroneous Payments. (a) Each Lender hereby agrees that (x) if the Administrative Agent notifies such Lender that the Administrative Agent has determined in its sole discretion that any funds received by such Lender from the Administrative Agent or any of its Affiliates (whether as a payment, prepayment or repayment of principal, interest, fees or otherwise; individually and collectively, a “Payment”) were erroneously transmitted to such Lender (whether or not known to such Lender),
76 and demands the return of such Payment (or a portion thereof), such Lender shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect, and (y) to the extent permitted by applicable law, such Lender shall not assert, and hereby waives, as to the Administrative Agent, any claim, counterclaim, defense or right of set-off or recoupment with respect to any demand, claim or counterclaim by the Administrative Agent for the return of any Payments received, including without limitation any defense based on “discharge for value” or any similar doctrine. A notice of the Administrative Agent to any Lender under this Section 9.01(a) shall be conclusive, absent manifest error. (b) Each Lender hereby further agrees that if it receives a Payment from the Administrative Agent or any of its Affiliates (x) that is in a different amount than, or on a different date from, that specified in a notice of payment sent by the Administrative Agent (or any of its Affiliates) with respect to such Payment (a “Payment Notice”) or (y) that was not preceded or accompanied by a Payment Notice, it shall be on notice, in each such case, that an error has been made with respect to such Payment. Each Lender agrees that, in each such case, or if it otherwise becomes aware a Payment (or portion thereof) may have been sent in error, such Lender shall promptly notify the Administrative Agent of such occurrence and, upon demand from the Administrative Agent, it shall promptly, but in no event later than one Business Day thereafter, return to the Administrative Agent the amount of any such Payment (or portion thereof) as to which such a demand was made in same day funds, together with interest thereon in respect of each day from and including the date such Payment (or portion thereof) was received by such Lender to the date such amount is repaid to the Administrative Agent at the greater of the NYFRB Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation from time to time in effect. (c) The Borrower and each other Loan Party hereby agrees that (x) in the event an erroneous Payment (or portion thereof) is not recovered from any Lender that has received such Payment (or portion thereof) for any reason, the Administrative Agent shall be subrogated to all the rights of such Lender with respect to such amount and (y) an erroneous Payment shall not pay, prepay, repay, discharge or otherwise satisfy any Obligations owed by the Borrower; provided that nothing in this Article IX shall be interpreted to increase (or accelerate the due date for), or have the effect of increasing (or accelerating the due date for), the Obligations of the Borrower relative to the amount (and/or timing for payment) of the Obligations that would have been payable had such Erroneous Payment not been made by the Administrative Agent; provided, further, that for the avoidance of doubt, immediately preceding clauses (x) and (y) shall not apply to the extent any such Erroneous Payment is, and solely with respect to the amount of such Erroneous Payment that is, comprised of funds received by the Administrative Agent from the Borrower for the purpose of making such Erroneous Payment. (d) Each party’s obligations under this Section 9.01 shall survive the resignation or replacement of the Administrative Agent or any transfer of rights or obligations by, or the replacement of, a Lender, the termination of the Commitments or the repayment, satisfaction or discharge of all Obligations under any Loan Document.
77 ARTICLE X MISCELLANEOUS Section 10.01 Notices. (a) Except in the case of notices and other communications expressly permitted to be given by telephone (and subject to paragraph (b) below), all notices and other communications provided for herein or in any other Loan Document shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by electronic mail or by telecopy, as follows: (i) If to the Borrower or the Administrative Agent, to it at its address (or electronic mail address or telecopy number) set forth on Schedule II; and (ii) if to any Lender, to it at its address (or electronic mail address or telecopy number) set forth in its Administrative Questionnaire. Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through Electronic Systems, to the extent provided in paragraph (b) below, shall be effective as provided in said paragraph (b). (b) Notices and other communications to the Lenders hereunder may be delivered or furnished by using Electronic Systems pursuant to procedures approved by the Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless otherwise agreed by the Administrative Agent and the applicable Lender. The Administrative Agent and The Borrower may, in each of its respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications. Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, electronic mail or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient. (c) Any party hereto may change its address, electronic mail address or telecopy number for notices and other communications hereunder by notice to the other parties hereto. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt. (d) Electronic Systems. (i) The Borrower agrees that the Administrative Agent may, but shall not be obligated to, make Communications (as defined below) available to the other Lenders by
78 posting the Communications on Debtdomain, Intralinks, Syndtrak, ClearPar or a substantially similar Electronic System (the “Platform”). (ii) Any Electronic System used by the Administrative Agent is provided “as is” and “as available.” The Agent Parties (as defined below) do not warrant the adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non- infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System. In no event shall the Administrative Agent or any of its Related Parties (collectively, the “Agent Parties”) have any liability to the Borrower, any Lender or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of the Borrower’s or the Administrative Agent’s transmission of communications through an Electronic System. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of the Borrower pursuant to any Loan Document or the transactions contemplated therein which is distributed by the Administrative Agent or any Lender or by means of electronic communications pursuant to this Section, including through an Electronic System. (e) The Borrower hereby acknowledge that (1) the Administrative Agent or the Lead Arrangers will make available to the Lenders materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “Borrower Materials”) by posting the Borrower Materials on the Platform and (2) certain of the Lenders (each, a “Public Lender”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agree that they will, upon the Administrative Agent’s reasonable request, identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all the Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) by marking Borrower Materials “PUBLIC,” the Borrower shall be deemed to have authorized the Administrative Agent, the Lead Arrangers and the Lenders to treat the Borrower Materials as not containing any material non- public information (although it may be sensitive and proprietary) with respect to the Borrower or its respective Affiliates or Subsidiaries or its or its respective securities for purposes of United States federal and state securities laws (provided, however, that to the extent the Borrower Materials constitute Information, they shall be treated as set forth in Section 10.13); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Lead Arrangers shall be entitled to treat the Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Section 10.02 Waivers; Amendments. (a) No failure or delay by the Administrative Agent or any Lender in exercising any right or power under any Loan Document shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any
79 other right or power. The rights and remedies of the Administrative Agent and the Lenders hereunder and under the other Loan Documents are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of any Loan Document or consent to any departure by the Borrower therefrom shall in any event be effective unless such waiver or consent, as applicable, shall be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether the Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time. No waiver or consent by the Administrative Agent or the Lenders, nor any notice or demand on the Borrower, in any case shall entitle the Borrower to any other or further waiver, consent, notice or demand in similar or other circumstances. (b) Neither any Loan Document nor any provision thereof may be waived, amended or modified except pursuant to an agreement or agreements in writing entered into by the Borrower and the Required Lenders or by the Borrower and the Administrative Agent with the consent of the Required Lenders; provided that no such agreement shall (a) change the required percentage set forth in the definition of “Required Lenders”; (b) provide for an extension to the date of payment of any amount under this Agreement; (c) provide for an increase or a reduction in the Applicable Margin or an increase or a reduction in the amount of any payment of principal, interest, fees or any other amount payable to any Lender (provided that, only the Required Lenders’ consent shall be required to amend the rate charged pursuant to Section 2.08(b) or waive the obligation to pay interest at such rate, even if the effect is to reduce the rate of interest or the amount of any fee payable under this Agreement); (d) change the currency of payment of any amount under this Agreement; (e) change or extend any Commitment under the Facility; (f) substitute or release the Borrower other than as permitted under this Agreement; (g) change Section 2.14 in a manner that would alter the pro rata sharing of payments required thereby; (h) waive any condition set forth in Section 4.01; (i) change Section 10.09(a) in a manner that would alter the governing law of this Agreement; (j) the subordination of any of the Borrower’s obligations under this Agreement to any other Debt; (k) amend any provision of this Agreement that expressly requires the consent of all Lenders; (l) amend or waive the Borrower’s obligation to prepay the Loans pursuant to Section 2.08(a); (m) amend, supplement or modify this Section 10.02(b) and Section 7.02 and (n) change the definition of “Applicable Percentage”, shall be made without also obtaining the prior consent of, in the case of (a), (f), (g), (h), (i) and (k), all Lenders and, in the case of (b), (c), (d), (e), (j), (l), (m) and (n), each directly and adversely affected Lender; provided further that no such agreement shall amend, modify or otherwise affect the rights or duties of the Administrative Agent hereunder without the prior written consent of the Administrative Agent. (c) Notwithstanding anything herein to the contrary, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent that by its terms requires the consent of all the Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of any Defaulting Lender may not be increased or extended, or the maturity of any of its Loan may not be extended, the rate of interest on any of its Loans may not be reduced and the principal amount of any of its Loans may not be forgiven, in each case without the consent of such Defaulting Lender and (y) any amendment, waiver or consent requiring the consent of all the Lenders or each affected Lender that by its terms affects any Defaulting Lender more adversely than the other affected Lenders shall require the consent of such Defaulting Lender.
80 (d) Notwithstanding anything herein to the contrary, if the Administrative Agent and the Borrower shall have jointly identified an obvious error, ambiguity omission, defect or inconsistency or any error or omission of a formal, minor, operational or technical nature, in each case, in any provision of the Loan Documents, then the Administrative Agent and the Borrower shall be permitted to amend such provision, and, in each case, such amendment shall become effective without any further action or consent of any other party to any Loan Document; provided that the Administrative Agent shall notify the Required Lenders of such amendment as soon as practicable thereafter. Section 10.03 Expenses; Indemnity; Damage Waiver. (a) The Borrower shall pay: (i) all reasonable and documented out of pocket expenses incurred by the Administrative Agent, the Lenders, and the Lead Arrangers in connection with the preparation, documentation, negotiation, execution and delivery of the Loan Documents, including, but not limited to, travel expenses, drafting and printing of the marketing materials, the reasonable fees, charges and disbursements of one outside counsel for the Administrative Agent and the Lead Arrangers, provided that, each of the Administrative Agent, each Lender, and the Lead Arrangers acknowledges and agrees that (x) any such out-of-pocket expenses (excluding, for the avoidance of doubt, fees, costs and expenses of counsel (which shall be subject to clause (ii) of this Section 10.03(a)) and any costs related to Debt domain or any other similar electronic platform) exceeding $5,000 (individually or in the aggregate) incurred by the Lead Arrangers or its respective Affiliates in connection with the syndication of the Facility prior to the date hereof shall be approved by the Borrower (such approval not to be unreasonably withheld, conditioned or delayed), and (y) the obligation to reimburse the Administrative Agent, the Lenders and the Lead Arrangers for the costs and expenses of counsel incurred in connection with the preparation, negotiation and execution of the Loan Documents shall be subject to the agreements with respect thereto among the Borrower, the Administrative Agent, the Lead Arrangers and such counsel (as applicable); (ii) all reasonable and documented out-of-pocket costs and expenses incurred by the Administrative Agent or any Lender, including the reasonable fees, charges and disbursements of counsel for the Administrative Agent or the Lenders (which shall be limited to one outside counsel in each relevant jurisdiction), in connection with the Facility or any amendment, supplement, modification, waiver or consent related thereto; and (iii) all costs and expenses incurred by the Administrative Agent or any Lender (including documented external counsel fees and out-of-pocket expenses), if any, in connection with the preservation of rights under or with respect to, or enforcement of, this Agreement (whether through negotiations, legal proceedings or otherwise), including the enforcement of the reimbursement rights under this Section 10.03 and in connection with any workout or restructuring in respect of the Loans. (b) The Borrower shall indemnify the Administrative Agent and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses, including the fees, charges and disbursements of any counsel for any Indemnitee, incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of any actual or prospective claim, litigation, investigation or proceeding, whether or not such investigation, action or proceeding is brought by you, your equity holders, creditors, another Indemnitee or any other Person, whether or not an Indemnified Person is otherwise a party thereto, in any way relating to, arising out of, in connection with or by reason of (whether based on contract, tort or any other theory (including any investigation of, preparation for, or defense of any pending or threatened claim, investigation, litigation or proceeding)) (i) the execution, delivery or performance of any Loan Document or any agreement or instrument contemplated hereby (ii) the consummation of the Transactions or any other transactions
81 contemplated hereby, (iii) any Commitment, Loan or the use of the proceeds therefrom, or (iv) any actual or alleged presence or Release of Hazardous Materials on or from any property owned or operated by the Borrower or its Subsidiaries and any other Environmental Liability related in any way to the Borrower or any of its Subsidiaries; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) result from the gross negligence, bad faith or willful misconduct of such Indemnitee (or any of its Related Parties) or from the material breach by such Indemnitee (or any of its Related Parties) of any obligation under the Loan Documents, in each case, as determined by a court of competent jurisdiction by final and non-appealable judgment or (y) result from a dispute solely among Indemnitees (other than any claims against an Indemnitee in its capacity or in fulfilling its role as the Administrative Agent, Lead Arrangers or similar role under the Loan Documents) and not arising out of any act or omission by the Borrower or any of its Affiliates. This Section 10.03(b) shall not apply with respect to Taxes other than any Taxes that represent losses, claims or damages arising from any non-Tax claim. (c) To the extent that the Borrower fails to pay any amount required to be paid by it to the Administrative Agent under paragraph (a) or (b) of this Section, and without limiting the Borrower’s obligation to do so, each Lender severally agrees to pay to the Administrative Agent such Lender’s Pro-Rata Share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount; provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent in its capacity as such. (d) To the fullest extent permitted by applicable Law, no party hereto shall assert, or permit any of its Affiliates or Related Parties to assert, and each such party hereby waives, any claim against any other party hereto or any Indemnitee (i) for any damages arising from the use by others of information or other materials obtained through telecommunications, electronic or other information transmission systems (including the Internet, the Platform or any other customary electronic platform or messaging service); provided that such waiver shall not, as to any Person, be available to the extent that such damages are determined by a court of competent jurisdiction by final, non-appealable judgment to have resulted from the bad faith, gross negligence or willful misconduct of, or a breach of the Loan Documents by, such Person or its Affiliates or Related Parties, or (ii) on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Loan Document or any agreement or instrument contemplated thereby, the Transactions, any Loan or the use of the proceeds thereof; provided that, nothing in this clause (d) shall relieve the Borrower of any obligation they may have to indemnify or reimburse an Indemnitee against special, indirect, consequential or punitive damages asserted against such Indemnitee by a third party. (e) All amounts due under this Section shall be payable promptly after written demand therefor. Section 10.04 Successors and Assigns. (a) The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and its respective successors and assigns permitted hereby, except that (i) the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of each Lender (and any attempted assignment or transfer by the Borrower without such consent shall be null and void) and (ii) no Lender may assign or otherwise transfer its rights or obligations hereunder except in accordance with this Section. Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto,
82 its respective successors and assigns permitted hereby, Participants (to the extent provided in paragraph (c) of this Section) and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement. (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below, any Lender may assign all or a portion of its rights and obligations under the Loan Documents (including all or a portion of its Commitment and the Loans at the time owing to it) with the prior written consent (such consent not to be unreasonably withheld, conditioned or delayed) of: (A) the Borrower; provided that, no consent of the Borrower shall be required for an assignment to (i) an Initial Lender, (ii) an Affiliate of an Initial Lender provided that such assignment will not increase the payments due from the Borrower under Section 2.11 or 2.13 at the time of such assignment or such increased payments are waived or otherwise assumed by such transferee or assignee of such Loan, (iii) the Lenders previously identified and agreed to by the Lead Arrangers and the Borrower in connection with the syndication of the Facility to occur promptly following the Closing Date, (iv) any other Lender previously approved by the Borrower or (v) if an Event of Default has occurred and is continuing at the time of such assignment, to any other assignee, but the Administrative Agent shall nonetheless send notice of such assignment to the Borrower; and provided, further, that the Borrower’s failure to consent to an assignment to (1) a Fund (excluding any Fund that is a Lender previously approved by the Borrower), (2) to any assignee that, on the date of such assignment, is reasonably expected to increase the payments due from the Borrower under Section 2.11 or 2.13 (provided that such assignee shall be entitled to the benefits of Sections 2.11 and 2.13 resulting from a Change in Law that occurs after the assignee acquired the applicable Loan), or (3) a competitor of the Borrower and its Subsidiaries (or an Affiliate of any such competitor), in each case, shall not be deemed to be unreasonably withheld; and (B) the Administrative Agent, provided that no such consent shall be required for an assignment of any Commitment to an assignee that is a Lender or an Affiliate of a Lender with a Commitment immediately prior to giving effect to such assignment. (ii) Assignments shall be subject to the following additional conditions: (A) except in the case of an assignment to a Lender, an Affiliate of a Lender or of the entire remaining amount of the assigning Lender’s Commitment or Loans, the amount of the Commitment or Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent) shall not be less than $2,500,000, unless the Borrower and the Administrative Agent otherwise consent; (B) each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement;
83 (C) the parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of $3,500; provided, that the Administrative Agent may, in its sole discretion, elect to waive such proceeding and recordation fee in the case of any assignment; and (D) the assignee, if it shall not be a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire in which the assignee designates one or more credit contacts at such assignee to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Related Parties or its respective securities) will be made available and who may receive such information in accordance with the assignee’s compliance procedures and applicable Laws, including Federal and state securities Laws. (iii) Subject to acceptance and recording thereof pursuant to paragraph (b)(iv) of this Section, from and after the effective date specified in each Assignment and Assumption the assignee thereunder shall be a party hereto and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto but shall continue to be entitled to the benefits of (and subject to the obligations and limitations of) Sections 2.11, 2.12, 2.13 and 10.03 and any fees payable hereunder that have accrued for such Lender’s account but have not yet been paid). Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this Section 10.04 shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with paragraph (c) of this Section. (iv) The Administrative Agent, acting solely for this purpose as a non- fiduciary agent of the Borrower, shall maintain at one of its offices a copy of each Assignment and Assumption delivered to it and a register for the recordation of the names and addresses of the Lenders, and the Commitment of, and principal amount (and stated interest) of the Loans owing to, each Lender pursuant to the terms hereof from time to time (the “Register”). The entries in the Register shall be conclusive absent manifest error, and the Borrower, the Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender, at any reasonable time and from time to time upon reasonable prior notice. (v) Upon its receipt of a duly completed Assignment and Assumption executed by an assigning Lender and an assignee, the assignee’s completed Administrative Questionnaire (unless the assignee shall already be a Lender hereunder), the processing and recordation fee referred to in paragraph (b) of this Section and any written consent to such assignment required by paragraph (b) of this Section, the Administrative Agent shall accept such Assignment and Assumption and record the information contained therein in the Register; provided that if either the assigning Lender or the assignee shall have failed to make any payment required to be made by it pursuant to Section 2.04(b), Section 2.13(d)
84 or Section 10.03(c), the Administrative Agent shall have no obligation to accept such Assignment and Assumption and record the information therein in the Register unless and until such payment shall have been made in full, together with all accrued interest thereon. No assignment shall be effective for purposes of this Agreement unless it has been recorded in the Register as provided in this paragraph. (c) Any Lender may, without the consent of the Borrower or the Administrative Agent, sell participations to one or more Persons (other than the Borrower or any of its Affiliates, or a natural Person (or a holding company, investment vehicle or trust known by such Lender after reasonable inquiry to be for, or owned and operated for the primary benefit of, a natural Person)) (a “Participant”), in all or a portion of such Lender’s rights and obligations under this Agreement (including all or a portion of its Commitment and the Loans owing to it); provided that (A) such Lender’s obligations under this Agreement shall remain unchanged; (B) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations; and (C) the Borrower, the Administrative Agent and the other Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in the first proviso to Section 10.02(b) that directly and adversely affects such Participant. The Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.11, 2.12 and 2.13 (subject to the requirements and limitations therein, including the requirements under Section 2.13(f) (it being understood that the documentation required under Section 2.13(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to paragraph (b) of this Section; provided that such Participant (A) agrees to be subject to the provisions of Section 2.15 as if it were an assignee under paragraph (b) of this Section; and (B) shall not be entitled to receive any greater payment under Section 2.11 or 2.13, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at the Borrower’s request and expense, to use reasonable efforts to cooperate with the Borrower to effectuate the provisions of Section 2.15 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 10.08 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.14(c) as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Loan Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans or its other obligations under any Loan Document) to any Person except to the extent that such disclosure is necessary to establish that such Commitment, Loan, or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations and Section 1.163-5(b) of the proposed United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.
85 Any Lender may, without the consent of the Borrower or the Administrative Agent, at any time pledge or assign a security interest in all or any portion of its rights under this Agreement to secure obligations of such Lender, including without limitation any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank; provided that no such pledge or assignment of a security interest shall release a Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto. Section 10.05 Survival. All covenants, agreements, representations and warranties made by the Borrower in the Loan Documents and in the certificates or other instruments delivered in connection with or pursuant to any Loan Document shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of the Loan Documents and the making of any Loans, regardless of any investigation made by any such other party or on its behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default or Event of Default at the time any credit is extended hereunder, and shall continue in full force and effect as long as the principal of or any accrued interest on any Loan or any fee or any other amount payable under this Agreement is outstanding and unpaid and so long as the Commitments have not expired or terminated. The provisions of Sections 2.10, 2.11, 2.13 and 10.03 and Article VIII shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the repayment of the Loans and the Commitments or the termination of this Agreement or any provision hereof. Section 10.06 Counterparts; Integration; Effectiveness; Electronic Execution. (a) This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement, the other Loan Documents and any separate letter agreements with respect to fees payable to the Administrative Agent constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 4.01, this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and inure to the benefit of the parties hereto and its respective permitted successors and assigns. (b) Delivery of an executed counterpart of a signature page of this Agreement by telecopy, facsimile, electronic mail (including pdf) or any other electronic means complying with the U.S. federal ESIGN Act of 2000 or the New York State Electronic Signatures and Records Act or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes to the fullest extent permitted by applicable Law. For the avoidance of doubt, the foregoing also applies to any amendment, extension or renewal of the agreement. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Agreement and the transactions contemplated hereby shall be deemed to include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act. Each of the parties hereto represents and warrants to the other party/ies that is has the corporate capacity and authority to
86 execute this Agreement through electronic means and there are no restrictions for doing so in that party’s constitutive documents. Section 10.07 Severability. Any provision of this Agreement held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a particular jurisdiction shall not invalidate such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section, if and to the extent that the enforceability of any provision of this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent, then such provision shall be deemed to be in effect only to the extent not so limited. Section 10.08 Right of Setoff. If an Event of Default shall have occurred and be continuing, each Lender and each of its Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted by Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final) at any time held and other matured obligations at any time owing by such Lender or Affiliate to or for the credit or the account of the Borrower against any of and all the matured obligations of the Borrower now or hereafter existing under this Agreement held by such Lender, irrespective of whether or not such Lender shall have made any demand under this Agreement and although such obligations are owed to a branch or office of such Lender different from the branch or office holding such deposit or obligated on such indebtedness. The applicable Lender shall notify the Borrower and the Administrative Agent in writing of such setoff and application; provided that any failure to give or any delay in giving such notice shall not affect the validity of any such setoff and application under this Section. The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. Section 10.09 Governing Law; Jurisdiction; Consent to Service of Process. (a) This Agreement and the other Loan Documents and any claim, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Agreement or any other Loan Document (in each case, except as expressly set forth in any other Loan Document) shall be construed in accordance with and governed by the law of the State of New York. (b) The Borrower hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Supreme Court of the State of New York sitting in New York County, Borough of Manhattan, and of the United States District Court for the Southern District of New York sitting in New York County, and any appellate court from any thereof, in any action or proceeding arising out of or relating to any Loan Document, or for recognition or enforcement of any judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding shall be heard and determined in such New York State or, to the extent permitted by law, in such Federal court. Each of the parties hereto agrees that a final judgment in any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in any Loan Document shall affect any right that the Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to any Loan Document against the Borrower or its properties in the courts of any jurisdiction.
87 (c) The Borrower hereby irrevocably and unconditionally waives, to the fullest extent it may legally and effectively do so, any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to any Loan Document in any court referred to in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court. (d) Each party to this Agreement irrevocably consents to service of process in the manner provided for notices in Section 10.01. Nothing in any Loan Document will affect the right of any party to this Agreement to serve process in any other manner permitted by law. THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT SERVICE OF ALL WRITS, PROCESS AND SUMMONSES IN ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN THE STATE OF NEW YORK MAY BE MADE UPON CT CORPORATION SYSTEM, AT 28 LIBERTY STREET, NEW YORK, NEW YORK 10005, UNITED STATES OF AMERICA (THE “PROCESS AGENT”) AND THE BORROWER HEREBY CONFIRMS AND AGREES THAT THE PROCESS AGENT HAS BEEN DULY AND IRREVOCABLY APPOINTED (AND HAS ACCEPTED ITS APPOINTMENT) AS ITS RESPECTIVE AGENT TO ACCEPT SUCH SERVICE OF ANY AND ALL SUCH WRITS, PROCESSES AND SUMMONSES, AND AGREES THAT THE FAILURE OF THE PROCESS AGENT TO GIVE ANY NOTICE OF ANY SUCH SERVICE OF PROCESS TO THE BORROWER SHALL NOT IMPAIR OR AFFECT THE VALIDITY OF SUCH SERVICE OR OF ANY JUDGMENT BASED THEREON. IF THE PROCESS AGENT SHALL CEASE TO SERVE AS AGENT FOR THE BORROWER, THE BORROWER SHALL PROMPTLY APPOINT A SUCCESSOR AGENT SATISFACTORY TO THE ADMINISTRATIVE AGENT. THE BORROWER HEREBY FURTHER AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. Section 10.10 WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION. Section 10.11 Headings. Article and Section headings and the Table of Contents used herein are for convenience of reference only, are not part of this Agreement and shall not affect the construction of, or be taken into consideration in interpreting, this Agreement. Section 10.12 Confidentiality. Each of the Administrative Agent and the Lenders agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its and its Affiliates’ directors, officers, partners, employees, agents, including accountants, legal counsel and other advisors and independent auditors (collectively, the “Representatives”) (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) upon the request or demand of any governmental agency or regulatory authority (including any self-regulatory authority) having
88 jurisdiction over such Person or any of its Affiliates; provided that, in each case, such Person agrees, except with respect to any audit or examination conducted by bank accountants or any regulatory authority or self- regulatory authority exercising examination or regulatory authority, to the extent permitted by Law (in which case the disclosing party shall inform the Borrower promptly thereof to the extent practicable and permitted by applicable Law), (c) pursuant to the order of any court or administrative agency in, or to the extent reasonably necessary in connection with, any pending legal, judicial or administrative proceeding, or otherwise as required by applicable Law, rule or regulation or by any subpoena or similar legal process (in which case the disclosing party shall inform the Borrower promptly thereof to the extent practicable and permitted by applicable Law), (d) to any other party to this Agreement, (e) in connection with the exercise of any remedies hereunder or any suit, action or proceeding relating to this Agreement or the enforcement of rights hereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or prospective Participant in, any of its rights or obligations under this Agreement or (ii) any actual or prospective counterparty (or its advisors) to any swap or derivative transaction relating to the Borrower and its obligations under the Loan Documents, (g) with the consent of the Borrower, (h) to the extent such Information (i) becomes publicly available other than as a result of a breach of this Section, (ii) becomes available to the Administrative Agent or any Lender on a non- confidential basis from a source other than the Borrower or (iii) to the extent that such Information is independently developed by the Administrative Agent or the Lenders without the using or otherwise reflecting of such Information or (i) on a confidential basis to the CUSIP bureau in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the Facility. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and publicly available information about this Agreement to market data collectors, similar services providers to the lending industry, and service providers to the Lead Arrangers and the Lenders in connection with the administration and management of this Agreement, the other Loan Documents, the Commitments and the Borrowings hereunder. The Administrative Agent and Lenders shall also have permission to use the names and logos of the Borrower in the Administrative Agent’s or its respective affiliates’ marketing materials, subject to the Borrower’s prior written consent (not to be unreasonably withheld, conditioned or delayed). For the purposes of this Section, “Information” means all information received from the Borrower relating to the Borrower or its business, other than any such information that is available to the Administrative Agent or any Lender on a non-confidential basis prior to disclosure by the Borrower ; provided that, in the case of information received from the Borrower after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information. Section 10.13 Material Non-Public Information. (a) EACH LENDER ACKNOWLEDGES THAT INFORMATION (AS DEFINED IN SECTION 10.12) FURNISHED TO IT PURSUANT TO THIS AGREEMENT MAY INCLUDE MATERIAL NON-PUBLIC INFORMATION CONCERNING THE BORROWER AND ITS RELATED PARTIES OR ITS RESPECTIVE SECURITIES, AND CONFIRMS THAT IT HAS DEVELOPED COMPLIANCE PROCEDURES REGARDING THE USE OF MATERIAL NON-PUBLIC INFORMATION AND THAT IT WILL HANDLE SUCH MATERIAL NON-PUBLIC INFORMATION IN ACCORDANCE WITH THOSE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. (b) ALL INFORMATION NOT MARKED “PUBLIC”, INCLUDING REQUESTS FOR WAIVERS AND AMENDMENTS, FURNISHED BY THE BORROWER OR THE ADMINISTRATIVE AGENT PURSUANT TO, OR IN THE COURSE OF ADMINISTERING,
89 THIS AGREEMENT WILL BE SYNDICATE-LEVEL INFORMATION, WHICH MAY CONTAIN MATERIAL NON-PUBLIC INFORMATION ABOUT THE BORROWER AND ITS RELATED PARTIES OR ITS RESPECTIVE SECURITIES. ACCORDINGLY, EACH LENDER REPRESENTS TO THE BORROWER AND THE ADMINISTRATIVE AGENT THAT IT HAS IDENTIFIED IN ITS ADMINISTRATIVE QUESTIONNAIRE A CREDIT CONTACT WHO MAY RECEIVE INFORMATION THAT MAY CONTAIN MATERIAL NON- PUBLIC INFORMATION IN ACCORDANCE WITH ITS COMPLIANCE PROCEDURES AND APPLICABLE LAW, INCLUDING FEDERAL AND STATE SECURITIES LAWS. Section 10.14 Interest Rate Limitation. Notwithstanding anything to the contrary contained in any Loan Document, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable Law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable Law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate. To the extent lawful, the interest and Charges that would have been paid in respect of such Loan but were not paid as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the amount collectible at the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Effective Rate for each day to the date of repayment, shall have been received by such Lender. Any amount collected by such Lender that exceeds the maximum amount collectible at the Maximum Rate shall be applied to the reduction of the principal balance of such Loan or refunded to the Borrower so that at no time shall the interest and charges paid or payable in respect of such Loan exceed the maximum amount collectible at the Maximum Rate. Section 10.15 Judgment Currency. (a) If, for the purpose of obtaining judgment in any court, it is necessary to convert a sum owing hereunder in one currency into another currency, each party hereto agrees, to the fullest extent that it may effectively do so, that the rate of exchange used shall be that at which, in accordance with normal banking procedures in the relevant jurisdiction, the first currency could be purchased with such other currency on the Business Day immediately preceding the day on which final judgment is given. (b) If any party hereto or any holder of any obligation owing hereunder (the “Applicable Creditor”) obtains a judgment or judgments against the Borrower in a currency other than the currency required to be payable hereunder (the “Agreement Currency”), any obligations of the Borrower in respect of any sum adjudged to be due to the Applicable Creditor hereunder (the “Judgment Amount”) shall be discharged only to the extent that, on the Business Day following receipt by the Applicable Creditor of the Judgment Amount in such other currency, the Applicable Creditor, in accordance with normal banking procedures in the relevant jurisdiction, may purchase the Agreement Currency with the Judgment Amount in such other currency. If the amount of the Agreement Currency so purchased is less than the amount of the Agreement Currency that could have been purchased with the Judgment Amount on the date or dates the Judgment Amount was originally due and owing (the “Original Due Date”) to the Applicable Creditor (the “Loss”), the Borrower agrees as a separate obligation and notwithstanding any such judgment, to indemnify the Applicable Creditor against the Loss, and if the amount of the Agreement Currency so purchased exceeds the amount of the Agreement Currency that could have been purchased with the Judgment Amount on the Original Due Date, the Applicable Creditor agrees to remit such excess to the Borrower (as applicable). The obligations of the Borrower under this Section 10.15 shall survive the termination of this Agreement and the payment of all other amounts owing hereunder.
90 (c) The Borrower waives any right it may have in any jurisdiction to pay any amount under the Loan Documents in a currency or currency unit other than that in which it is expressed to be payable. Section 10.16 Waiver of Immunity. The Borrower acknowledges and agrees that the activities contemplated by the provisions of the Loan Documents are commercial in nature rather than governmental or public and therefore acknowledges and agrees that the Borrower is not entitled to any right of immunity on the grounds of sovereignty or otherwise with respect to such activities or in any legal action or proceeding arising out of or relating to the Loan Documents. To the extent permitted by applicable Law, The Borrower, in respect of itself, its process agents and its properties (including its Subsidiaries) and revenues, expressly and irrevocably waives any such right of immunity which may now or hereafter exist (including any immunity from the jurisdiction of any court or from any suit, execution, attachment (whether provisional or final, in aid of execution, prior to judgment or otherwise) or other legal process (including in any jurisdiction where immunity (whether or not claimed) may be attributed to it or its assets)) or claim thereto which may now or hereafter exist and irrevocably agrees not to assert any such right or claim of immunity in any such action or proceeding to the fullest extent permitted now or in the future by the laws of any such jurisdiction. The Borrower agrees that the waivers set forth in this Section 10.16 shall have the fullest effect permitted under applicable Law, including the Foreign Sovereign Immunities Act of 1976 of the United States of America (28 U.S.C. §§1602-1611) (the “FSIA”), and are intended to be irrevocable and not subject to withdrawal for purposes of the FSIA. Section 10.17 USA PATRIOT Act. Each Lender and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “PATRIOT Act”) and the requirements of the Beneficial Ownership Regulation, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name, address and tax identification number of the Borrower and other information that will allow such Lender or Administrative Agent, as applicable, to identify the Borrower in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. Section 10.18 No Advisory or Fiduciary Responsibility. In connection with all aspects of the Transactions (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, and acknowledges its Affiliates’ understanding, that: (i) (A) the transactions contemplated by the Loan Documents (including the exercise of rights and remedies hereunder and thereunder) are arm’s- length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent, the Lead Arrangers and the Lenders, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the Transactions; (ii) (A) the Administrative Agent, the Lead Arrangers and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower, its stockholders or any of its Affiliates (irrespective of whether any Lender has advised, is currently advising or will advise the Borrower, its stockholders or its Affiliates on other matters), or any other Person and (B) neither the Administrative Agent, the Lead Arrangers nor any Lender has any obligation to the Borrower or any of its respective Affiliates with respect to the Transactions except those obligations (if any) expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Lead Arrangers and the Lenders and its respective Affiliates may be engaged in a broad range of transactions that involve economic interests that conflict with those of and the Borrower, its stockholders and/or its Affiliates, and neither the Administrative Agent, the Lead Arrangers nor any Lender has any obligation to disclose any of such interests to the Borrower or any of its respective Affiliates. The Borrower agrees that nothing in the Loan Documents or otherwise will be deemed to create an advisory, fiduciary or agency relationship or fiduciary or other implied duty between any Lender on the one hand,
91 and the Borrower, its stockholders or its Affiliates, on the other. To the fullest extent permitted by law, the Borrower hereby waives and releases any claims that it may have against the Administrative Agent, each of the Lead Arrangers, any Lender or the respective Affiliates of each of the foregoing with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby. Section 10.19 Acknowledgment and Consent to Bail-In of Affected Financial Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender that is an Affected Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the Write-Down and Conversion Powers of the applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by: (a) the application of any Write-Down and Conversion Powers by the applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an Affected Financial Institution; and (b) the effects of any Bail-In Action on any such liability, including, if applicable: (i) a reduction in full or in part or cancellation of any such liability; (ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such Affected Financial Institution, its parent entity, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or (iii) the variation of the terms of such liability in connection with the exercise of the Write-Down and Conversion Powers of the applicable Resolution Authority. The provisions of this Section 10.19 are intended to comply with, and shall be interpreted in light of, Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union. Section 10.20 Electronic Execution of Assignments and Certain Other Documents. The words “execution,” “execute”, “signed,” “signature,” and words of like import in or related to any Loan Document or other document to be signed in connection with this Agreement (including, without limitation, Assignment and Assumptions, amendments or other modifications hereof, the Borrowing Request, certificates, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act or any other similar state laws based on the Uniform Electronic Transactions Act. Each of the parties hereto represents and warrants to the other parties that is has the corporate capacity and authority to execute such Loan Document through electronic means and there are no restrictions for doing so in that party’s constitutive documents. [Signature pages follow]
[Signature page to Bridge Loan Agreement] MILLICOM INTERNATIONAL CELLULAR S.A., as Borrower By: Name: Patrick Gill Title: Vice President Risk Management and Corporate Governance By: Name: Bruno Nieuwland Title: Director Administration DocuSign Envelope ID: 2920E0A0-E017-4FFD-A447-E15FD85D6503
GOLDMAN SACHS BANK USA, as Initial Lender By: Name: Title: Colette Pithie l~uthorised Signatory [Signature Page to Bridge Loan Agreement]
[Signature Page to Bridge Loan Agreement] JPMORGAN CHASE BANK, N.A., as Initial Lender By: Name: Title:
[Signature Page to Bridge Loan Agreement] MORGAN STANLEY SENIOR FUNDING, INC., as Initial Lender By: Name: Title: Jennifer DeFazio Authorized Signatory
[Signature Page to Bridge Loan Agreement] JPMORGAN CHASE BANK, N.A., as Administrative Agent By: Name: Title:
[Signature Page to Bridge Loan Agreement] SCHEDULE I INITIAL LENDERS AND COMMITMENTS Lender Commitment Goldman Sachs Bank USA $806,250,000 JPMorgan Chase Bank, N.A. $806,250,000 Morgan Stanley Senior Funding, Inc. $537,500,000 Total: $2,150,000,000
[Signature Page to Bridge Loan Agreement] SCHEDULE II ADMINISTRATIVE AGENT'S OFFICE, CERTAIN ADDRESSES FOR NOTICES 1) If to the Borrower, to it, at: Millicom International Cellular S.A. 2 rue du Fort-Bourbon L-1249 Luxembourg Attention: Office of the General Counsel Email: [email protected]; [email protected] 2) If to the Administrative Agent, to it, at: JPMorgan Chase Bank, N.A. Address: 500 Stanton Christiana Rd, Floor 01, Newark, DE, 19713-2105, United States Attention: Christopher Bickert Email: [email protected] with a copy to [email protected] Fax: [email protected]
EXHIBIT A FORM OF ASSIGNMENT AND ASSUMPTION This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between the Assignor identified in item 1 below (the “Assignor”) and the Assignee identified in item 2 below (the “Assignee”). Capitalized terms used but not defined herein shall have the meanings given to them in the Loan Agreement identified below (as amended, restated, supplemented or otherwise modified, the “Loan Agreement”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full. For an agreed consideration, the Assignor hereby irrevocably sells and assigns to the Assignee, and the Assignee hereby irrevocably purchases and assumes from the Assignor, subject to and in accordance with the Standard Terms and Conditions and the Loan Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of the Assignor’s rights and obligations in its capacity as a Lender under the Loan Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of the Assignor under the respective facilities identified below and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of the Assignor (in its capacity as a Lender) against any Person, whether known or unknown, arising under or in connection with the Loan Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by the Assignor to the Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as the “Assigned Interest”). Each such sale and assignment is without recourse to the Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by the Assignor. 1. Assignor: ______________________________ 2. Assignee: ______________________________ [and is [a Lender][an [Affiliate] of [identify Lender]1]]. 3. Borrower: Millicom International Cellular S.A. 4. Administrative Agent: [_______________________], as the administrative agent under the Loan Agreement. 5. Loan Agreement: The Bridge Loan Agreement, dated as of November 10, 2021 (as amended, supplemented or otherwise modified from time to time), by and among Millicom International Cellular S.A, a limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B40630 (the 1 Select as applicable.
“Borrower”), the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. 6. Assigned Interest: Aggregate Amount of Commitment / Loans for all Lenders Amount of Commitment / Loans Assigned Percentage Assigned of Commitment/Loans2 $ $ % $ $ % $ $ % Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.] The Assignee, if not already a Lender, agrees to deliver to the Administrative Agent a completed Administrative Questionnaire in which the Assignee designates one or more credit contacts to whom all syndicate-level information (which may contain material non-public information about the Borrower and its Related Parties or its respective securities) will be made available and who may receive such information in accordance with the Assignee’s compliance procedures and applicable laws, including Federal and state securities laws. The terms set forth in this Assignment and Assumption are hereby agreed to: ASSIGNOR [NAME OF ASSIGNOR] By:__________________________________________ Title: ASSIGNEE [NAME OF ASSIGNEE] By:__________________________________________ Title: 2 Set forth, to at least 9 decimals, as a percentage of the Commitments/Loans of all Lenders.
[Consented to and]3 Accepted: JPMORGAN CHASE BANK, N.A., as Administrative Agent By:_____________________________________ Name: Title: [Consented to: MILLICOM INTERNATIONAL CELLULAR S.A., as the Borrower By:_____________________________________ Title: By:_____________________________________ Title:]4 3 To be added only if the consent of the Administrative Agent is required by Section 10.04. 4 To be added only if the consent of the Borrower is required by the terms of the Loan Agreement.
STANDARD TERMS AND CONDITIONS FOR ASSIGNMENT AND ASSUMPTION 1. Representations and Warranties. 1.1 Assignor. The Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is not a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Loan Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of its respective obligations under any Loan Document. 1.2. Assignee. The Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Loan Agreement, (ii) it meets all the requirements to be an assignee under Section 10.04 of the Loan Agreement (subject to such consents, if any, as may be required thereunder), (iii) from and after the Effective Date, it shall be bound by the provisions of the Loan Agreement as a Lender thereunder and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it has received a copy of the Loan Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (v) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase the Assigned Interest, (vi) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type (vii) it is not a competitor of the Borrower and its Subsidiaries or an Affiliate of any such competitor, and (viii) attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Loan Agreement, duly completed and executed by the Assignee and (ix) it is not a Defaulting Lender; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, the Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with its terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender. 2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of the Assigned Interest (including payments of principal, interest, fees and other amounts) to the Assignor for amounts which have accrued to but excluding the Effective Date and to the Assignee for amounts which have accrued from and after the Effective Date. Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to the Assignee.
3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and its respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Acceptance and adoption of the terms of this Assignment and Assumption by the Assignee and the Assignor by Electronic Signature complying with the U.S. federal ESIGN Act of 2000 or the New York State Electronic Signature and Records Act or delivery of an executed counterpart of a signature page of this Assignment and Assumption by any Electronic System shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.
EXHIBIT B FORM OF COMPLIANCE CERTIFICATE To: JPMorgan Chase Bank, N.A., as Administrative Agent From: Millicom International Cellular S.A. Dated: [_____] Millicom International Cellular S.A.– Senior Unsecured Bridge Facility dated November 10, 2021 Reference is hereby made to the Bridge Loan Agreement dated as of November 10, 2021 (as amended, supplemented or otherwise modified from time to time, the “Loan Agreement”) by and among Millicom International Cellular S.A., a limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B40630 (the “Borrower”), the Lenders party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. This is a Compliance Certificate under the Loan Agreement. Capitalized terms used in this Compliance Certificate and not otherwise defined herein shall have the meanings assigned to such terms in the Loan Agreement. Pursuant to Section 5.01(a) of the Loan Agreement, the undersigned, solely in his/her capacity as an Authorized Officer of the Borrower and not in his/her individual capacity, hereby certifies that: 1. Below is a calculation of the Total Net Leverage Ratio of the Borrower in respect of the Financial Quarter ending on , 20[ ]; Total Net Leverage Ratio: (a) Consolidated Net Debt of the Borrower USD [ ] (b) Consolidated EBITDA of the Borrower USD [ ] (c) Ratio of (a) to (b) [ ]:1.00 2. [no Default or Event of Default is continuing.]5 5 If this statement cannot be made, the certificate should identify any Default that is continuing and the steps, if any, being taken to remedy it.
IN WITNESS WHEREOF, the Borrower has executed or caused this Compliance Certificate to be executed as of the date first written above. MILLICOM INTERNATIONAL CELLULAR S.A., as Borrower By: Name: Title: By: Name: Title
EXHIBIT C FORM OF BORROWING REQUEST Date: November [__], 2021 JPMorgan Chase Bank. N.A. as Administrative Agent 500 Stanton Christiana Rd Newark, DE, 19713-2105 United States Attention: Christopher Bickert Email: [email protected] with a copy to [email protected] Ladies and Gentlemen: Reference is made to that certain Bridge Loan Agreement, dated as of November 10, 2021 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “Loan Agreement”), among Millicom International Cellular S.A., a limited liability company (société anonyme) organized under the laws of the Grand Duchy of Luxembourg, having its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, and registered with the Luxembourg Register of Commerce and Companies (R.C.S. Luxembourg) under number B40630 (the “Borrower”), the Lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent. Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to them in the Loan Agreement. The Borrower hereby requests a Borrowing under the Loan Agreement as described below: 1. The Business Day of the proposed Borrowing is November [__], 2021. 2. The aggregate amount of the requested Borrowing is $2,150,000,000. 3. The Borrower hereby instructs the Administrative Agent to transfer the proceeds of the Borrowing in accordance with the funds flow attached as Annex I. [Signature Page Follows]
[Signature page to Borrowing Request] IN WITNESS WHEREOF, the undersigned has duly executed this notice as of the date first written above. MILLICOM INTERNATIONAL CELLULAR S.A. By: Name: Title: By: Name: Title:
EXECUTION VERSION STOCK PURCHASE AGREEMENT dated as of November 11, 2021 among MILLICOM INTERNATIONAL II N.V., SHAI HOLDING S.A. and MIFFIN ASSOCIATES CORP. relating to the purchase and sale of the Companies referred to herein
i TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS Section 1.01. Definitions.....................................................................................................1 Section 1.02. Other Definitional and Interpretative Provisions ..........................................5 ARTICLE 2 PURCHASE AND SALE Section 2.01. Purchase and Sale .........................................................................................6 Section 2.02. Closing ..........................................................................................................6 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER Section 3.01. Corporate Existence and Power ....................................................................8 Section 3.02. Capitalization ................................................................................................8 Section 3.03. Corporate Authorization ...............................................................................8 Section 3.04. Governmental Authorization ........................................................................8 Section 3.05. Noncontravention ..........................................................................................8 Section 3.06. Ownership of Shares .....................................................................................8 Section 3.07. Litigation .......................................................................................................8 Section 3.08. Court Orders..................................................................................................9 Section 3.09. Related Party Transactions and Balances .....................................................9 Section 3.10. No Brokers ....................................................................................................9 ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYERS Section 4.01. Corporate Existence and Power ....................................................................9 Section 4.02. Corporate Authorization ...............................................................................9 Section 4.03. Governmental Authorization ........................................................................9 Section 4.04. Noncontravention ........................................................................................10 Section 4.05. Litigation .....................................................................................................10 Section 4.06. Court Orders................................................................................................10 Section 4.07. Investment Purpose .....................................................................................10 Section 4.08. Independent Investigation ...........................................................................10 Section 4.09. No Brokers ..................................................................................................10 ARTICLE 5 COVENANTS OF SELLER Section 5.01. Noncompetition, etc ....................................................................................11
ii ARTICLE 6 COVENANTS OF BUYERS AND/OR SELLER Section 6.01. Notices of Certain Events ...........................................................................12 Section 6.02. Commercially Reasonable Best Efforts; Further Assurances .....................13 Section 6.03. Certain Filings .............................................................................................13 Section 6.04. Payment of Capital Gains Tax ....................................................................13 Section 6.05. Dividends and Miffin Notes........................................................................15 Section 6.06. Closing Shareholders’ Meetings .................................................................16 Section 6.07. Registration of Buyer Leases; Revocation of Appointments ......................17 ARTICLE 7 CONDITIONS TO CLOSING Section 7.01. Conditions to Obligations of Buyers and Seller .........................................18 Section 7.02. Conditions to Obligation of Buyers ............................................................18 Section 7.03. Conditions to Obligation of Seller ..............................................................19 ARTICLE 8 SURVIVAL; INDEMNIFICATION Section 8.01. Survival .......................................................................................................19 Section 8.02. Indemnification ...........................................................................................19 Section 8.03. Third Party Claim Procedures .....................................................................21 Section 8.04. Direct Claim Procedures .............................................................................22 Section 8.05. Exclusive Remedies ....................................................................................23 ARTICLE 9 TERMINATION Section 9.01. Grounds for Termination ............................................................................23 Section 9.02. Effect of Termination ..................................................................................23 ARTICLE 10 WAIVER AND RELEASE; BUYERS AND COMPANY INDEMNIFICATION Section 10.01. Release by Seller .......................................................................................24 Section 10.02. Release by Buyers .....................................................................................24 Section 10.03. Exceptions .................................................................................................24 Section 10.04. Waiver of Legal Rights .............................................................................25 Section 10.05. No Assignment of Released Claims .........................................................25 Section 10.06. No Admission ...........................................................................................25 Section 10.07. Buyer Indemnification ..............................................................................25 Section 10.08. Waiver with Respect to Seller Shares .......................................................26
iii ARTICLE 11 CONFIDENTIALITY Section 11.01. Confidential Information ..........................................................................26 Section 11.02. Disclosure of Confidential Information ....................................................27 Section 11.03. Exceptions to Duty to Keep Confidential .................................................27 Section 11.04. Return of Confidential Information ..........................................................28 Section 11.05. Term of Article 11 ....................................................................................28 ARTICLE 12 NON-DISPARAGEMENT Section 12.01. Non-disparagement Covenant ...................................................................29 ARTICLE 13 MISCELLANEOUS Section 13.01. Notices ......................................................................................................29 Section 13.02. Amendments and Waivers ........................................................................30 Section 13.03. Expenses ...................................................................................................31 Section 13.04. Successors and Assigns.............................................................................31 Section 13.05. Governing Law .........................................................................................31 Section 13.06. Dispute Resolution ....................................................................................31 Section 13.07. WAIVER OF JURY TRIAL .....................................................................32 Section 13.08. Counterparts; Effectiveness; Third Party Beneficiaries ............................32 Section 13.09. Entire Agreement ......................................................................................33 Section 13.10. Severability ...............................................................................................33 Section 13.11. Specific Performance ................................................................................33 Section 13.12. Public Announcements .............................................................................33 Exhibit A Form of Custody Agreement Exhibit B Form of Guarantee Agreement Exhibit C Form of Shareholders’ Meetings Minutes Exhibit D Form of Extension to Buyer Lease
STOCK PURCHASE AGREEMENT AGREEMENT (this “Agreement”) dated as of November 11, 2021, among Millicom International II N.V., a Curaçao limited liability company (“Curaçao Buyer”), Shai Holding S.A., a Luxembourg société anonyme (“Luxembourg Buyer” and, together with Curaçao Buyer, “Buyers” and each, a “Buyer”) and Miffin Associates Corp., a Panamanian corporation (“Seller”). W I T N E S S E T H: WHEREAS, each of (i) Comunicaciones Corporativas, S.A. (“COMCORP”), (ii) Comunicaciones Celulares, S.A. (“COMCEL”), (iii) Servicios Innovadores de Comunicación y Entretenimiento, S.A. (“SICESA”), (iv) Distribuidora de Comunicaciones de Occidente, S.A. (“COOCSA”), (v) Distribuidora de Comunicaciones de Oriente, S.A. (“COORSA”), (vi) Distribuidora Internacional de Comunicaciones, S.A. (“INTERNACOM”), (vii) Navega.com, S.A. (“Navega”), (viii) Servicios Especializados en Telecomunicaciones, S.A. (“SESTEL”), (ix) Distribuidora Central de Comunicaciones, S.A. (“COCENSA”) and (x) Cloud 2 Nube, S.A. (“C2N” and, together with COMCORP, COMCEL, SICESA, COOCSA, COORSA, INTERNACOM, Navega, SESTEL and COCENSA, the “Companies” and each, a “Company”) is a Guatemalan corporation (sociedad anónima); WHEREAS, Curaçao Buyer is the record and beneficial owner of 55% of the issued and outstanding shares of stock of the Companies (other than C2N); WHEREAS, Seller is the record and beneficial owner of the remaining 45% of the issued and outstanding shares of stock of the Companies (other than C2N) (the “Non- C2N Seller Shares”); WHEREAS, Millicom Spain S.L., a Spanish private limited company, is the record and beneficial owner of 55% of the issued and outstanding shares of stock of C2N; WHEREAS, Seller is the record and beneficial owner of the remaining 45% of the issued and outstanding shares of stock of C2N (the “C2N Seller Shares” and, together with the Non-C2N Seller Shares, the “Seller Shares”); WHEREAS, Seller desires to sell the Seller Shares to Buyers, and Buyers desire to purchase the Seller Shares from Seller, upon the terms and subject to the conditions hereinafter set forth. The parties, in consideration of the mutual obligations contained herein, the sufficiency of which is hereby expressly acknowledged, hereto agree as follows: ARTICLE 1 DEFINITIONS Section 1.01. Definitions. (a) The following terms, as used herein, have the following meanings:
2 “Affiliate” means, with respect to any Person, any other Person who, as of the relevant time for which the determination of affiliation is being made, directly or indirectly controls, is controlled by or is under common control with such Person; provided that (a) none of the Companies shall be considered an Affiliate of Seller, (b) prior to the Closing none of the Companies shall be considered an Affiliate of Buyers, (c) each of Fundacion Atitlan, Leyvaz Limited, Zanfort Limited, Gellion Limited and Dynam Global Limited and their respective Affiliates and the officers and directors of Leyvaz Limited, Zanfort Limited, Gellion Limited and Dynam Global Limited and their respective Affiliates shall be deemed Affiliates of Seller and (d) Blue Tower Ventures, a British Virgin Island Corporation shall be deemed an Affiliate of Seller. For purposes of this definition, “control” when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have correlative meanings. “Applicable Law” means, with respect to any Person, any transnational, domestic or foreign federal, state or local law (statutory, common or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, order, injunction, judgment, decree, ruling or other similar requirement enacted, adopted, promulgated or applied by a Governmental Authority that is binding upon or applicable to such Person, as amended unless expressly specified otherwise. “Business” means residential, B2B, Pay-TV, OTT, fixed, mobile and/or wireless Internet, mobile and/or fixed telephony services, and/or mobile financial services. “Business Day” means a day, other than Saturday, Sunday or other day on which commercial banks in New York, New York, Luxembourg City, Luxembourg, or Guatemala City, Guatemala are authorized or required by Applicable Law to close. “Buyer Disclosure Schedule” means the disclosure schedule delivered by Buyers to Seller in connection with this Agreement prior to the date hereof. “Buyer Leases” means the leases set forth on Section 1.01 of the Buyer Disclosure Schedule. “Claims” means any and all manner of liabilities, causes of action at law or in equity, claims, complaints, actions, demands, suits, debts, obligations, damages, obligations, indebtedness, amounts owed, dues, judgments, rights of contribution under any Applicable Law, costs, expenses and other claims of any and every kind, arising under any theory of contract, tort, breach of duty, strict liability, negligence, or any other theory of liability or based on any foreign, federal, state, or local law, code, statute, rule or regulation, or the common or civil law of any jurisdiction (in each case, whether known, unknown, disclosed, undisclosed, matured, unmatured, accrued, unaccrued, asserted, unasserted, liquidated, unliquidated, absolute, contingent, direct, indirect, conditional, unconditional, secured, unsecured, vicarious, derivative, due, joint, several or secondary).
3 “Closing Date” means the date of the Closing. “Disclosure Schedule” means the disclosure schedule delivered by the Seller to Buyers in connection with this Agreement prior to the date hereof. “Family Members” means, with respect to any individual, such individual’s spouse, former spouses, domestic partners, ascendants, descendants (including adoptive relationships and stepchildren and stepparents), siblings and the spouse or domestic partners of any of the foregoing individuals. “Fraud” means, with respect to a party, an actual and intentional misrepresentation of a material existing fact with respect to the making of any representation or warranty in Article 3 or Article 4 made by such party, to such party’s actual knowledge, of its falsity and made for the purpose of inducing the other party to act, and upon which the other party justifiably relies with resulting Damages. “Fundamental Warranty” means the representations and warranties contained in any of Sections 3.01, 3.02, 3.03, 3.05(i), 3.06, 3.09, 3.10, 4.01, 4.02, 4.04(i) and 4.09. “Governmental Authority” means any transnational, domestic or foreign federal, state or local governmental, regulatory or administrative authority, department, court, agency, commission or official, including any political subdivision thereof. “Knowledge” of any Person that is (i) not an individual means the knowledge of such Person’s officers after reasonable inquiry and (ii) an individual means the actual knowledge of such Person or knowledge that would be obtained after reasonable inquiry. “Lien” means, with respect to any property or asset, any mortgage, lien, pledge, charge, security interest, encumbrance, restriction on use or transfer or other adverse claim of any kind in respect of such property or asset, including any restriction on the right to vote, sell or otherwise dispose of any capital stock or other voting or equity interest or any restriction on the exercise of any attributes of ownership (other than those under applicable federal, state and foreign securities laws). For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any property or asset which it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such property or asset. “Miffin Notes” means, collectively, (i) that certain promissory note, dated April 22, 2020, issued by Seller to COMCEL, with a principal amount equal to $11,250,000; (ii) that certain promissory note, dated June 1, 2020, issued by Seller to COMCEL, with a principal amount equal to $11,250,000; and (iii) that certain promissory note, dated May 22, 2020, issued by Seller to COMCEL, with a principal amount equal to $10,937,112.26. “Person” means an individual, corporation, partnership, limited liability company, private limited company, public limited company, association, trust or other entity or organization, including a Governmental Authority.
4 “Related Party” means, with respect to a specified Person, (i) such specified Person’s Affiliates, Family Members (if such specified Person is an individual), members, general or limited partners, officers, directors, employees and direct or indirect equity holders; (ii) the Family Members, successors and assigns of any Person covered by the foregoing clause (i); and (iii) with respect to Seller, any Person who is “controlled” (within the meaning set forth in the above definition of “Affiliate”) by Seller’s Affiliates on a consolidated basis. “Side Letter” means a side letter, dated as of the date hereof, among any Seller Owner and Buyers. “Subsidiary” of a Person means a corporation, partnership, limited liability company, association or joint venture or other business entity of which a majority of the equity interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time owned or the management of which is controlled, directly, or indirectly through one or more intermediaries, by such Person. For purposes of this definition, “control” has the same meaning given to such term in the definition of “Affiliate.” (b) Each of the following terms is defined in the Section set forth opposite such term: Term Section 2022 Meeting 6.05(b) Agreement Preamble Buyers Preamble Buyer Released Claims 10.02 Buyer Released Parties 10.02 C2N Recitals C2N Seller Shares Recitals CEO 10.02 Closing 2.02 Closing Shareholders’ Meetings 6.06 COCENSA Recitals COMCEL Recitals COMCORP Recitals COOCSA Recitals COORSA Recitals COMCEL Note 6.04(b) Company Recitals Company Person Indemnitee 10.07 Condition to Closing Shareholders’ Meetings 6.06 Confidential Information 11.01(a) Coupon Aggregate Amount 6.05(b) Coupons 6.05(a)
5 Term Section Curaçao Buyer Preamble Custody Agreement 6.04(b) Damages 8.02 Direct Claim 8.04 Dispute 13.06(a) Documents Evidencing Payment of Tax 6.04(a) e-mail 13.01 Final Tax Amount 6.04 Foundation 6.07(c) Guarantee Agreement 6.05(d) ICC 13.06(a) Indemnified Party 8.03 Indemnifying Party 8.03 Initial Withheld Amount 6.04 INTERNACOM Recitals Irrevocable Instruction 6.05(b) Luxembourg Buyer Preamble Miffin Note Expiration Date 2.02(f) Navega Recitals Non-C2N Seller Shares Recitals Purchase Price 2.01 Related Party Agreements 3.09(a) Released Claims 10.02 Rules 13.06(a) Seller Preamble Seller Owners 7.02(e) Seller Released Claims 10.01 Seller Released Parties 10.01 Seller Shares Recitals SESTEL Recitals SICESA Recitals Shares Recitals Tax Due Date 6.04 Third Party Claim 8.03 Tribunal 13.06(b) Warranty Breach 8.02 Section 1.02. Other Definitional and Interpretative Provisions. The words “hereof”, “herein” and “hereunder” and words of like import used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Articles, Sections, Exhibits and Schedules are to Articles, Sections, Exhibits and Schedules of this Agreement unless otherwise specified. All Exhibits and Schedules annexed hereto or referred to herein are hereby incorporated in and made a part of this Agreement as if set forth in full herein.
6 Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein, shall have the meaning as defined in this Agreement. Any singular term in this Agreement shall be deemed to include the plural, and any plural term the singular. Whenever the words “include”, “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether or not they are in fact followed by those words or words of like import. “Writing”, “written” and comparable terms refer to printing, typing and other means of reproducing words (including electronic media) in a visible form. References to any statute shall be deemed to refer to such statute as amended from time to time and to any rules or regulations promulgated thereunder. References to any agreement or contract are to that agreement or contract as amended, modified or supplemented from time to time in accordance with the terms hereof and thereof; provided that with respect to any agreement or contract listed on any schedules hereto, all such amendments, modifications or supplements must also be listed in the appropriate schedule. References to any Person include the successors and permitted assigns of that Person. References from or through any date mean, unless otherwise specified, from and including or through and including, respectively. References to “law”, “laws” or to a particular statute or law shall be deemed also to include any and all Applicable Laws. ARTICLE 2 PURCHASE AND SALE Section 2.01. Purchase and Sale. Upon the terms and subject to the conditions of this Agreement, in each case at the Closing, Seller agrees to sell the Seller Shares to Buyers and Buyers agree to purchase from Seller the Seller Shares (which Seller Shares, for the avoidance of doubt, shall include all dividend coupons relating to such Seller Shares other than those that are expressly contemplated by Section 6.05(a) to be retained by Seller). The purchase price for the Seller Shares (the “Purchase Price”) is US$2,200,000,000 in cash. The Purchase Price shall be paid as provided in Section 2.02. The Purchase Price will be allocated among the Seller Shares as set forth on Section 2.01 of the Disclosure Schedule. The parties agree (and agree to cause each of their respective Affiliates) to utilize such allocation for all tax purposes, including the filing of all tax returns and in the course of all tax-related proceedings, unless otherwise required by a final determination of a Governmental Authority. Section 2.02. Closing. The closing (the “Closing”) of the purchase and sale of the Seller Shares hereunder shall take place virtually, as soon as possible, but in no event later than two Business Days, after satisfaction or, to the extent permissible, waiver by the party or parties entitled to the benefit of the conditions set forth in Article 7 are satisfied, or at such other time or place as Buyers and Seller may agree. The transfer of the certificates representing the Seller Shares shall take place at the Guatemalan office of Consortium Legal: Ciudad de Guatemala. Diagonal 6 10-01 zona 10. Centro Gerencial Las Margaritas Torre II, Oficina 1402A. At the Closing, the parties shall take the following actions simultaneously: (a) Seller shall deliver to (i) Curaçao Buyer, duly endorsed certificates for all of the Seller Shares except for one Seller Share of each Company,
7 (ii) Luxembourg Buyer, duly endorsed certificates for one Seller Share of each Company, (iii) Buyers all dividend coupons relating to the Seller Shares (other than the Coupons), and (iv) Buyers, the share registry book of each of the Companies and letters to the Boards of Directors of each of the Companies notifying the endorsement of such Seller Shares in favor of Buyers, as applicable. Seller shall request the registration of the foregoing endorsements in the share registry books of each of the Companies in favor of Buyers, as applicable. (b) Subject to any withholding pursuant to Section 6.04 each Buyer shall deliver to Seller its respective pro rata portion of the Purchase Price in immediately available funds by wire transfer to a bank account of Seller that is designated by Seller by notice to Buyers (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of Seller in such amount); and (c) The Buyers shall hold the Closing Shareholders’ Meetings (defined below) in accordance with Section 6.06. (d) The Buyers shall deliver to Seller a notarial certification transcribing all the shareholders´ resolutions adopted in the Closing Shareholders´ Meetings. (e) Seller shall execute and deliver to Buyers and Buyers shall cause COMCEL to execute and deliver to Seller a signed counterpart to the Guarantee Agreement. (f) Buyers shall receive from Seller duly executed amendments to each of the Miffin Notes, extending the expiration dates thereof to July 31, 2022 (the “Miffin Note Expiration Date”) and Seller shall have received duly cancelled copies of the original Miffin Notes. (g) Seller shall execute and deliver to Buyers and Buyers shall cause COMCEL to execute and deliver an amendment to each Buyer Lease, in substantially the form attached hereto as Exhibit D, extending the term of such Buyer Lease to a date that is no earlier than the date that is five years from the date hereof. (h) Seller, Buyers and the Seller’s Custodian shall execute and deliver to the other parties the Custody Agreement. (i) Buyers shall cause COMCEL to execute and deliver to Seller’s Custodian the COMCEL Note.
8 ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF SELLER Seller represents and warrants to Buyers as of the date hereof and as of the Closing Date that: Section 3.01. Corporate Existence and Power. Seller is a corporation duly incorporated, validly existing and in good standing (or its equivalent) under the laws of Panama. Section 3.02. Capitalization. Other than the Persons delivering Side Letters to Buyers at the Closing, no Person owns, directly or indirectly, any interest in Seller. Section 3.03. Corporate Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of Seller and have been duly authorized by all necessary corporate action on the part of Seller. Assuming its execution by Buyers, this Agreement constitutes a valid and binding agreement of Seller enforceable against Seller in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). Section 3.04. Governmental Authorization. The execution, delivery and performance by Seller of this Agreement and the consummation of the transactions contemplated hereby require no action by or in respect of, or filing by or with respect to Seller with, any Governmental Authority. Section 3.05. Noncontravention. The execution, delivery and performance by Seller of this Agreement and the consummation by Seller of the transactions contemplated hereby do not and will not (i) violate the organizational documents of Seller, (ii) violate any Applicable Law, (iii) require any consent or other action by any Person in each case under any agreement to which Seller or Miffin is a party or (iv) result in the creation or imposition of any Lien on the Seller Shares. Section 3.06. Ownership of Shares. Seller is the record and beneficial owner of the Seller Shares, free and clear of any Lien and any other limitation or restriction (including any restriction on the right to vote, sell or otherwise dispose of the Seller Shares), and will transfer and deliver to Buyers (in accordance with Section 2.02(a)) at the Closing valid title to the Seller Shares free and clear of any Lien and any such limitation or restriction. Section 3.07. Litigation. As of the date hereof, there is no action, suit, or proceeding (or to the Knowledge of Seller any basis therefor) pending against, or to the Knowledge of Seller, threatened against or affecting, Seller or any Related Party of Seller before (or, in the case of threatened actions, suits or proceedings, would be before) any Governmental Authority or arbitrator which in any manner challenges or seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement.
9 Section 3.08. Court Orders. There is no judgment, decree, injunction, rule or order of any arbitrator or Governmental Authority outstanding against Seller or any Related Party of Seller that in any manner seeks to prevent, enjoin, alter or delay the consummation of the transactions contemplated by this Agreement. Section 3.09. Related Party Transactions and Balances. (a) Except as set forth in Section 3.09(a) of the Disclosure Schedule, there are no material commercial agreements, contracts, commitments or other arrangements of any kind between Seller or any Related Party of Seller, on the one hand, and any (or more than one) Company or any of its Subsidiaries, on the other hand (“Related Party Agreements”). (b) Except as set forth in Section 3.09(b) of the Disclosure Schedule, there are no claims for overdue amounts owing under any Related Party Agreement (i) by any Company to Seller or any Related Party of Seller or (ii) by Seller or any Related Party of Seller to any Company as of September 30, 2021. Section 3.10. No Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller. ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF BUYERS Each Buyer represents and warrants to Seller as of the date hereof and as of the Closing Date that: Section 4.01. Corporate Existence and Power. Such Buyer is duly formed, validly existing and in good standing (or its equivalent) under the laws of its jurisdiction of formation (or equivalent). Section 4.02. Corporate Authorization. The execution, delivery and performance by such Buyer of this Agreement and the consummation of the transactions contemplated hereby are within the corporate or other applicable powers of such Buyer and have been duly authorized by all necessary corporate or other applicable action on the part of such Buyer. Assuming its execution by Seller and the other Buyer, this Agreement constitutes a valid and binding agreement of such Buyer enforceable against such Buyer in accordance with its terms (subject to applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws affecting creditors’ rights generally and general principles of equity). Section 4.03. Governmental Authorization. The execution, delivery and performance by such Buyer of this Agreement and the consummation of the transactions contemplated hereby require no action by or in respect of, or filing by or with respect to such Buyer with, any Governmental Authority.
10 Section 4.04. Noncontravention. The execution, delivery and performance by such Buyer of this Agreement and the consummation by such Buyer of the transactions contemplated hereby do not and will not (i) violate the organizational documents of such Buyer, (ii) violate any Applicable Law or (iii) require any consent or other action by any Person in each such case under any agreement to which such Buyer is a party. Section 4.05. Litigation. As of the date hereof, there is no action, suit or proceeding (or to the Knowledge of such Buyer any basis therefor) pending against, or to the Knowledge of such Buyer threatened against or affecting, such Buyer or any Related Party of such Buyer before (or, in the case of threatened actions, suits or proceedings, would be before) any arbitrator or any Governmental Authority which in any manner challenges or seeks to prevent, enjoin, alter or delay the transactions contemplated by this Agreement. Section 4.06. Court Orders. There is no judgment, decree, injunction, rule or order of any arbitrator or Governmental Authority outstanding against such Buyer or any Related Party of such Buyer that in any manner seeks to prevent, enjoin, alter or delay the consummation of the transactions contemplated by this Agreement. Section 4.07. Investment Purpose. Such Buyer is acquiring the Seller Shares solely for its own account for investment purposes and not with a view to, or for offer or sale in connection with, any distribution thereof. Such Buyer acknowledges that the Seller Shares are not registered under the Securities Act of 1933, as amended, or any state securities laws, and that the Seller Shares may not be transferred or sold except pursuant to the registration provisions of the Securities Act of 1933, as amended or pursuant to an applicable exemption therefrom and subject to state securities laws and regulations, as applicable. Such Buyer is able to bear the economic risk of holding the Seller Shares for an indefinite period (including total loss of its investment), and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment. Section 4.08. Independent Investigation. Such Buyer acknowledges and agrees that: (a) in making its decision to enter into this Agreement and to consummate the transactions contemplated hereby, such Buyer has relied solely upon the Knowledge of its Affiliates and its own prior Knowledge of the business, results of operations, prospects, condition (financial or otherwise) or assets of the Companies and the express representations and warranties of Seller set forth in Article 3 of this Agreement; and (b) none of Seller, any Company or any other Person has made any representation or warranty (express or implied) as to Seller, the Companies or this Agreement, except as expressly set forth in Article 3 of this Agreement. Section 4.09. No Brokers. No broker, finder or investment banker is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of such Buyer.
11 ARTICLE 5 COVENANTS OF SELLER Section 5.01. Noncompetition, etc. (a) Seller agrees that for a period of five full years after the Closing Date, neither it nor any of its Affiliates shall: (i) engage, either directly or indirectly, as a principal or for its own account or solely or jointly with others, or as stockholders in any corporation or joint stock association, in any business that competes with any Company as it exists on the Closing Date within any area or region set forth on Section 5.01 of the Buyer Disclosure Schedule; (ii) employ or solicit, or receive or accept the performance of services by, any Person who is a current employee of any Company at the time of such employment, solicitation, receipt or acceptance by Seller or any of its Affiliates; or (iii) take any action that would reasonably be expected to have an effect that is adverse and material to (i) any Company’s then-existing or prospective material business relationship with any Person (including, without limitation, any customers or suppliers) known to such Seller or Affiliate or (ii) the operation of the Business by any Company. (b) Neither Seller nor any of its Affiliates shall take or purport to take any action on behalf of any Company after the Closing Date, including, without limitation, having any dealings, arrangements or communications with any third party on behalf of (or purportedly on behalf of) such Company. (c) If any provision contained in this Section shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Section, but this Section shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein; provided that, it is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under Applicable Law, a court of competent jurisdiction shall construe and interpret or reform this Section to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such Applicable Law. Seller acknowledges that Buyers would be irreparably harmed by any breach of this Section and that there would be no adequate remedy at law or in damages to compensate Buyers for any such breach. Seller agrees that Buyers shall be entitled to injunctive relief
12 requiring specific performance by Seller of this Section, and Seller consents to the entry thereof. (d) Nothing in this Article 5 shall prohibit (A) Seller or any of its Affiliates from purchasing or owning directly or indirectly (i) less than five percent (5%) of the securities of any corporation or other Person, provided that such ownership represents a passive investment and that the Seller or such Affiliate is not a controlling person of, or a member of a group that controls, such corporation or other Person (for purposes of the foregoing, “controlling” and “control” have the same meanings given to such terms in the definition of “Affiliate”) and (ii) any securities of a corporation or other Person through a hedge fund, private equity fund, mutual fund or similar investment vehicle so long as the Seller or such Affiliate is not actively involved in the management, operations or business thereof or (B) a general solicitation by or on behalf Seller or any of its Affiliates to the public of general advertising or similar methods of solicitation by search firms not specifically directed at Company employees. ARTICLE 6 COVENANTS OF BUYERS AND/OR SELLER Section 6.01. Notices of Certain Events. Each party shall (with respect to clauses 6.01(c) and 6.01(d), solely prior to the Closing Date) promptly notify each other party hereto of: (a) any written notice or other communication received from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated by this Agreement; (b) any written notice or other communication received from any Governmental Authority in connection with the transactions contemplated by this Agreement; (c) any actions, suits, claims, investigations or proceedings commenced or, to its Knowledge threatened against, relating to or involving or otherwise affecting such party that, if pending on the date of this Agreement, would have been required to have been disclosed pursuant to Section 3.07 or Section 4.05 or that relate to the consummation of the transactions contemplated by this Agreement; (d) any inaccuracy of any representation or warranty contained in this Agreement that could reasonably be expected to cause the condition set forth in Section 7.02(a) (if such party is Seller) or Section 7.03(a) (if such party is a Buyer) not to be satisfied; and (e) any failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder;
13 provided, however, that the delivery of any notice pursuant to this Section 6.01 shall not limit or otherwise affect the remedies available hereunder to any party hereto. Section 6.02. Commercially Reasonable Best Efforts; Further Assurances. Subject to the terms and conditions of this Agreement, Buyers and Seller shall use their commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary or required under Applicable Laws to consummate the transactions contemplated by this Agreement, including (i) preparing and filing as promptly as reasonably practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents required to be filed by it and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained by it or its Affiliates from any Governmental Authority or other third party that are necessary or required to consummate the transactions contemplated by this Agreement; provided that the parties hereto understand and agree that the commercially reasonable best efforts of any party hereto shall not be deemed to include (i) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or (ii) divesting or otherwise holding separate (including by establishing a trust or otherwise) or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the Companies’ or any of their respective Affiliates’ businesses, assets or properties. To the extent within their respective power and control, prior to the Closing, Seller and Buyers agree to cause each Company to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or required in order to consummate or implement expeditiously the transactions contemplated by this Agreement. After the Closing, Buyers agree to cause each Company to execute and deliver such other documents, certificates, agreements and other writings and to take such other actions as may be necessary or required in order to consummate or implement expeditiously the transactions contemplated by this Agreement. Section 6.03. Certain Filings. The parties shall cooperate with one another (i) in determining whether any action by or in respect of, or filing with, any Governmental Authority is required, or any actions, consents, approvals or waivers are required to be obtained from parties to any material contracts, in connection with the consummation of the transactions contemplated by this Agreement and (ii) in taking such actions or making any such filings, furnishing information required in connection therewith and seeking timely to obtain any such actions, consents, approvals or waivers. Section 6.04. Payment of Capital Gains Tax. (a) Buyers shall deduct and withhold, in the aggregate and in accordance with their respective pro rata shares of the Purchase Price, $195 million (the “Initial Withheld Amount”) from the consideration otherwise payable to Seller pursuant to this Agreement, which amount shall be used to pay the Seller's capital gains tax derived from the sale of the Seller Shares. Buyers
14 shall cause COMCEL to (i) timely file with the corresponding Governmental Authorities, on behalf of Seller, a tax declaration in accordance with the calculation provided by PricewaterhouseCoopers; and (ii) make the Seller’s tax payment on or before the Tax Due Date (as defined below). At least five Business Days prior to the Tax Due Date (as defined below), Seller shall cause PricewaterhouseCoopers to deliver to Buyers its calculation of the total amount of tax (including capital gains tax) Seller will owe to any Governmental Authority pursuant to the transactions contemplated by this Agreement (the “Final Tax Amount”). If the Final Tax Amount is (i) greater than the Initial Withheld Amount, then Buyers shall cause COMCEL to promptly (but no later than the tenth Business Day of the month immediately following the month in which the Closing Date takes place (the “Tax Due Date”)) pay to the applicable Governmental Authorities the Final Tax Amount and Seller shall promptly (but no later than the Tax Due Date) pay to Buyers any difference between the Initial Withheld Amount and the Final Tax Amount; or (ii) less than or equal to the Initial Withheld Amount, then Buyers shall cause COMCEL to promptly pay to (x) the applicable Governmental Authorities the Final Tax Amount (but no later than the Tax Due Date) and (y) Seller an amount equal to the Initial Withheld Amount minus the Final Tax Amount (but no later than one Business Day after the Tax Due Date). To the extent that any amount is paid by Buyers, COMCEL or Seller to any Governmental Authority (or withheld by Buyers) in accordance with the terms of this Section 6.04, (i) such amount shall be treated for all purposes of this Agreement as having been paid to Seller and (ii) the party paying any such amount shall deliver to the other party (i) a copy of the tax declaration; (ii) with respect to any payment made to a Guatemalan Governmental Authority, a copy of the form issued by such Governmental Authority (known as SAT-2000) or any other applicable form; and (iii) evidence of payment of such tax (together, the “Documents Evidencing Payment of Tax”). For the avoidance of doubt, in the event that the Final Tax Amount is ultimately determined, with respect to any Governmental Authority, to be (i) less than the true amount of tax owed to such Governmental Authority, Seller shall be responsible for and shall pay any additional tax owed to such Governmental Authority or (ii) greater than the true amount of tax owed to such Governmental Authority, Seller shall be entitled to any refund from such Governmental Authority in respect of such amount, and Buyers shall cooperate with Seller in recovering such refund. Buyer shall cooperate and shall cause the Companies to cooperate with Seller to determine the Final Tax Amount and, in particular, shall cause each of the Companies to timely issue a certification of the book value of the Seller Shares, as of the Closing Date. (b) To guarantee the payment of the taxes by Buyers and COMCEL, Buyers shall cause COMCEL to issue a promissory note (the “COMCEL Note”), which shall bear the legend “LIBRE DE PROTESTO”, payable on December 15, 2021, in favor of Seller for the Initial Withheld Amount. The Comcel Note shall be delivered to Seller’s counsel (the “Seller’s Custodian”) for custody. Seller, Buyers and the Seller’s Custodian shall enter into a custody agreement, substantially in the form set forth in Exhibit A (the “Custody Agreement”), in which Seller and Buyers shall agree that the Seller’s Custodian will deliver the
15 Comcel Note to: (i) Buyers, upon the receipt of the Documents Evidencing Payment of Tax within the term of and as provided for in the Custody Agreement or (ii) Seller, if Buyers fail to deliver the Documents Evidencing Payment of Tax within the term of and as provided for in the Custody Agreement. Section 6.05. Dividends and Miffin Notes. In relation to the Miffin Notes, the parties agree that: (a) Seller shall retain the rights over one coupon per each of the Seller Shares issued by COMCEL (the “COMCEL Seller Shares”) identified with coupon numbers (i) 26 of share certificate number 236; (ii) 26 of share certificate number 237; (iii) 26 of share certificate number 238; (iv) 26 of share certificate number 239; (v) 26 of share certificate number 240; (vi) 13 of share certificate number 243; and (vii) 13 of share certificate number 244 (the “Coupons”). (b) Buyers and Seller agree that the aggregate value of dividends payable on the Coupons, which will be finally declared at the 2022 ordinary shareholders meeting of COMCEL that shall take place no later than July 31, 2022 declaring dividends for the financial period ending December 31, 2021 (the “2022 Meeting”), shall equal the aggregate principal amount of the Miffin Notes plus any interest payable pursuant to the Miffin Notes plus the amount of income tax that will be payable by Seller in respect and upon receipt of such amounts (the “Coupon Aggregate Amount”) and Buyers shall cause the following resolutions to be approved at the COMCEL shareholders’ meeting to be held as a condition to the Closing: (x) a resolution designating the coupon number for each of the COMCEL Seller Share’s certificates that will be used for the purposes of the payment of dividends corresponding to such share certificates in the 2022 Meeting and the individual value of dividends payable against such coupon, the aggregate amount of which shall be equal to the Coupon Aggregate Amount, (y) a resolution authorizing and irrevocably instructing (the “Irrevocable Instruction”) COMCEL to, promptly after the 2022 Meeting, pay the aforementioned dividends contemplated by the foregoing clause (x) and, upon such payment of dividends, (i) use such dividends to pay off the Miffin Notes in full, at which time the Miffin Notes shall be deemed fully canceled and any dividends owed to Seller in connection to the Coupons fully paid and (ii) withhold and pay any and all taxes payable in connection with such payment of dividends. (c) The last date on which the 2022 Meeting may be held is the Miffin Note Expiration Date (defined below); provided that if the Miffin Notes are amended to have a later expiration date, the foregoing deadline shall automatically be extended to such later expiration date. (d) At Closing, COMCEL and Seller shall enter into a guarantee agreement, substantially in the form of Exhibit B (the “Guarantee Agreement”), pursuant to which they shall agree that COMCEL shall agree to be jointly liable to Seller for damages equivalent to the Coupon Aggregate Amount if: (x) Buyers do
16 not hold the 2022 Meeting by the Expiration Date or (y) COMCEL does not carry out all actions set forth in the Irrevocable Instruction. (e) Buyers shall cause (x) a shareholder resolution be passed at the 2022 Meeting declaring dividends in favor of Seller as holder of the Coupons in an amount equal to the Coupon Aggregate Amount and (y) COMCEL, promptly following the 2022 Meeting, to take all actions set forth in the Irrevocable Instruction. If after taking all actions set forth in the Irrevocable Instruction, any principal or interest payment with respect to the Miffin Notes remains outstanding, Buyers shall cause COMCEL to forfeit such amounts to Seller. (f) Promptly after the payment of taxes in accordance with the Irrevocable Instruction, Buyers shall provide Seller with evidence of such payment. (g) At the Closing, Buyers shall cause COMCEL to mark each Miffin Note with a stamp stating it is non-negotiable and has been cancelled and Seller shall mark the Coupons as non-negotiable and cancelled. Buyers shall cause COMCEL not to assign or endorse the Miffin Notes to any third party and Seller shall not assign or endorse the Coupons. Until the 2022 Meeting and the complete performance by COMCEL of the actions contemplated by the Irrevocable Instruction, Seller shall retain the Coupons marked as cancelled and COMCEL shall retain the Miffin Notes marked as cancelled. Thereafter, Seller shall promptly deliver the Coupons to COMCEL and COMCEL shall deliver the Miffin Notes to Seller. (h) Nothing contained in this Section 6.05 shall be construed as requiring any additional amount to be paid by (i) Seller in connection with the Miffin Notes, including interest accrued under the Miffin Notes, until the dividend payment date, other than by delivery of the Coupons or (ii) Buyers or COMCEL in connection with the Coupons, other than the Coupon Aggregate Amount; provided that, any income tax payable in respect of the Coupon Aggregate Amount that would result in the amount equal to (x) the Coupon Aggregate Amount minus such income tax being less than (y) the aggregate principal amount of the Miffin Notes plus any interest payable pursuant to the Miffin Notes, shall be added to the Coupon Aggregate Amount assigned to the Coupons. Section 6.06. Closing Shareholders’ Meetings. Buyers and Seller agree in relation to the shareholders meetings that will be held for each of the Companies as a condition to the Closing (the “Condition to Closing Shareholders’ Meetings”) and at the Closing for each Company (the “Closing Shareholders’ Meetings”): (a) The Condition to Closing Shareholders’ Meetings shall be held by the then current shareholders and the Closing Shareholders’ Meetings shall be held by Buyers, provided however that the C2N Closing Shareholders’ Meeting shall be held by Millicom Spain S.L. and Curaçao Buyer. The minutes of the
17 Condition to Closing Shareholders’ Meetings and Closing Shareholders’ Meetings shall be substantially in the form of Exhibit C. (b) Curaçao Buyer shall receive a proxy from Luxembourg Buyer and from Millicom Spain, S.L. to hold the Closing Shareholders’ Meetings, which will be held in Guatemala City, by: (x) in representation of Buyer, any of the holders of the power of attorney incorporated in public deed 118 authorized on November 30, 2105 by Maria Fernanda Morales Porres; (y) in representation of Luxembourg Buyer, any of the holders of the power of attorney incorporated in public deed 118 authorized on November 30, 2105 by Maria Fernanda Morales Porres through a proxy granted by the Luxembourg Buyer, (z) in representation of Millicom Spain, S.L. any of the holders of the power of attorney incorporated in public deed 118 authorized on November 30, 2105 by Maria Fernanda Morales Porres through a proxy granted by Millicom Spain, S.L. (c) At the Condition to Closing Shareholders’ Meetings, Buyers shall appoint a substitute director to replace all resigning board members and shall fill any and all vacant committee positions resulting from the resignation of any directors of the Companies appointed by Seller or its Affiliates. (d) At the Condition to Closing Shareholders’ Meetings, Seller and Buyers shall vote to, among other matters, pass a resolution to grant a full release in favor of the Seller Released Parties. At the Closing Shareholders’ Meetings, Buyers shall vote to, among other matters, pass a resolution to grant a full release in favor of the resigning Vice-President, Third Members and their respective substitutes from the board of each Company, as board members of each Company. Section 6.07. Registration of Buyer Leases; Revocation of Appointments. Fundacion Tigo. (a) Buyers shall cause the Companies to present each Buyer Lease to the Real Estate Registry not later than the date that is 30 days after the Closing Date. Buyers undertake to obtain registration of each Buyer Lease at the Real Estate Registry and, promptly after obtaining registration of each Buyer Lease, provide a copy thereof to Seller. Buyers shall cause the Companies to bear the costs of registration of such lease agreements. (b) Buyers shall cause the Companies to revoke and cancel any registered appointments of the Related Parties of Seller as directors or attorneys in fact of the Companies which may be registered at any public registry in Guatemala. (c) In regards to Fundacion TIGO (the “Foundation”), Buyers and Seller shall mutually cooperate to (x) promptly after the Closing, hold a General Meeting of Founders and Benefactors of the Foundation, in which the resignation letters of the Related Parties of Seller shall be approved and in which the Related
18 Parties of Seller shall be discharged from any and all obligations from their positions as Founding Members, Benefactors, Board Members, Committee Members or any other position they may hold or held in the past at the Foundation, to the maximum extent permitted by the law and (y) amend the bylaws of the Foundation, subject to the requirements of the applicable Governmental Authorities, to exclude the Related Parties of Seller as Benefactors of the Foundation or from any other position they may hold and to disassociate them from the Foundation. Buyers and Seller shall use their best efforts to accomplish these matters as soon as practicable. ARTICLE 7 CONDITIONS TO CLOSING Section 7.01. Conditions to Obligations of Buyers and Seller. The obligations of Buyers and Seller to consummate the Closing are subject to the absence of any provision of any Applicable Law prohibiting the consummation of the Closing. Section 7.02. Conditions to Obligation of Buyers. The obligation of Buyers to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) Seller shall have performed in all material respects all of its obligations hereunder required to be performed by it on or prior to the Closing Date, (ii) the representations and warranties of Seller contained in this Agreement and in any certificate or other writing delivered by Seller pursuant hereto shall be true in all material respects at and as of the Closing Date as if made at and as of such date and (iii) Buyers shall have received a certificate signed by Seller to the foregoing effect; (b) Buyers shall have received all certificates or other documents they may reasonably request relating to the existence of Seller and the authority of Seller to enter into and perform its obligations under this Agreement, all in form and substance reasonably satisfactory to Buyers; (c) Buyers shall have received a duly executed copy of the minutes of the Condition to Closing Shareholders’ Meetings; (d) All necessary shareholder, board or other action required under Guatemalan law in order to make the provisions of Section 10.01 legal, valid and enforceable shall have been taken in Guatemala and certified copies of the minutes of such action, substantially in the form of the attached Exhibit C, shall have been delivered to Buyers; (e) Buyers shall have received a duly executed Side Letter from all Persons who own directly or indirectly any equity interests in Seller (the “Seller Owners”); and
19 (f) Buyers shall have received the resignations of the Vice-Presidents, Third Member and their respective substitutes from the board of directors of each Company. Section 7.03. Conditions to Obligation of Seller. The obligation of Seller to consummate the Closing is subject to the satisfaction of the following further conditions: (a) (i) Buyers shall have performed in all material respects all of their obligations hereunder required to be performed by them on or prior to the Closing Date, (ii) the representations and warranties of each Buyer contained in this Agreement and in any certificate or other writing delivered by such Buyer pursuant hereto shall be true in all material respects at and as of the Closing Date as if made at and as of such date and (iii) Seller shall have received a certificate signed by an authorized representative of each Buyer to the foregoing effect; (b) Seller shall have received all certificates or other documents it may reasonably request relating to the existence of each Buyer and the authority of each Buyer to enter into and perform its obligations under this Agreement, all in form and substance reasonably satisfactory to Seller; (c) Seller shall have received a copy of the public announcement to be issued by Buyer and contemplated by Section 13.12; and (d) Seller shall have received a certification transcribing all the shareholders’ resolutions adopted in the Condition to Closing Shareholders’ Meetings. ARTICLE 8 SURVIVAL; INDEMNIFICATION Section 8.01. Survival. The representations and warranties of the parties hereto contained in this Agreement or in any certificate or other writing delivered pursuant hereto or in connection herewith shall survive the Closing for two years. The covenants and agreements of the parties hereto contained in this Agreement shall survive the Closing indefinitely or for the shorter period explicitly specified therein. Notwithstanding the preceding sentences, any breach of a representation or warranty in respect of which indemnity may be sought under this Agreement shall survive the time at which it would otherwise terminate pursuant to the preceding sentences, if notice of (including in reasonable detail the facts and circumstances surrounding) the inaccuracy or breach thereof giving rise to such right of indemnity shall have been given to the party against whom such indemnity may be sought prior to such time. Section 8.02. Indemnification. (a) Effective at and after the Closing, subject to the other terms and conditions of this Article 8, Seller hereby indemnifies Buyers, their respective Affiliates and their respective successors and assignees and, effective at the Closing, without duplication, each Company and their respective successors and assignees against and agrees to hold each of them harmless from any and all damage,
20 loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any action, suit or proceeding, but excluding any punitive, incidental, indirect or consequential damages, losses, liabilities or expenses or any lost profits, diminution in value or any damages based on any type of multiple) (“Damages”), incurred or suffered by Buyers, any such Affiliate, any Company or any of their respective successors and assignees arising out of any (i) breach of a warranty of Seller contained in this Agreement (each such breach, a “Seller Warranty Breach”) or (ii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by Seller pursuant to this Agreement; provided that with respect to indemnification by Seller for Seller Warranty Breaches pursuant to this Section 8.02, Seller’s maximum aggregate liability shall not exceed the Purchase Price and Seller’s maximum aggregate liability for all Seller Warranty Breaches not involving a Fundamental Warranty shall not exceed $110 million. (b) Effective at and after the Closing, subject to the other terms and conditions of this Article 8, Buyers hereby jointly and severally indemnify Seller, its Affiliates, and their respective successors and assigns against and agrees to hold each of them harmless from any and all Damages incurred or suffered by Seller or any such Affiliate or any of their respective successors and assigns arising out of any (i) any breach of a warranty of either Buyer contained in this Agreement (each such breach, a “Buyer Warranty Breach”), (ii) any breach or non-fulfillment of any covenant, agreement or obligation to be performed by either Buyer pursuant to this Agreement, or (iii) the failure of either Buyer to cause any Company to obtain the consent or waiver of any Person required as a result of the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby; provided that with respect to indemnification by Buyers for Buyer Warranty Breaches pursuant to this Section 8.02, Buyers’ collective and aggregate maximum liability shall not exceed the Purchase Price and Buyers’ maximum collective and aggregate liability for all Buyer Warranty Breaches not involving a Fundamental Warranty shall not exceed $110 million. (c) The party making a claim under this Article 8 is referred to as the “Indemnified Party”, and the party against whom such claims are asserted under this Article 8 is referred to as the “Indemnifying Party”. The indemnification provided for in this Section 8.02 shall be subject to the following limitations: (i) The Indemnifying Party shall not be liable to the Indemnified Party for indemnification under Section 8.02(a)(i) or 8.02(b)(i), as the case may be, with respect to a breach of a warranty that is not a Fundamental Warranty until the aggregate amount of all Damages in respect of indemnification under Section 8.02(a)(i) or 8.02(b)(i), exceeds $22 million (the “Deductible”), in which event the Indemnifying Party shall be required to pay or be liable for all such Damages from the first dollar. With respect to any claim as to which the Indemnified Party may be entitled to indemnification under Section 8.02(a)(i) or 8.02(b)(i), as the case may be, with respect to a breach of a warranty that is not a Fundamental Warranty the Indemnifying Party shall not be liable for any
21 individual or series of related Damages which do not exceed $750,000 (which Damages shall not be counted toward the Deductible). (ii) Each Indemnified Party shall take, and cause its Affiliates to take, all reasonable steps to mitigate any Damages upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Damages. Section 8.03. Third Party Claim Procedures. (a) The Indemnified Party agrees to give prompt written notice in writing to the Indemnifying Party of the assertion of any claim or the commencement of any suit, action or proceeding by any third party (“Third Party Claim”) in respect of which indemnity may reasonably be expected to be sought under this Article 8. Such notice shall set forth in reasonable detail such Third Party Claim and the basis for indemnification and, to the extent permitted by Applicable Law, include copies of any related notices given by any Governmental Authority (taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. Such notice by the Indemnified Party shall describe the Third-Party Claim in reasonable detail, shall include copies of all material written evidence thereof and shall indicate the estimated amount, if reasonably practicable, of the Damages that has been or may be sustained by the Indemnified Party. (b) The Indemnifying Party shall be entitled to participate in the defense of any Third Party Claim and, subject to the limitations set forth in this Section, shall be entitled to control and appoint lead counsel for such defense, in each case at its own expense; provided that prior to assuming control of such defense, the Indemnifying Party must acknowledge that it would have an indemnity obligation for the Damages resulting from such Third Party Claim as provided under this Article 8. (c) The Indemnifying Party shall not be entitled to assume or maintain control of the defense of any Third Party Claim and shall pay the reasonable fees and expenses of counsel retained by the Indemnified Party if (i) the Indemnifying Party does not deliver the acknowledgment referred to in Section 8.03(b) within 30 days of receipt of notice of the Third Party Claim pursuant to Section 8.03(a), (ii) the Third Party Claim relates to or arises in connection with any criminal proceeding, action, indictment, allegation or investigation, (iii) to the extent, and only to the extent, that the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates or (iv) the Indemnifying Party has failed or is failing to prosecute or defend the Third Party Claim in good faith (in which case the Indemnifying Party shall be entitled to subsequently assume or maintain control of the defense of such Third Party Claim to the extent the Indemnified Party fails to prosecute or defend such Third Party Claim in good faith). The Indemnified Party agrees, without the prior written consent of Seller, not to settle or admit liability or culpability in connection with
22 any Third Party Claim or related criminal proceeding, action, indictment, allegation or investigation referenced in the foregoing clause (ii) to the extent any such settlement or admission would reasonably be expected to adversely prejudice or impact Seller or any of its Related Parties. (d) If the Indemnifying Party shall assume the control of the defense of any Third Party Claim in accordance with the provisions of this Section 8.03, the Indemnifying Party shall obtain the prior written consent of the Indemnified Party before entering into any settlement of such Third Party Claim (which consent shall not be unreasonably withheld, delayed or conditioned). (e) In circumstances where the Indemnifying Party is controlling the defense of a Third Party Claim in accordance with paragraphs (b) and (c) above, the Indemnified Party shall be entitled to participate in the defense of any Third Party Claim and to employ one separate counsel of its choice for such purpose, in which case the fees and expenses of such separate counsel shall be borne by the Indemnified Party; provided that in such event, the Indemnifying Party shall pay the fees and expenses of such separate counsel (i) incurred by the Indemnified Party prior to the date the Indemnifying Party assumes control of the defense of the Third Party Claim or (ii) if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. (f) Each party shall cooperate, and cause their respective Affiliates to cooperate, in the defense or prosecution of any Third Party Claim and shall furnish or cause to be furnished such records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. Section 8.04. Direct Claim Procedures. In the event an Indemnified Party has a claim for indemnity under Article 8 against an Indemnifying Party that does not involve a Third Party Claim (a “Direct Claim”), the Indemnified Party agrees to give prompt notice in writing of such claim to the Indemnifying Party. Such notice shall set forth in reasonable detail such claim and the basis for indemnification (taking into account the information then available to the Indemnified Party). The failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party of its obligations hereunder, except to the extent such failure shall have materially and adversely prejudiced the Indemnifying Party. The Indemnifying Party shall have 30 days after its receipt of such notice to respond in writing to such Direct Claim. During such 30-day period, the Indemnified Party shall allow the Indemnifying Party and its professional advisors to investigate the matter or circumstance alleged to give rise to the Direct Claim, and whether and to what extent any amount is payable in respect of the Direct Claim and the Indemnified Party shall assist the Indemnifying Party’s investigation by giving such information and assistance (including access to each Company’s premises and personnel and the right to examine and copy any accounts, documents or records) as the Indemnifying Party or any of its professional advisors may reasonably request. If the Indemnifying Party does not so respond within such 30 day period, the Indemnifying Party shall be deemed to have rejected such claim, in which case the Indemnified Party
23 shall be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement. Section 8.05. Exclusive Remedies. Subject to Section 13.11, the parties acknowledge and agree that their sole and exclusive remedy with respect to any and all claims (other than claims arising from Fraud on the part of a party hereto in connection with the transactions contemplated by this Agreement) for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement, shall be pursuant to the indemnification provisions set forth in this Article 8. In furtherance of the foregoing, except with respect to Section 13.11, each party hereby waives, to the fullest extent permitted under law, any and all rights, claims and causes of action for any breach of any representation, warranty, covenant, agreement or obligation set forth herein or otherwise relating to the subject matter of this Agreement it may have against the other parties hereto and their Affiliates and each of their respective representatives arising under or based upon any law, except pursuant to the indemnification provisions set forth in this Article 8. Nothing in this Section 8.05 shall limit any Person’s right to seek and obtain any equitable relief to which any Person shall be entitled pursuant to Section 13.11 or to seek any remedy on account of Fraud by any party hereto pursuant to Section 13.06. ARTICLE 9 TERMINATION Section 9.01. Grounds for Termination. This Agreement may be terminated at any time prior to the Closing: (a) by mutual written agreement of Seller and Buyers; or (b) by either Seller or Buyers if there shall be any Applicable Law that makes consummation of the transactions contemplated hereby illegal or otherwise prohibited or if consummation of the transactions contemplated hereby would violate any nonappealable final order, decree or judgment of any Governmental Authority binding on the terminating party having competent jurisdiction. The party desiring to terminate this Agreement pursuant to Section 9.01(b) shall give notice of such termination to the other party. Section 9.02. Effect of Termination. If this Agreement is terminated as permitted by Section 9.01, such termination shall be without liability of any party (or any stockholder, director, officer, employee, agent, consultant or representative of such party) to any other party to this Agreement; provided that if such termination shall result from the willful breach by any party hereto of any representation or warranty or agreement contained herein, such party shall be fully liable for any and all Damages incurred or suffered by any other party as a result of such failure or breach. The provisions of Sections 13.03, 13.05, 13.06, 13.07, 13.08 and 13.09 shall survive any termination hereof pursuant to Section 9.01.
24 ARTICLE 10 WAIVER AND RELEASE; BUYERS AND COMPANY INDEMNIFICATION Section 10.01. Release by Seller. Except as provided in Section 10.03, effective as of the Closing, Seller, for itself and on behalf of its Affiliates hereby absolutely, unconditionally and irrevocably WAIVES, RELEASES and FOREVER DISCHARGES (i) each Company, (ii) Buyers, (iii) the respective Affiliates of the Companies and Buyers and (iv) the current and former officers and directors of the Persons identified in clauses (i), (ii) and (iii) (collectively, “Seller Released Parties”) from any and all Claims that Seller or any of its Affiliates may have against any Seller Released Party because of anything done, omitted, suffered or allowed to be done by a Seller Released Party prior to the Closing (except as provided in Section 10.03, the “Seller Released Claims”), and waives all rights that Seller or any of its Affiliates may now or in the future have with respect to any Seller Released Claims. The Seller agrees to take and cause its Affiliates to take all necessary action under or required by the laws of Guatemala (including execution and delivery of any documents and the taking of any board of director, shareholder or other meetings), to give effect to the foregoing releases. Section 10.02. Release by Buyers. Except as provided in Section 10.03, effective as of the Closing, each Buyer for itself and on behalf of its Affiliates hereby absolutely, unconditionally and irrevocably WAIVES, RELEASES and FOREVER DISCHARGES (i) Seller, (ii) the Affiliates of Seller, (iii) the current and former officers and directors of the Persons identified in clauses (i) and (ii), (iv) the current and former directors of the Companies appointed by the Seller and its Affiliates (including any director of any Company who is also Vice President of such Company) and (v) the current chief executive officer of COMCEL (the “CEO” and together with the Persons covered by the foregoing clauses (i)-(iv), the “Buyer Released Parties”) from any and all Claims that such Buyer and its Affiliates may have against any Buyer Released Party because of anything done, omitted, suffered or allowed to be done by a Buyer Released Party prior to the Closing (except as provided in Section 10.03, the “Buyer Released Claims” and, together with the Seller Released Claims, the “Released Claims”), and waives all rights that such Buyer and its Affiliates may now or in the future have with respect to any Buyer Released Claims. Each Buyer agrees to take and cause its Affiliates to take all necessary action under or required by the laws of Guatemala (including execution and delivery of any documents and the taking of any board of director, shareholder or other meetings), to give effect to the foregoing releases. Promptly after the Closing, Buyers shall cause the Companies to execute a release in favor of Buyer Released Parties on the same terms and conditions set forth in this Section 10.02. Nothing in this Section 10.02 shall be construed to limit the Buyers’ ability to terminate, with or without cause, the CEO’s relationship, as an employee or otherwise, with COMCEL or any Company. Section 10.03. Exceptions. Notwithstanding anything to the contrary provided in Section 10.01 and Section 10.02, the Released Claims shall not include, and nothing herein shall waive, release or discharge in any manner, or constitute a defense to (i) any Claim arising under this Agreement or (ii) with respect to only the CEO, any Claims by any Buyer, any Company or any of their respective Affiliates seeking compensation for, and only to the extent of, any monetary penalty imposed on any of them in connection
25 with a final judgment based on conduct by the CEO that is adjudged to be criminal by a criminal court of competent jurisdiction; provided that any Claim described in clause (ii) of this paragraph must be brought within one year of the final judgment that serves as the basis for such Claim. Section 10.04. Waiver of Legal Rights. EACH PARTY EXPRESSLY WAIVES ANY AND ALL RIGHTS IT HAS UNDER ANY STATE OR FEDERAL STATUTE OR ANY COMMON LAW PRINCIPLE OF SIMILAR EFFECT, THAT PROVIDES THAT THE FOREGOING WAIVER, RELEASE AND DISCHARGE DOES NOT EXTEND TO CLAIMS THAT IT DOES NOT KNOW OR SUSPECT TO EXIST IN ITS FAVOR AT THE TIME OF THE CLOSING, WHICH IF KNOWN BY IT WOULD HAVE MATERIALLY AFFECTED ITS SETTLEMENT OF THE RELEASED CLAIMS. EACH PARTY ACKNOWLEDGES THAT IT MAY HEREAFTER DISCOVER FACTS DIFFERENT FROM, OR IN ADDITION TO, THOSE WHICH IT KNOWS OR BELIEVES TO BE TRUE WITH RESPECT TO THE RELEASED CLAIMS, AND AGREES THAT THE RELEASES CONTEMPLATED BY THIS ARTICLE 10 SHALL BE AND REMAIN EFFECTIVE IN ALL RESPECTS NOTWITHSTANDING SUCH DIFFERENT OR ADDITIONAL FACTS OR THE DISCOVERY THEREOF. SUBJECT TO SECTION 10.03, EACH WAIVER, RELEASE AND DISCHARGE OF ANY CLAIM UNDER THE RELEASES CONTEMPLATED BY THIS ARTICLE 10 BENEFITING ANY PERSON OR ENTITY SHALL APPLY TO SUCH CLAIM, WHETHER SUCH CLAIM IS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), STRICT LIABILITY OR OTHER LEGAL FAULT OF SUCH PERSON OR ENTITY. Section 10.05. No Assignment of Released Claims. (a) Each Buyer represents and warrants to Seller that, subject to Section 10.03, the release set forth in Section 10.02 is binding upon it (and it has the authority to provide releases of its Affiliates), such Buyer has not in any manner assigned, pledged or otherwise voluntarily or involuntarily disposed of or transferred to any Person any interest in any Buyer Released Claim, Buyers (or their Affiliates) are the sole and exclusive owners of all Buyer Released Claims and each Buyer Released Claim is hereby fully and finally discharged, settled and satisfied; and (b) Seller represents and warrants to Buyers that the release set forth in Section 10.01 is binding upon Seller (and Seller has the authority to provide releases of Seller’s Affiliates), Seller has not in any manner assigned, pledged, or otherwise voluntarily or involuntarily disposed of or transferred to any Person any interest in any Seller Released Claim, Seller (or an Affiliate thereof) is the sole and exclusive owner of all Seller Released Claims and each Seller Released Claim is hereby fully and finally discharged, settled and satisfied. Section 10.06. No Admission. This Release does not constitute evidence of unlawful conduct or wrongdoing by any Seller or any Company or Buyers or any Affiliate of Seller or any Company or Buyers. Section 10.07. Buyer Indemnification. Each Buyer for itself and on behalf of its Affiliates agrees to the maximum extent permitted by Applicable Law, to indemnify each
26 Person who has served as a director of any Company and that was appointed by Seller or any of its Affiliates and any of such Person’s respective successors and assigns (each a “Company Person Indemnitee”) against and agrees to hold each such Company Person Indemnitee harmless from, any and all Damages incurred or suffered by them arising out of any actions or inactions taken by any Company Person Indemnitee as a director of any Company; provided that each Buyer’s foregoing indemnification obligation shall not apply to the extent arising out of the intentional misconduct of such Person. Each Buyer for itself and on behalf of its Affiliates further agrees to cooperate fully with each Company Person Indemnitee in all reasonable respects in connection with any Claim relating to such Damages, including furnishing any assistance, information and documents as may be reasonably requested by a Company Person Indemnitee. Promptly after the Closing, Buyer shall cause the Companies to execute an indemnification agreement on the terms and conditions set forth in this Section 10.07; provided that each Company shall only be obligated to indemnify those Persons who have served as a director of such Company. Section 10.08. Waiver with Respect to Seller Shares. Curaçao Buyer and Seller hereby waive any and all claims they may have against each Company and any officer thereof arising out of or in connection with the failure of any Seller Share certificate of such Company to comply with the requirements of such Company’s bylaws. ARTICLE 11 CONFIDENTIALITY Section 11.01. Confidential Information. (a) Seller and each Buyer acknowledges that it or its Affiliates and its directors, officers, agents or employees has made and may make available in the future (i) to Buyers, their directors, officers, agents or employees, the Companies, their respective directors, officers, agents or employees and the Affiliates of such Buyers, with respect to Seller, its Affiliates and the directors, officers, agents or employees of Seller and (ii) to Seller, its Affiliates and their respective directors, officers, agents or employees, with respect to Buyers, their Affiliates and the directors, officers, agents or employees of Buyers, information about their activities within and on behalf of the Companies, their contractual and commercial relationships and relationships to third parties, Governmental Authorities and within their relationships, business practices and plans, including, but not limited to, business strategies, risk characteristics, financial information, technical information, systems information and consumer research and/or certain information and material identified by it as “Confidential” (collectively, “Confidential Information”). Confidential Information may be written, oral, recorded, on tapes or computer format. As used herein, a party disclosing Confidential Information may be referred to as the “Disclosing Party” and the party receiving such Confidential Information may be referred to as the “Receiving Party”.
27 (b) Seller and each Buyer acknowledge that all Confidential Information furnished by a Disclosing Party is considered a matter of strict confidentiality. (c) Seller and each Buyer agrees that it will employ the same degree of care to preserving the Confidential Information received from the Disclosing Party as it would apply to its own comparable confidential information (but in no event will the Receiving Party exercise less than a reasonable degree of care in handling Confidential Information). Without limiting the generality of the foregoing, each party further agrees that it will not distribute, disclose or convey to third parties any Confidential Information, except as specifically provided in this Article 11. (d) Promptly after the Closing, Buyer shall cause the Companies to execute a confidentiality agreement in favor of Seller covering the terms and conditions set forth in this Article 11. Section 11.02. Disclosure of Confidential Information (a) Seller and each Buyer agree that: (i) its employees, agents, contractors, professional advisors (including, without limitation, its attorneys, tax advisors, bankers and accountants) and, with respect to such Buyer, potential sources of financing of such Buyer or its Affiliates, shall be granted access to Confidential Information as needed in connection with the performance of their respective duties and obligations. (ii) Except as set forth in Section 11.03(b), Confidential Information shall not be distributed, disclosed or conveyed to any third party (inclusive of agents and subcontractors) unless such third party certifies its agreement to be bound by the provisions of this Article 11. (iii) it shall not make use of any Confidential Information received from the other party for the benefit of a third party. Section 11.03. Exceptions to Duty to Keep Confidential. (a) The obligations set forth in this Article 11 shall not apply to (i) Confidential Information of a Disclosing Party: (1) which has come into the public domain through no fault or action of the Receiving Party; (2) which was lawfully disclosed to the Receiving Party by a third party; or
28 (3) which was independently developed by the Receiving Party not otherwise in violation or breach of this Agreement; or (ii) any disclosure specifically authorized in writing by the Disclosing Party. (b) In the event that the Receiving Party becomes subject, is requested or required or becomes legally compelled (by deposition, interrogatory, request for document, subpoena, summons, warrant, order, civil investigative demand or similar process or otherwise pursuant to a requirement a Governmental Authority) to disclose any of the Confidential Information, the Receiving Party shall (to the extent legally permissible) provide the Disclosing Party with prompt prior written notice of such request or requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement (at the Disclosing Party’s sole expense). In the event that such protective order or other appropriate remedy is not obtained or that the Disclosing Party waives compliance with the provisions hereof (or does not promptly seek such protective order), the Receiving Party may furnish to such Governmental Authority without liability hereunder that portion of the Confidential Information which the Receiving Party is advised by counsel (which may be internal counsel) is legally required. (c) Nothing in this Article 11 shall be construed to prohibit or limit any Buyer’s or Company’s ability to disclose information (including Confidential Information) related to any Company or the Business. Section 11.04. Return of Confidential Information. (a) Upon the written request of the Disclosing Party, the Receiving Party shall promptly return to the Disclosing Party all written Confidential Information in its possession or in the possession of its employees or representatives or, at the Disclosing Party’s option, will destroy, and direct its representatives to destroy, all such Confidential Information (which destruction shall include, without limitation, the process of expunging, to the extent reasonably practicable, all such Confidential Information from any computer, hard drive, word processor, server, backup tape, or other electronic device containing such Confidential Information). Notwithstanding the foregoing, the Receiving Party may retain one archival copy of the Confidential Information in its confidential files for the purpose of complying with applicable laws or established company procedure regarding the preservation of business records. Section 11.05. Term of Article 11. With respect to Confidential Information delivered to a Receiving Party on or prior to the Closing Date, the obligations of this Article 11 shall survive the Closing for five years. With respect to Confidential Information delivered to a Receiving Party after the Closing Date, the obligations of this
29 Article 11 shall survive the Closing for a period of three years after the delivery of such Confidential Information to a Receiving Party. ARTICLE 12 NON-DISPARAGEMENT Section 12.01. Non-disparagement Covenant. Seller and Buyers agree and agree to cause their respective Affiliates (including, with respect to Buyers, each Company), for a period of five years after the Closing, to not publish or make any negative, disparaging or critical statements, whether written or oral, which are likely to adversely affect or otherwise malign the business or reputation of, with respect to the Seller and its Affiliates, the Buyers, the Affiliates of Buyers or the respective directors or officers of Buyers and such Affiliates and, with respect to the Buyers and their Affiliates, the Seller, its Affiliates or any of the respective directors or officers of Seller or such Affiliates, or do anything that may harm the reputation of any of them, provided, however, that the foregoing (i) is neither intended to, nor shall limit the ability of any party to testify truthfully in response to any valid subpoena or to engage in any other activity compelled or protected by law and (ii) shall apply only to publications and statements made by directors, senior officers and senior management of Seller, Buyers or their respective Affiliates who have knowledge of the terms of this Section 12.01 and the directors, senior officers and senior management of the Companies (or that are made by any Person at the direction of any of such directors, senior officers or senior management). Promptly after the Closing, Buyer shall cause the Companies to execute a Non Disparagement Agreement in favor of Seller covering the terms and conditions set forth in this Section 12.01. ARTICLE 13 MISCELLANEOUS Section 13.01. Notices. All notices, requests and other communications to any party hereunder shall be in writing (including electronic mail (“e-mail”) transmission) and shall be given, if to Buyers, to: Millicom International II N.V. Pareraweg 45 Curaçao Attention: Salvador Escalón E-mail: [email protected] with copies to: Shai Holding S.A. 2, rue du Fort Bourbon L-1249 Luxembourg Grand-Duchy of Luxembourg
30 Attention: Salvador Escalón E-mail: [email protected] Davis Polk & Wardwell LLP 450 Lexington Avenue New York, New York 10017 Attention: William Aaronson E-mail: [email protected] if to Seller, to: Miffin Associates Corp. Samuel Lewis Ave and 53 St Omega Building, 6th level Republic of Panama, Panama Attention: Roberto Bianchi E-mail: [email protected] with copies to: Winston & Strawn LLP 200 Park Avenue New York, New York 10166 Attention: Claude S. Serfilippi E-mail: [email protected] QIL+4 ABOGADOS, S.A. Diagonal 6 10-01 zona 10, Centro Gerencial Las Margaritas, Torre II, Oficina 302ª, Guatemala, Guatemala Attention: Marcos Ibarguen E-mail: [email protected] or such other address or e-mail as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 p.m. in the place of receipt and such day is a Business Day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding Business Day in the place of receipt. Section 13.02. Amendments and Waivers. (a) Any provision of this Agreement may be amended or waived if, but only if, such amendment or waiver is in writing and is signed, in the case of an amendment, by each party to this Agreement, or in the case of a waiver, by the party against whom the waiver is to be effective. (b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial
31 exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law. Section 13.03. Expenses. Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement shall be paid by the party incurring such cost or expense. Section 13.04. Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns; provided that no party may assign, delegate or otherwise transfer any of its rights or obligations under this Agreement without the consent of each other party hereto; except that any Buyer may transfer or assign its rights and obligations under this Agreement, in whole or from time to time in part, to (i) one or more of its Affiliates at any time and (ii) after the Closing Date, to any Person; provided that no such transfer or assignment shall relieve such Buyer of its obligations hereunder or enlarge, alter or change any obligation of any other party hereto or due to such Buyer. Section 13.05. Governing Law. This Agreement shall be deemed to have been executed in New York and shall be governed by and construed in accordance with the law of the State of New York without regard to the conflicts of law rules of such state. Section 13.06. Dispute Resolution. (a) Any and all disputes, controversies or claims arising out of, relating to or in connection with this Agreement or any Side Letter or the transactions contemplated hereby or thereby, including as to the formation, existence, validity, enforceability, interpretation, performance, breach and/or termination of this Agreement, such transactions or any Side Letter, between the parties (including, for the purposes of this Section 13.06, the Seller Owners), and their respective successors (each, a “Dispute”), shall be referred to and finally resolved, exclusively, by arbitration, administered by the International Court of Arbitration of the International Chamber of Commerce (the “ICC”), in accordance with its Rules of Arbitration in effect at the time the arbitration is initiated (the “Rules”). Each party (and the Seller Owners) agrees that it will not attempt to challenge, deny or defeat the jurisdiction of the Tribunal (as defined below) or bring any action, suit or proceeding arising out of, relating to or in connection with this Agreement or the Side Letter, or the transactions contemplated hereby or thereby, or the formation, existence, validity, enforceability, interpretation, performance, breach and/or termination of this Agreement or any Side Letter, in any court or before any tribunal or Governmental Authority, other than before the Tribunal (except any party may bring actions, suits or proceedings to enforce any award of the Tribunal as otherwise allowed by law). (b) The arbitration shall be conducted by an arbitral tribunal (the “Tribunal”) composed of three arbitrators. Each party shall designate one
32 arbitrator, and those two arbitrators shall designate the third arbitrator. If either party fails to designate an arbitrator within 30 days after the filing of the applicable Dispute with the ICC, such arbitrator shall be designated in accordance with the Rules. The seat, or legal place, of arbitration shall be New York, New York, and the language to be used in the arbitral proceedings shall be English, and all evidence that is produced in another language shall be translated into English. The governing law of this agreement to arbitrate shall be the law of the State of New York. Any decision or award issued by the Tribunal shall be final and binding on the parties. (c) The expenses of the arbitral proceedings, including, but not limited, to the administrative costs of the ICC and arbitrators’ fees, when applicable, shall be borne by each party in accordance with the Rules. Upon rendering the arbitral award, the Tribunal, in its discretion, may allocate among the parties to the arbitration all costs of the arbitration, including the fees and expenses of the arbitrators and reasonable attorney’s fees, expert witness expenses and other costs incurred by the parties. Other than as required by law or as necessary to enforce a decision or award of the Tribunal, the parties agree that the arbitral proceedings and the existence thereof shall be kept confidential and shall not be disclosed other than to the Tribunal, the ICC, the parties, their counsel, advisors, representatives and any person necessary to the conduct of the proceeding. Section 13.07. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. Section 13.08. Counterparts; Effectiveness; Third Party Beneficiaries. This Agreement may be signed in any number of counterparts (including by electronic means), each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement shall become effective when each party hereto shall have received counterparts hereof signed by each of the other parties hereto. Until and unless each party has received counterparts hereof signed by each other party hereto, this Agreement shall have no effect and no party shall have any right or obligation hereunder (whether by virtue of any other oral or written agreement or other communication). Except for the provisions of Article 8 which may be enforced directly by any Indemnified Party, Article 10 which may be enforced directly by the Seller Indemnified Parties and Buyer Indemnified Parties, the provisions of Section 10.07 which may be enforced directly by any Company Person Indemnitee, the provisions of Article 11 which may be enforced directly by any Disclosing Party and the provisions of Article 12 which may be enforced directly by any Affiliate, officer or director named therein, no provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties hereto and their respective successors and, subject to Section 13.04, assigns.
33 Section 13.09. Entire Agreement. This Agreement and the agreements referenced herein, including the Side Letters and the agreements of the Companies contemplated by Sections 10.02, 10.07, 11.01(d) and 12.01 constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersede all prior agreements and understandings, both oral and written, between the parties with respect to the subject matter of this Agreement. Section 13.10. Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other Governmental Authority to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such a determination, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible. Section 13.11. Specific Performance. (a) Buyers and Seller agree that irreparable damage would occur if any provision of this Agreement were not performed in accordance with the terms hereof and that monetary damages would be insufficient to compensate for a breach. The parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement, or to enforce specifically the performance of the terms and provisions hereof, in the courts of the State of New York in New York County or of the United States for the Southern District of New York. Each of the parties hereby submits to the jurisdiction of such courts for any such action or proceeding, and irrevocably consents to the service of process out of any of the aforementioned courts in any such action or proceeding at the address and in the manner set forth for notice in Section 13.06. (b) Buyers and Seller acknowledge and agree that Buyers or Seller may pursue both a grant of specific performance under this Section 13.11 and a recovery of damages for the other’s failure to consummate the Closing; provided that in no event shall any party be permitted or entitled to receive both (i) a grant of specific performance resulting in the consummation of the Closing in accordance with the terms hereof and (ii) a recovery of damages for the other’s failure to consummate the Closing. Section 13.12. Public Announcements. Subject to each Buyer’s reasonable judgment that it is otherwise required by Applicable Law or by the rules of a national securities exchange to make such disclosure, such Buyer shall not, and shall cause its Affiliates (as applicable) not to, make any public announcement regarding this Agreement, the Closing or the transactions contemplated by this Agreement to the financial community, any Governmental Authority, customers, suppliers or the general public unless prior to such public announcement, such Buyer has given Seller a
34 reasonable opportunity to comment on the form and timing of such public announcement and considered such comments in good faith. [Signature page follows.]
[Signature Page to Stock Purchase Agreement] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their respective authorized officers as of the day and year first above written. MILLICOM INTERNATIONAL II N.V. By: Name: Salvador Escalón Title: Authorised Person By: Name: Bart Vanhaeren Title: Authorised Person SHAI HOLDING S.A. By: Name: Salvador Escalón Title: Authorised Person By: Name: Bart Vanhaeren Title: Authorised Person MIFFIN ASSOCIATES CORP. By: Name: Title:
EXECUTION VERSION INDENTURE among TELEFÓNICA CELULAR DEL PARAGUAY S.A., as Company, CITIBANK, N.A., as Trustee, Note Registrar, Transfer Agent and Principal Paying Agent, and Banque Internationale à Luxembourg SA, as Luxembourg Paying Agent. Initially Relating to 5.875% Senior Unsecured Notes due 2027 Dated as of April 5, 2019
i TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions .....................................................................................................1 Section 1.02. Construction ................................................................................................35 ARTICLE 2 THE NOTES Section 2.01. Designation .................................................................................................36 Section 2.02. Authentication and Delivery of Notes .........................................................37 Section 2.03. Aggregate Amount; Additional Notes .........................................................37 Section 2.04. Form of Trustee’s Authentication ...............................................................38 Section 2.05. Form of the Notes........................................................................................38 Section 2.06. Maturity of the Notes ..................................................................................40 Section 2.07. Interest ........................................................................................................40 Section 2.08. Record Date ................................................................................................40 Section 2.09. Issuance.......................................................................................................40 Section 2.10. Denominations, etc .....................................................................................40 Section 2.11. Execution of Notes ......................................................................................41 Section 2.12. Registration; Restrictions on Transfer and Exchange ................................41 Section 2.13. Mutilated, Destroyed, Lost and Stolen Notes..............................................48 Section 2.14. Payment of Interest; Interest Rights Preserved ..........................................49 Section 2.15. Taxation ......................................................................................................50 Section 2.16. Persons Deemed Owners; Etc ....................................................................52 Section 2.17. Cancellation ................................................................................................52 Section 2.18. CUSIP and ISIN Numbers ..........................................................................52 Section 2.19. Noteholder Lists ..........................................................................................53 ARTICLE 3 RESERVED ARTICLE 4 REDEMPTION Section 4.01. Tax Redemption ..........................................................................................53 Section 4.02. Optional Redemption ..................................................................................54 Section 4.03. Optional Redemption upon Equity Offerings of the Company ...................55 Section 4.04. Method and Effect of Redemption ...............................................................55 Section 4.05. Deposit of Redemption Price ......................................................................57 Section 4.06. Notes Payable on Redemption Date ...........................................................57 Section 4.07. Selection by Trustee of Notes to be Redeemed ............................................57 Section 4.08. Notes Redeemed in Part ..............................................................................58 Section 4.09. Offer to Purchase ........................................................................................58
ii Section 4.10. Optional Redemption upon Certain Tender Offers .....................................61 ARTICLE 5 COVENANTS OF THE COMPANY Section 5.01. Maintenance of Office or Agency ...............................................................61 Section 5.02. Notice of Defaults and Events of Default ....................................................61 Section 5.03. Compliance Certificates..............................................................................61 Section 5.04. Limitation on Debt ......................................................................................62 Section 5.05. Limitation on Restricted Payments .............................................................65 Section 5.06. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries ............................................................................................................69 Section 5.07. RESERVED .................................................................................................70 Section 5.08. Limitation on Liens Securing the Company’s Debt ....................................70 Section 5.09. Limitation on Guarantees of the Company’s Subordinated Debt ...............70 Section 5.10. Limitation on Asset Dispositions ................................................................71 Section 5.11. Transactions with Affiliates ........................................................................73 Section 5.12. RESERVED .................................................................................................75 Section 5.13. Payment of Taxes ........................................................................................75 Section 5.14. Provision of Financial Information ............................................................75 Section 5.15. Limited Condition Transaction ...................................................................76 Section 5.16. Limitation on Lines of Business ..................................................................77 Section 5.17. RESERVED .................................................................................................77 Section 5.18. Unrestricted Subsidiaries............................................................................77 Section 5.19. Subsidiary Guarantors ................................................................................77 Section 5.20. Release from Certain Covenants ................................................................78 Section 5.21. Merger, Consolidations and Certain Sales of Assets of the Company .......78 Section 5.22. Change of Control.......................................................................................79 ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.01. Events of Default .........................................................................................79 Section 6.02. Acceleration of Maturity; Rescission and Annulment ................................81 Section 6.03. Delay or Omission Not Waiver ...................................................................81 Section 6.04. Waiver of Past Defaults ..............................................................................82 Section 6.05. Trustee May File Proofs of Claim ..............................................................82 Section 6.06. Trustee May Enforce Claims Without Possession of Notes ........................83 Section 6.07. Application of Money Collected ..................................................................83 Section 6.08. Limitation on Suits ......................................................................................83 Section 6.09. Unconditional Right of Noteholders to Receive Principal and Interest and Other Amounts ................................................................................................84 Section 6.10. Restoration of Rights and Remedies ...........................................................84 Section 6.11. Rights and Remedies Cumulative................................................................84 Section 6.12. Control by Noteholders ...............................................................................85 Section 6.13. Undertaking for Costs .................................................................................85 Section 6.14. Waiver of Stay or Extension Laws ..............................................................85
iii ARTICLE 7 CONCERNING THE TRUSTEE Section 7.01. Certain Rights and Duties of Trustee .........................................................85 Section 7.02. Trustee Not Responsible for Recitals; Etc ..................................................88 Section 7.03. Trustee and Others May Hold Notes ..........................................................88 Section 7.04. Moneys Held by Trustee or Paying Agent ..................................................88 Section 7.05. Compensation of the Trustee ......................................................................89 Section 7.06. Right of Trustee to Rely on Officer’s Certificates and Opinions of Counsel ..................................................................................................................90 Section 7.07. Persons Eligible for Appointment as Trustee .............................................90 Section 7.08. Resignation and Removal of Trustee; Appointment of Successor ..............90 Section 7.09. Acceptance of Appointment by Successor Trustee ......................................91 Section 7.10. Appointment of Authenticating Agent .........................................................92 Section 7.11. Appointment of Note Registrar, Paying Agents and Transfer Agent ..........94 Section 7.12. Reports by Trustee ......................................................................................94 Section 7.13. Waiver of Damages .....................................................................................95 ARTICLE 8 CONCERNING THE HOLDERS Section 8.01. Acts of Noteholders .....................................................................................95 Section 8.02. Notes Owned by Company and Affiliates Deemed Not Outstanding ..........96 ARTICLE 9 RESERVED ARTICLE 10 SUPPLEMENTAL INDENTURES Section 10.01. Supplemental Indenture with Consent of Noteholders..............................97 Section 10.02. Supplemental Indentures Without Consent of Noteholders ......................98 Section 10.03. Execution of Supplemental Indentures......................................................98 Section 10.04. Effect of Supplemental Indentures ............................................................99 Section 10.05. Reference in Notes to Supplemental Indentures .......................................99 ARTICLE 11 SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture ..................................................99 Section 11.02. Application of Trust Money ....................................................................100 ARTICLE 12 DEFEASANCE Section 12.01. Company’s Option to Effect Defeasance or Covenant Defeasance........100 Section 12.02. Defeasance and Discharge .....................................................................100 Section 12.03. Covenant Defeasance ..............................................................................101
iv Section 12.04. Conditions to Defeasance or Covenant Defeasance ...............................101 Section 12.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions ...............................................................102 Section 12.06. Reinstatement ..........................................................................................103 ARTICLE 13 MISCELLANEOUS Section 13.01. Compliance Certificates and Opinions ...................................................103 Section 13.02. Form of Documents Delivered to Trustee ...............................................104 Section 13.03. Notices, etc. to Trustee ............................................................................105 Section 13.04. Notices to Noteholders; Waiver ..............................................................105 Section 13.05. Effect of Headings and Table of Contents ..............................................106 Section 13.06. Successors and Assigns ...........................................................................106 Section 13.07. Severability Clause .................................................................................106 Section 13.08. Benefits of Indenture ...............................................................................107 Section 13.09. Legal Holidays ........................................................................................107 Section 13.10. Communication by Noteholders with other Noteholders ........................107 Section 13.11. Governing Law........................................................................................108 Section 13.12. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders ..................................................................................108 Section 13.13. Waiver of Jury Trial ................................................................................108 Section 13.14. Waiver of Immunity .................................................................................108 Section 13.15. Submission to Jurisdiction, Waivers .......................................................109 Section 13.16. Execution in Counterparts ......................................................................110 Section 13.17. Entire Agreement ....................................................................................110 EXHIBIT A-1 Form of Rule 144A Global Note EXHIBIT A-2 Form of Regulation S Global Note EXHIBIT B Form of Authentication and Delivery Order EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers or Exchanges of Rule 144A Global Notes to Regulation S Global Notes EXHIBIT D Form of Certificate for Transfer or Exchange of Regulation S Global Note to Rule 144A Global Note EXHIBIT E Form of Qualified Institutional Buyer Certification
INDENTURE (this “Indenture”) dated as of April 5, 2019, among Telefónica Celular del Paraguay S.A. (the “Company”), a corporation (sociedad anónima) incorporated and existing under the laws of Paraguay; Citibank, N.A., as trustee (in such capacity, the “Trustee”), principal paying agent, note registrar and transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg (the “Luxembourg Paying Agent”). W I T N E S S E T H: WHEREAS, the Company has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with this Indenture and is, on the date hereof, issuing U.S.$300,000,000 of its 5.875% Senior Unsecured Notes due 2027 under this Indenture (the “Notes”); WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes and the authentication and delivery thereof by the Trustee; WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee as provided in this Indenture, the valid, binding and legal obligations of the Company, and to constitute a valid indenture and agreement according to its terms, have been done; and WHEREAS, each of the parties hereto is entering into this Indenture for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions. The following capitalized terms shall have the meanings set forth below: “Acquired Debt” means Debt of the Company or its Subsidiary: (i) Incurred and Outstanding on the date on which a Subsidiary (a) was acquired by the Company or any of its Subsidiaries or (b) is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or its Subsidiary; or (ii) Incurred to provide all or part of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Subsidiary of the Company or was otherwise acquired by the Company or its Subsidiary; provided that, after giving pro forma effect to the transactions by which such Person became a Subsidiary of the Company or is merged, consolidated, amalgamated or
2 otherwise combined with the Company or its Subsidiary, (a) the Company would have been able to Incur $1.00 of additional Debt pursuant to Section 5.04(a), or (b) the Leverage Ratio would not be greater than such ratio before giving effect to such transactions. Acquired Debt shall be deemed to have been Incurred, with respect to clause (i) on the date such Person becomes a Subsidiary and, with respect to clause (ii) on the date of consummation of such acquisition of assets. “Act” when used with respect to any Noteholder, has the meaning set forth in Section 8.01. “Additional Amounts” has the meaning set forth in Section 2.15(a). “Additional Notes” has the meaning set forth in Section 2.03(b). “Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing. “Agent Member” means members of, or participants in, the Registered Depositary. “Asset Disposition” means any transfer, conveyance, sale, lease or other disposition by the Company or any Restricted Subsidiary (including a consolidation or merger or other sale of any such Restricted Subsidiary with, into or to another Person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary of the Company, but excluding a disposition by a Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary of the Company which is an 80% or more owned Subsidiary of the Company) of (i) shares of Capital Stock (other than directors’ qualifying shares and shares to be held by third parties to satisfy applicable legal requirements) or other ownership interests of a Restricted Subsidiary of the Company, (ii) substantially all of the assets of the Company or any Restricted Subsidiary representing a division or line of business or (iii) other assets or rights of the Company or any Restricted Subsidiary outside of the ordinary course of business; provided that the term “Asset Disposition” shall not include: (a) any disposition of Tower Equipment, including any Sale/Leaseback Transaction; provided that any cash or Cash Equivalents received in connection with such disposition or Sale/ Leaseback Transaction must be applied in accordance with Section 5.10; (b) a transfer of assets between or among the Company and any of its Restricted Subsidiaries;
3 (c) the issuance of Capital Stock by a Subsidiary to the Company or to another Subsidiary of the Company; (d) dispositions of assets of the Company or any Restricted Subsidiary, or the issuance or sale of Capital Stock of any Restricted Subsidiary in a single transaction or series of related transactions with an aggregate fair market value in any calendar year of less than the greater of $25.0 million and 3.0% of Total Assets (with unused amounts in any calendar year being carried over to the next succeeding year); (e) any disposition of Capital Stock of a Subsidiary pursuant to an agreement or other obligation with or to a Person (other than the Company or its Subsidiary) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (f) the sale, lease or other transfer of products, services, accounts receivable, inventory or other assets in the ordinary course of business and any sale or other disposition of damaged, surplus, worn-out or obsolete assets; (g) dispositions in connection with Permitted Liens; (h) disposals of assets, rights or revenue not constituting part of the Related Business and other disposals of non-core assets acquired in connection with any acquisition permitted under this Indenture; (i) licenses and sublicenses of the Company or any of its Subsidiaries in the ordinary course of business; (j) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business; (k) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings; (l) the granting of Liens not prohibited by Section 5.08; (m) a transfer or disposition of assets that is governed by Section 5.21; (n) a transfer or disposition of assets that is governed by Section 5.05; (o) the sale or other disposition of cash or Cash Equivalents; (p) the foreclosure, condemnation or any similar action with respect to any property or other assets;
4 (q) sales of accounts receivable and related assets or an interest therein of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Entity, and Investments in a Receivables Entity consisting of cash or Securitization Obligations; (r) any disposition or expropriation of assets or Capital Stock which the Company or any Subsidiary is required by, or made in response to concerns raised by, a regulatory authority or court of competent jurisdiction; (s) any disposition of Capital Stock, Debt or other securities of an Unrestricted Subsidiary; (t) any disposition of assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by the Company or any Subsidiary to such Person; (u) any disposition of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; provided that any cash or Cash Equivalents received in such disposition is applied in accordance with the requirements of Section 5.10; (v) contractual arrangements under long-term contracts with customers entered into by the Company or a Restricted Subsidiary in the ordinary course of business which are treated as sales for accounting purposes; provided that there is no transfer of title in connection with such contractual arrangement; (w) any sale or disposition with respect to property built, repaired, improved, owned or otherwise acquired by the Company or any Subsidiary pursuant to customary Sale/Leaseback Transactions, asset securitizations and other similar financings permitted by this Indenture; (x) any dispositions constituting the surrender of tax losses by the Company or a Subsidiary (1) to the Company or a Subsidiary; (2) in order to eliminate, satisfy or discharge any tax liability of any Person that was formerly a Subsidiary of the Company which has been disposed of pursuant to a disposal permitted by the terms of this Indenture, to the extent that the Company or a Subsidiary would have a liability (in the form of an indemnification obligation or otherwise) to one or more Persons in relation to such tax liability if not so eliminated, satisfied or discharged; and (y) Permitted Asset Swaps. “Authenticating Agent” has the meaning set forth in Section 7.10(a). “Authorized Agent” means any Paying Agent, including the Principal Paying Agent, Authenticating Agent or Note Registrar or other agent appointed by the Company or the Trustee in accordance with this Indenture to perform any function that this Indenture authorizes the Trustee or such agent to perform.
5 “Authorized Representative” of the Company or any other Person means its chief executive officer, president, chief operating officer, chief financial officer or any vice president or any member of its Board of Directors or any other governing body of such entity. The Company shall provide the Trustee with a list of Authorized Representatives on the Closing Date. “Authorized Officer” means any officer of the Trustee or any other individual who shall be duly authorized by appropriate corporate action on the part of the Trustee to authenticate Notes. “Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the Beneficial Ownership of any particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have Beneficial Ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning. “Board of Directors” when used with respect to a corporation, means either the Board of Directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them. “Board Resolution” means a copy of a resolution certified by the President, Chief Executive Officer, any Director or the Secretary of the Board of Directors of the Company to have been duly adopted by the Board of Directors or a committee thereof and to be in full force and effect on the date of such certification, and delivered to the Trustee. “Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in the Borough of Manhattan, the City of New York, in London, England, or in Paraguay are authorized or obligated by law or executive order to close. “Capital Lease Obligation” of any Person means the obligation to pay rent or other payment amounts under a lease of real or personal property of such Person which is required to be classified and accounted for as a capital lease on the face of a balance sheet of such Person in accordance with IFRS. The Stated Maturity of such obligation shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of Debt represented by such obligation shall be the capitalized amount thereof that would appear on the face of a balance sheet of such Person in accordance with IFRS.
6 “Capital Stock” of any Person means any and all shares, interests, participation or other equivalents (however designated) of corporate stock or other equity participation, including partnership interests, whether general or limited, of such Person. “Cash Equivalents” means, with respect to any Person: (i) (a) Government Securities and (b) any direct obligations of, or obligations guaranteed by, a member of the European Union for the payment of which obligations or guarantee the full faith and credit of such member of the European Union is pledged and which have a remaining weighted average life to maturity of not more than one year from the date of Investment therein; (ii) term deposit accounts (excluding current and demand deposit accounts), certificates of deposit and Eurodollar time deposits and money market deposits and bankers’ acceptances, in each case, issued by or with (a) Banco Itaú BBA, BBVA, Barclays Bank, BNP Paribas, Citigroup, Credit Agricole CIB, DNB, Goldman Sachs, J.P. Morgan, ICBC, Bank of China, Nordea, Standard Bank, Standard Chartered Bank, Scotiabank, HSBC, Banco Continental, Banco Regional, Visión Banco, Sudameris Bank, Banco Nacional de Fomento, Banco Atlas, Banco Familiar and their respective Affiliates, (b) a bank or trust company which is organized under the laws of the United States of America, any state thereof, the United Kingdom, Paraguay, Switzerland, Canada, Australia or any member state of the European Union, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $100 million (or the foreign currency equivalent thereof) and has outstanding debt which is rated “A3/A-” (or such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act), or (c) any money market fund sponsored by a U.S. registered broker dealer or mutual fund distributor; (iii) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii)(a) and (b) entered into with any financial institution meeting the qualifications specified in clause (ii)(b) above; (iv) commercial paper having one of the two highest ratings obtainable from Fitch or Moody’s and in each case maturing within 365 days after the date of acquisition; (v) money market mutual funds at least 95% of the assets of which constitute Cash Equivalents of the types described in clauses (i) through (iv) of this definition; (vi) with respect to any Person organized under the laws of, or having its principal business operations in, a jurisdiction outside the United States, the United Kingdom or the European Union, those Investments that are of the same type as investments in clauses (i),(iii) and (iv) of this definition except that the obligor thereon is organized under the laws of the country (or any political subdivision thereof) in which such Person is organized or conducting business; and (vii) up to $ 2 million in aggregate of other Investments held by the Company or its Restricted Subsidiaries.
7 “Cash Management Loans” means Debt arising in connection with cash management and cash pooling arrangements between the Restricted Group and Millicom and its Subsidiaries in the ordinary course of business. “Change of Control” means any event or circumstance, for whatever reason, whereby (i) any Person or group of Persons acting in concert (which does not have control of the Company at the date hereof) acquires control of the Company (whether directly or indirectly), provided, however, that this clause shall not be triggered if such control is acquired by a Person or Persons who are themselves directly or indirectly controlled by Millicom or if such control is acquired through the acquisition of control of Millicom or (ii) all or substantially all of the assets or business of the Company are sold. For the purpose of this definition, “control” of a Person means the holding of more than 50% of the Voting Stock of such Person, the power to appoint and/or remove all or a majority of the members of the board of directors of such Person or otherwise directly or indirectly to control or have the power to control the affairs and policies of such Person. “Change of Control Triggering Event” will be deemed to have occurred if a Change of Control has occurred and a Rating Decline occurs. “Clearstream” means Clearstream Banking, Société Anonyme, Luxembourg. “Closing Date” means April 5, 2019, being the date that the Notes are issued hereunder, representing the initial issuance under this Indenture. “Code” means the U.S. Internal Revenue Code of 1986, as amended. “Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the U.S. Trust Indenture Act of 1939, then the body performing such duties at such time. “Common Stock” of any Person means Capital Stock of such 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 such Person, to shares of Capital Stock of any other class of such Person. “Company” has the meaning set forth in the preamble to this Indenture. “Company Expenses” means (i) the reasonable fees and expenses actually Incurred in connection with service of the Notes or any exchange of securities or tender for Outstanding Notes, (ii) fees, taxes and expenses required to maintain the corporate existence of the Company, and (iii) any other fees and expenses relating to (i) or (ii). “Company Order” means a written request or order signed in the name of the Company by one or more of its Authorized Representatives delivered to the Trustee and, in the case of an Company Order given pursuant to Section 2.02(a), substantially in the form of Exhibit B.
8 “Comparable Treasury Issue” means the United States Treasury security selected by the Independent Investment Banker that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities with a maturity of April 15, 2022. “Comparable Treasury Price” means, with respect to any redemption date, (i) the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day preceding that redemption date, as set forth in the daily statistical release designated H.15(519) (or any successor release) published by the Federal Reserve Bank of New York and designated “Composite 3:30 p.m. Quotations for US Government Securities” or (ii) if such release (or any successor release) is not published or does not contain such prices on such Business Day, the average of the Reference Treasury Dealer Quotations for that redemption date. “Consolidated EBITDA” means, for any period, operating profit or loss of the Restricted Group, as such amount is determined in accordance with IFRS, plus the sum of the following amounts, in each case, without double counting (losses shall be added (as a positive number) and gains shall be deducted, in each case, to the extent such amounts were included in calculating operating profit): (i) depreciation and amortization expenses; (ii) the net loss or gain on the disposal and impairment of assets; (iii) share-based compensation expenses; (iv) at the Company’s option, other non-cash charges reducing operating profit (provided that if any such non-cash charge represents an accrual of or reserve for potential cash charges in any future period, the cash payment in respect thereof in such future period shall reduce operating profit to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period) less other non-cash items of income increasing operating income (excluding any such non-cash item of income to the extent it represents (a) a receipt of cash payments in any future period, (b) the reversal of an accrual or reserve for a potential cash item that reduced operating income in any prior period and (c) any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase operating income in such prior period); (v) any material extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge, including any charges or reserves in respect of any restructuring, redundancy, relocation, refinancing, integration or severance or other post- employment arrangements, signing, retention or completion bonuses, transaction costs, acquisition costs, disposition costs, business optimization, information technology implementation or development costs, costs related to governmental investigations and curtailments or modifications to pension or postretirement benefits schemes, litigation or any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events);
9 (vi) at the Company’s option, the effects of adjustments in its consolidated financial statements pursuant to IFRS (including inventory, property, equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items) attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated acquisition or joint venture Investment or the amortization or write-off or write-down of amounts thereof, net of taxes; (vii) any reasonable expenses, charges or other costs related to any Equity Offering, Investment, acquisition, disposition, recapitalization or the Incurrence of any Debt, in each case, as determined in good faith by a responsible financial or accounting officer of the Company; (viii) any gains or losses on associates; (ix) any unrealized gains or losses due to changes in the fair value of equity Investments; (x) any unrealized gains or losses due to changes in the fair value of Interest Rate, Currency or Commodity Price Agreements; (xi) any unrealized gains or losses due to changes in the carrying value of put options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate; (xii) any unrealized gains or losses due to changes in the carrying value of call options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate; (xiii) any net foreign exchange gains or losses; (xiv) at the Company’s option, any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies; (xv) accruals and reserves that are established or adjusted within twelve months after the closing date of any acquisition that are so required to be established or adjusted as a result of such acquisition in accordance with IFRS; (xvi) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the Company or a Restricted Subsidiary has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period);
10 (xvii) the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets; (xviii) any net gain (or loss) realized upon any Sale/Leaseback Transaction that is not sold or otherwise disposed of in the ordinary course of business, determined in good faith by a responsible financial or accounting officer of the Company; (xix) the amount of loss on the sale or transfer of any assets in connection with an asset securitization program, receivables factoring transaction or other receivables transaction (including, without limitation, a Qualified Receivables Transaction); and (xx) Specified Legal Expenses. For the purposes of calculating Consolidated EBITDA for any period, as of such date of determination: (1) if, since the beginning of such period the Company or any Restricted Subsidiary has made any Asset Disposition or disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”), including any Sale occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period; (2) if, since the beginning of such period the Company or any Restricted Subsidiary (by merger or otherwise) will have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquires any company, any business, or any group of assets constituting an operating unit of a business (any such Investment or acquisition, a “Purchase”), including any such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; (3) if, since the beginning of such period any Person (that became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) will have made any Sale or any Purchase that would have required an adjustment pursuant to clauses (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period, including anticipated synergies and cost savings as if such Sale or Purchase occurred on the first day of such period; (4) whenever pro forma effect is applied, the pro forma calculations will be as determined in good faith by a responsible financial or accounting officer of the Company (including in respect of anticipated synergies and cost savings) as though the full effect of
11 synergies and cost savings were realized on the first day of the relevant period and shall also include the reasonably anticipated full run rate cost savings effect (as calculated in good faith by a responsible financial or chief accounting officer of the Company) of cost savings programs that have been initiated by the Company or its Subsidiaries as though such cost savings programs had been fully implemented on the first day of the relevant period; provided that if the aggregate amount of such anticipated synergies and cost savings exceed 5.0% of Consolidated EBITDA (calculated without reference to the applicable Purchase or Sale), such amounts are confirmed by a reputable, independent third party advisor; (5) for the purposes of determining the amount of Consolidated EBITDA under this definition denominated in a foreign currency, the Company may, at its option, calculate the U.S. Dollar equivalent amount of such Consolidated EBITDA based on either (i) the weighted average exchange rates for the relevant period used in the consolidated financial statements of the Company for such relevant period or (ii) the relevant currency exchange rate in effect on the Issue Date; and (6) the amount of any fees payable by any person in the Restricted Group to another person in the Restricted Group or Millicom or any of its Subsidiaries in connection with any services rendered (including, without limitation, any Value Creation Fees and similar fees) shall be excluded. For the purpose of calculating the Consolidated EBITDA of the Company, any Joint Venture Consolidated EBITDA shall be added to the amount determined in accordance with the foregoing. “Consolidated Interest Expense” means for any period the consolidated interest expense included in a consolidated income statement (without deduction of interest income) of the Company and its Restricted Group for such period calculated on a consolidated basis in accordance with IFRS, including without limitation or duplication (or, to the extent not so included, with the addition of), (i) the amortization of Debt discounts; (ii) any payments or fees with respect to letters of credit, bankers’ acceptances or similar facilities; (iii) fees with respect to interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements; (iv) Preferred Stock dividends (other than with respect to Redeemable Stock) declared and paid or payable; (v) accrued Redeemable Stock dividends, whether or not declared or paid; and (vi) interest on Debt guaranteed by the Company or any member of its Restricted Group. The term “Consolidated Interest Expense” shall not include: (a) interest on Capital Lease Obligations, or (b) interest on Debt owed to Millicom or any Subsidiary of Millicom. “Corporate Trust Office” means the principal office of the Trustee or Note Registrar at which the corporate trust business of the Trustee or Note Registrar, as the case may be, shall at any particular time be principally administered, which at the time of the execution of this Indenture (a) for note transfer/surrender purposes, is located at 480 Washington Boulevard, 30th Floor, Jersey City, New Jersey 07310, Facsimile: (973) 461-
12 7191 or (973) 461-7192, Attention: Agency & Trust, and (b) for all other purposes is located at 388 Greenwich Street, New York, New York 10013, Facsimile: (212) 816- 5527, Attention: Agency & Trust - Telefónica Celular del Paraguay. “Covenant Defeasance” has the meaning set forth in Section 12.03. “Credit Facility” means, a debt facility, arrangement, instrument, trust deed, note purchase agreement, indenture, purchase money financing, commercial paper facility or overdraft facility with banks or other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Debt, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended, in whole or in part from time to time, and in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including, but not limited to, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (i) changing the maturity of any Debt Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of Debt Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof. “Debt” means (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent: (i) the principal of and premium, if any, in respect of every obligation of such Person for money borrowed; (ii) the principal of and premium, if any, in respect of every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person (but only to the extent such obligations are not reimbursed within 30 Days following receipt by such Person of a demand for reimbursement); and (iv) the principal component of every obligation of the type referred to in clauses (i) through (iii) of another Person and all dividends of another Person the payment of which, in either case, such Person has Guaranteed or is responsible or liable for, directly or indirectly, as obligor, Guarantor or otherwise to the extent not otherwise included in the Debt of such Person. The “amount” or “principal amount” of Debt at any time of determination as used herein represented by (1) any Debt issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with IFRS, (2) any Redeemable Stock, shall be the maximum fixed redemption or repurchase price in respect thereof, and (3) any amount of Debt that has been cash-collateralized, to the extent so cash-collateralized, shall be excluded from any calculation of Debt. Notwithstanding anything else to the contrary, for all purposes under this Indenture, the amount of Debt Incurred, repaid, redeemed, repurchased or otherwise acquired by a
13 Subsidiary of the Company shall equal the liability in respect thereof determined in accordance with IFRS and reflected on the Company’s consolidated statement of financial position. The term “Debt” shall not include: (a) Cash Management Loans; (b) any liability of the Company or any of its Subsidiaries attributable to a synthetic instrument or any other arrangement or agreement to the extent such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS and recorded as a current liability on the Company’s consolidated statement of financial position; (c) any Restricted MFS Cash; (d) any liability of the Company attributable to a put option or similar instrument, arrangement or agreement entered into after the Issue Date granted by the Company relating to an interest in any other entity, in each case to the extent such option has not been exercised or such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS, and recorded as a current liability on the Company’s consolidated statement of financial position; (e) any standby letter of credit, performance bond or surety bond provided by the Company or any Subsidiary that is customary in the Related Business to the extent such letters of credit or bonds are not drawn upon or, if and to the extent drawn upon, are honored in accordance with their terms; (f) any deposits or prepayments received by the Company or a Subsidiary from a customer or subscriber for its service and any other deferred or prepaid revenue; (g) any obligations to make payments in relation to earn outs; (h) Debt which is in the nature of equity (other than Redeemable Stock) or equity derivatives; (i) Capital Lease Obligations or operating leases; (j) Receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any debt in respect of Qualified Receivables Transactions, including without limitation guarantees by a Receivables Entity of the obligations of another Receivables Entity; (k) pension obligations or any obligation under employee plans or employment agreements;
14 (l) any “parallel debt” obligations to the extent that such obligations mirror other Debt; (m) any payments or liability for assets acquired or services supplied deferred (including trade payables) in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied; (n) the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Redeemable Stock or, with respect to any Subsidiary, any Preferred Stock (including, in each case, any accrued dividends); (o) any Debt (contingent or otherwise) which, when incurred, is without recourse to the Company or any Restricted Subsidiary, as applicable; and (p) the net obligations of such Person under any Interest Rate, Currency or Commodity Price Agreement. “Default” means an event that with the passing of time or giving of notice, or both would constitute an Event of Default. “Defaulted Interest” has the meaning set forth in Section 2.14(b). “Defeasance” has the meaning set forth in Section 12.02. “Early Tax Redemption” has the meaning set forth in Section 4.01(a). “Early Tax Redemption Date” has the meaning set forth in Section 4.01(c). “Early Tax Redemption Price” has the meaning set forth in Section 4.01(c). “Equity Offering” means a sale of Qualified Capital Stock of the Company or a Holding Company of the Company pursuant to which the Net Cash Proceeds are contributed to the Company in the form of a subscription for, or a capital contribution in respect of, Qualified Capital Stock of the Company. “ERISA” means the United States Employee Retirement Income Security Act of 1974, as amended. “Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V. “Euro MTF” means the Euro MTF, the alternative market of the Luxembourg Stock Exchange. “Event of Default” has the meaning set forth in Section 6.01. “Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended and in effect from time to time.
15 “Excluded Additional Amounts” has the meaning set forth in Section 2.15(a). “Excluded Contributions” means Net Cash Proceeds received by the Company from: (i) contributions to its common equity capital; (ii) Net Cash Proceeds from any stockholder loans; or (iii) the sale (other than to a Subsidiary of the Company or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Company or any Subsidiary) of Capital Stock (other than Redeemable Stock) of the Company; in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the Company on the date such capital contributions are made or the date such equity interests are sold, as the case may be. “Expiration Date” has the meaning set forth in Section 4.09(b). “First Redemption Date” means April 15, 2022. “Fiscal Year” means the fiscal year of the Company ended on December 31 of each calendar year, subject to modification from time to time which shall be promptly notified to the Trustee in writing. “Fitch” means Fitch Rating, Ltd. and its successors. “GAAP” means generally accepted accounting principles in the United States. “Government Securities” means direct obligations of, or obligations guaranteed by, the United States for the payment of which obligations or guarantee the full faith and credit of the United States is pledged and which have a remaining weighted average life to maturity of not more than one year from the date of Investment therein. “Governmental Authority” means any regulatory, administrative or other legal body, any court, tribunal or authority or any public legal entity or public agency of Paraguay or the United States or any other jurisdiction whether created by federal, provincial or local government, or any other legal entity now existing or hereafter created, or now or hereafter controlled, directly or indirectly, by any public legal entity or public agency of any of the foregoing. “Gradation” means a gradation within a Rating Category or a change to another Rating Category, which shall include: (i) “+” and “-” in the case of Fitch’s current Rating Categories (e.g., a decline from BB+ to BB would constitute a decrease of one Gradation), (ii) 1, 2 and 3 in the case of Moody’s current Rating Categories (e.g., a decline from Ba1 to Ba2 would constitute a decrease of one Gradation), or (iii) the
16 equivalent in respect of successor Rating Categories of Fitch or Moody’s or Rating Categories used by Rating Agencies other than Fitch and Moody’s. “Guarantee” by any Person means any obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guaranteeing, any Debt of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Debt, (ii) to purchase property, securities or services for the purpose of assuring the holder of such Debt of the payment of such Debt, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt (and “Guaranteed”, “Guaranteeing” and “Guarantor” shall have meanings correlative to the foregoing); provided, however, that the Guarantee by any Person shall not include endorsements by such Person for collection or deposit, in either case, in the ordinary course of business. “Holding Company” means any Person (other than a natural person) which legally and Beneficially Owns more than 50% of the Voting Stock and/or Capital Stock of another Person, either directly or through one or more Subsidiaries. “IFRS” means the International Financial Reporting Standards promulgated by the International Accounting Standards Board (IASB) or any successor board or agency as in effect on the Issue Date; provided that the Company may, at any time, irrevocably elect by written notice to the Trustee to use IFRS as in effect from time to time, and, upon such notice, references herein to IFRS shall thereafter be construed to mean IFRS as in effect from time to time. The Company also may, at any time, irrevocably elect by written notice to the Trustee to use GAAP as in effect from time to time in lieu of IFRS and, upon such notice, references herein to IFRS shall thereafter be construed to mean GAAP as in effect from time to time. “Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other obligation, including by acquisition of Subsidiaries (the Debt of any other Person becoming a Subsidiary of such Person being deemed for this purpose to have been incurred at the time such other Person becomes a Subsidiary), or the recording, as required pursuant to IFRS or otherwise, of any such Debt or other obligation on the balance sheet of such Person (and “Incurrence”, “Incurred”, “Incurrable” and “Incurring” shall have meanings correlative to the foregoing); provided, however, that a change in IFRS that results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt. “Indebtedness” of any Person means any obligation or amount payable (whether present, future, actual or contingent) pursuant to an agreement or instrument involving or evidencing money borrowed or received, the advance of credit, a conditional sale or transfer with recourse or with an obligation to repurchase or pursuant to a lease with
17 substantially the same economic effect as any such agreement or instrument and which, under IFRS, would constitute a capitalized lease obligation. “Indenture” has the meaning set forth in the preamble to this Indenture. “Independent Investment Banker” means one of the Reference Treasury Dealers appointed by the Company to act as the “Independent Investment Banker.” “Initial Purchasers” means BBVA Securities, Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc., and Itau BBA USA Securities, Inc., acting as such pursuant to the Purchase Agreement. “Interest Rate, Currency or Commodity Price Agreement” of any Person means any forward contract, futures contract, swap, option or other financial agreement or arrangement (including, without limitation, caps, floors, collars and similar agreements) relating to, or the value of which is dependent upon, interest rates, currency exchange rates or commodity prices or indices (excluding contracts for the purchase or sale of goods in the ordinary course of business). “Interest Payment Date” has the meaning set forth in Section 2.07. “Interest Period” means the period beginning on an Interest Payment Date and ending on the day before the next Interest Payment Date, or, in the case of the initial Interest Period, the period beginning on the Closing Date and ending on the day before the first Interest Payment Date. “Intergroup Subordinated Loans” means (a) Debt of the Restricted Group owed to Millicom or any of its Subsidiaries (other than the Restricted Group), and (b) Debt of Millicom or any of its Subsidiaries (other than the Restricted Group) owed to any of the Restricted Group that, in each case, (1) it will not have the benefit of any negative pledge covenant, collateral or security interest, (2) the terms of which provide that, in the event that (a) an installment of interest with respect to such Debt is not paid on the applicable interest payment date or (b) the principal of, or premium, if any, on any such Debt is not paid on the stated maturity or other date set for redemption, then the obligation to make such payment on such interest payment date, maturity date or other redemption date will not be a default under such Debt until after the maturity date of the Notes, and (3) the terms of which provide that no amount will be payable in bankruptcy, liquidation or any similar proceeding with respect to the Person Incurring such Debt until all claims of senior creditors of such Person, including, without limitation, the Holders of the Notes, admitted in such proceeding have been satisfied. “Investment” by any Person means any direct or indirect loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise) to, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person, including any payment on a Guarantee of any obligation of such other Person, but shall not include (a) trade
18 accounts receivable in the ordinary course of business on credit terms made generally available to the customers of such Person, or (b) commission, travel, payroll, entertainment, relocation and similar advances to officers and employees and profit sharing and other employee benefit plan contributions made in the ordinary course of business. “Investment Grade” means (i) BBB- or above in the case of Fitch (or its equivalent under any successor Rating Categories of Fitch), (ii) Baa3 or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), and (iii) the equivalent in respect of the Rating Categories of any Rating Agencies. “Issue Date” means April 5, 2019. “Joint Venture Consolidated EBITDA” means an amount equal to the product of (i) the Consolidated EBITDA of any joint venture (determined in good faith by a responsible financial or accounting officer of the Company on the same basis as provided for in the definition of “Consolidated EBITDA” (with the exception of clause (i) and the last sentence thereof) as if each reference to the “Company” in such definition was to such joint venture) whose financial results are not consolidated with those of the Company in accordance with IFRS and (ii) a percentage equal to the direct equity ownership percentage of the Company and/or its Subsidiaries in the Capital Stock of such joint venture and its Subsidiaries. “Law” means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, or injunction, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority charged with the interpretation or administration thereof. “Legend” has the meaning set forth in Section 2.12(j). “Leverage Ratio” means, when used in connection with any Incurrence (or deemed Incurrence) of Debt, means the ratio of (i) the consolidated principal amount of Debt of the Company and its Restricted Group outstanding as of the most recent available quarterly or annual balance sheet, after giving pro forma effect to (a) the Incurrence of such Debt and any other Debt Incurred since such balance sheet date, (b) the receipt and application of the proceeds thereof and (c) (without duplication) the repayment, redemption or repurchase of any other Debt since such balance sheet date, to (ii) Consolidated EBITDA for the last four full fiscal quarters prior to the Incurrence of such Debt for which consolidated financial statements are available, determined on a pro forma basis as if any such Debt had been Incurred and the proceeds thereof had been applied, or such other Debt had been repaid, redeemed or repurchased, as applicable, at the beginning of such four fiscal quarter period. “Lien” means, with respect to any property or assets, any mortgage, pledge, security interest, lien, charge, encumbrance, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any conditional sale or other title
19 retention agreement having substantially the same economic effect as any of the foregoing). “Limited Condition Transaction” means (i) any Investment or acquisition, in each case, by one or more of the Company and its Subsidiaries of any assets, business or Person whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment. “Luxembourg Paying Agent” means the Person named as Luxembourg Paying Agent in the preamble to this Indenture and its successors and assigns, according to Section 7.12(b). “Majority Noteholders” means the Noteholders of more than 50% in aggregate principal amount of the Notes then Outstanding at any time. “Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of Capital Stock of the Company on the date of the declaration of the relevant dividend, multiplied by (ii) the arithmetic mean of the closing prices per share of such Capital Stock for the 30 consecutive trading days immediately preceding the date of the declaration of such dividend. “Material Subsidiary” means any Restricted Subsidiary of the Company constituting a “Significant Subsidiary” of the Company in accordance with Rule 1-02(w) of Regulation S-X under the Securities Act of 1933, as amended in effect on the date hereof. “Maturity,” when used with respect to any Note, means the date on which the principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. “Millicom” means Millicom International Cellular S.A. “Minority Shareholder Loans” means Debt of the Company or a Subsidiary of the Company that is issued to and held by an equity owner of the Company or such Subsidiary, other than the Company or a Subsidiary of the Company. “Mobile Cash” means Mobile Cash Paraguay S.A. “Moody’s” means Moody’s Investor Service, Inc. and its successors. “Net Available Proceeds” from any Asset Disposition means cash or readily marketable cash equivalents received (including by way of sale or discounting of a note, installment receivable or other receivable, but excluding any Related Assets and other consideration received in the form of assumption by the acquiror of Debt or other obligations relating to such properties or assets) therefrom by the Company or any Restricted Subsidiary, net of (i) all legal, title and recording tax expenses, commissions
20 and other fees and expenses Incurred and all federal, state, provincial, foreign and local taxes required to be accrued as a liability as a consequence of such Asset Disposition; (ii) all payments made by the Company or any Restricted Subsidiary, on any Debt which is secured by such assets in accordance with the terms of any Lien upon or with respect to such assets or which must by the terms of such Debt or Lien, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition; (iii) all distributions and other payments made to other equity holders in the Company’s Restricted Subsidiaries, or joint ventures as a result of such Asset Disposition; and (iv) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS, against any liabilities associated with such assets and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Disposition, including, without limitation, liabilities under any indemnification obligations and severance and other employee termination costs associated with such Asset Disposition, in each case as determined by the Board of Directors, in its reasonable good faith judgment evidenced by a resolution of the Board of Directors filed with the Trustee; provided, however, that any reduction in such reserve within twelve months following the consummation of such Asset Disposition will be treated for all purposes of this Indenture and the Notes as a new Asset Disposition at the time of such reduction with Net Available Proceeds equal to the amount of such reduction. “Net Cash Proceeds,” with respect to any issuance or sale of Capital Stock or any Incurrence of Debt, means the cash proceeds of such issuance or sale or such Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees, expenses and charges actually Incurred in connection with such issuance or sale or such Incurrence and net of taxes paid or payable (in the good faith determination of the Company) in connection with such issuance or sale or such Incurrence (including any repatriation of the proceeds of such sale or Incurrence). “Non-Permitted Holder” has the meaning set forth in Section 2.12(m). “Non-U.S. Person” means any Person who is not a “U.S. Person” as defined in Regulation S under the Securities Act. “Noteholder” or “Holder” means a Person in whose name a Note is registered in the Note Register. “Note Rate” has the meaning set forth in Section 2.07. “Note Register” has the meaning set forth in Section 2.12(a). “Note Registrar” means any Person acting as Note Registrar pursuant to Section 2.12(a). “Notes” has the meaning set forth in the recitals to this Indenture. “Offer” has the meaning set forth in Section 4.09(b).
21 “Offer to Purchase” has the meaning set forth in Section 4.09(a). “Officer’s Certificate” means a certificate signed by the President, Chairman of the Board, any Vice Chairman of the Board, any Director, the Chief Executive Officer, the Chief Operating Officer, any Senior Vice President, or the Secretary of the Board of the Company, and delivered to the Trustee. “Opinion of Counsel” means a written opinion of counsel in compliance with the requirements of Section 13.01 from any Person either expressly referred to herein or otherwise reasonably satisfactory to the Trustee which may include, without limitation, counsel for the Company, whether or not such counsel is an employee of the Company. “Optional Redemption” means the early redemption of the Notes at the option of the Company as set forth in Sections 4.02, 4.03 and Section 4.10. “Optional Redemption Date” means the proposed date of redemption pursuant to Sections 4.02, 4.03 or Section 4.10. “Optional Redemption Price” means the price at which the Notes are redeemed pursuant to Sections 4.02, 4.03 or Section 4.10. “Outstanding,” when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Notes which have been paid or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee knows
22 to be so owned shall be so disregarded. Notes 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 Notes and that the pledgee is not the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor. “Pari Passu Debt” means any Debt of the Company that ranks pari passu in right of payment to the Notes. “Paying Agent” means any Person that is authorized by the Company to pay the principal of or any premium or interest on any Notes on behalf of the Company. “Payment Date” means any of the Interest Payment Dates, the Maturity, or any other date on which payments on the Notes in respect of principal, interest or other amounts, including as a result of any acceleration of the Notes, are required to be paid pursuant to this Indenture or the Notes. “Permitted Asset Swap” means the concurrent purchase and sale or exchange of related business assets or a combination of related business assets, cash and Cash Equivalents between the Company or any of its Subsidiaries and another Person. “Permitted Debt” has the meaning set forth in Section 5.04(b). “Permitted Investments” means (1) Investments in (i) Cash Equivalents or (ii) deposit accounts, certificates of deposit and time deposits and money market deposits, bankers’ acceptances and overnight bank deposits, in each case issued by or with a bank or trust company which is organized under the laws of the jurisdiction in which the Company or Restricted Subsidiary which makes such Investment operates; provided that the Company shall use its reasonable efforts to ensure that any such bank or trust company described in this clause (ii) is a credit-worthy institution; (2) Investments by the Company or any Restricted Subsidiary in the Company or a Restricted Subsidiary that is primarily engaged in a Related Business; (3) Investments by the Company or any Restricted Subsidiary in a Person, if as a result of such Investment (i) such Person becomes a Restricted Subsidiary that is primarily engaged in a Related Business or (ii) such Person is merged, consolidated or amalgamated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, the Company or a Restricted Subsidiary that is primarily engaged in a Related Business; (4) Investments acquired as consideration as permitted under Section 7.10; (5) Restricted Payments directly or indirectly to the Company to fund permitted Company Expenses; (6) reasonable and customary payments to or on behalf of any of the directors, officers or employees of the Restricted Group or Millicom or any of its Subsidiaries, or in reimbursement of reasonable and customary payments or reasonable and customary expenditures made or Incurred by such Persons as directors, officers or employees; (7) Investments in customers and suppliers in the ordinary course of business which either (A) generate accounts receivable or (B) are accepted in settlement of bona fide disputes; (8) loans or advances to employees and officers (or loans to any direct or indirect parent, the proceeds of which are used to make loans or advances to employees or officers, or Guarantees of
23 third-party loans to employees or officers) in the ordinary course of business; (9) stock, obligations or securities received in satisfaction of judgments, foreclosure of Liens or settlement of debts (whether pursuant to a plan of reorganization or similar arrangement or otherwise); (10) any Investment existing on the issue date; (11) Investments in Interest Rate, Currency or Commodity Price Agreements not otherwise prohibited under this Indenture; (12); Investments in Millicom or any Subsidiary of Millicom for the purpose of acquiring any property so long as such acquired property is transferred to the Company or a Restricted Subsidiary within 60 days of such Investment; (13) Investments made pursuant to clauses (iii)(A)(4), (5) and (6) of Section 5.10(a); (14) Cash Management Loans; (15) Intergroup Subordinated Loans; (16) any purchase or acquisition of any Capital Stock of SPM; (17) any purchase or acquisition of any Capital Stock of Transcom; and (18) other Investments in Persons primarily engaged in a Related Business in an aggregate cumulative amount at any time outstanding not to exceed $20 million. “Permitted Liens” means: (a) Liens for taxes, assessments or governmental charges or levies on the property of the Company or any Restricted Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceeds promptly instituted and diligently concluded; provided that any reserve or other appropriate provision that shall be required in conformity with IFRS shall have been made therefor; (b) Liens imposed by law, such as statutory Liens of landlords’, carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, on the property of the Company or any Restricted Subsidiary arising in the ordinary course of business or Liens arising solely by virtue of any statutory or common law (but not contractual) provisions relating to bankers’ Liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution; (c) Liens on the property of the Company or any Restricted Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance bids, trade contracts, letters of credit performance or return-of-money bonds, surety bonds or other obligations of a like nature and Incurred in a manner consistent with industry practice, in each case which are not Incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Company and the Restricted Group taken as a whole; (d) Liens on property at the time the Company or any Restricted Subsidiary acquired such property, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company or any Restricted Subsidiary;
24 (e) Liens on the property of a Person at the time such Person becomes a Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company, any other Restricted Subsidiary that is not a direct or, prior to such time, indirect Subsidiary of such Person; (f) pledges or deposits by the Company or any Restricted Subsidiary under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Company or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of the Company or any Restricted Subsidiary or deposits for the payment of rent, in each case Incurred in the ordinary course of business; (g) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character; (h) any provision for the retention of title to any property by the vendor or transferor of such property which property is acquired by the Company or a Restricted Subsidiary in a transaction entered into in the ordinary course of business of the Company or a Restricted Subsidiary and for which kind of transaction it is customary market practice for such retention of title provision to be included; (i) Liens arising by means of any judgment, decree or order of any court, to the extent not otherwise resulting in a Default hereunder so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order have not been fully terminated or the period within which such proceedings may be initiated has not expired and any Liens that are required to protect or enforce rights in any administrative, arbitration or other court proceeding in the ordinary course of business; (j) Liens securing any Credit Facility permitted under clause (iii) of Section 5.04(b), or any Interest Rate, Currency or Commodity Price Agreement; (k) Liens on and pledges of the Capital Stock of any Unrestricted Subsidiary to secure Debt of that Unrestricted Subsidiary; (l) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any real property leased by the Company or any Restricted Subsidiary or similar agreements relating thereto and any condemnation or eminent domain proceedings or compulsory purchase order affecting real property; (m) Liens existing on the date of this Indenture; (n) Liens in favor of the Company or any Restricted Subsidiary;
25 (o) Liens on insurance policies and the proceeds thereof, or other deposits, to secure insurance premium financings in respect of the Company or any of its Restricted Subsidiaries; (p) Liens arising from financing statement filings (or other similar filings in any applicable jurisdiction) regarding operating leases entered into by any Restricted Subsidiary of the Company in the ordinary course of business; (q) Liens on goods (and the proceeds thereof) and documents of title and the property covered thereby securing Debt in respect of commercial letters of credit issued to facilitate the purchase, shipment or storage of such inventory or other goods; (r) Liens on property of the Company or any Restricted Subsidiary of the Company to secure Debt Incurred by the Company or such Restricted Subsidiary pursuant to clauses (viii), (ix), (x) and (xi) of Section 5.04(b); (s) Liens for the purpose of securing the payment of all or a part of the purchase price of Capital Lease Obligations or payments Incurred by the Company or its Subsidiaries to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that such Liens do not encumber any other assets or property of the Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto; (t) Liens on the property of the Company or any Restricted Subsidiary to replace in whole or in part, any Lien described in the foregoing clauses (a) through (s); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Debt being refinanced or in respect of property that is the security for a Permitted Lien hereunder; (u) any interest or title of a lessor under any Capital Lease Obligation or operating lease; (v) Liens on any escrow account used in connection with an acquisition of property or Capital Stock of any Person or pre-funding a refinancing of Debt otherwise permissible by this Indenture; (w) Liens on the Company’s and any of its Subsidiaries’ deposits in favor of financial institutions arising from any netting or set-off arrangement substantially consistent with its current practice for the purpose of netting debt and credit balances substantially consistent with the Company’s or the Subsidiaries’ existing cash pooling arrangements; (x) Liens Incurred in the ordinary course of business of the Company or any of its Subsidiaries with respect to obligations that do not exceed the greater of $25.0 million or 3.0% of Total Assets at any one time outstanding and that do not in the aggregate materially detract from the value of the property of the Company and the
26 Restricted Subsidiaries, taken as a whole, or materially impair the use thereof in the operation of business by the Company or such Restricted Subsidiary; (y) Liens over cash or other assets that secure collateralized obligations Incurred as Permitted Debt; provided that the amount of cash collateral does not exceed the principal amount of the Permitted Debt; (z) Liens on Receivables and related assets of the type described in the definition of “Qualified Receivables Transaction” Incurred in connection with a Qualified Receivables Transaction, and Liens on Investments in Receivables Entities; (aa) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Transaction; (bb) Liens for the purpose of perfecting the ownership interests of a purchaser of Receivables and related assets pursuant to any Qualified Receivables Transaction; (cc) Liens arising in connection with other sales of Receivables permitted hereunder without recourse to the Company or any of its Subsidiaries; (dd) Liens securing Debt or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; (ee) Liens in respect of the ownership interests in, or assets owned by, any joint ventures or similar arrangements, other than joint ventures and similar arrangements that are Restricted Subsidiaries, securing obligations of such joint ventures or similar agreements; (ff) any encumbrance or restriction (including, but not limited to, put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement; (gg) Liens for the benefit of the holders of the Notes; and (hh) Liens over rights under loan agreements relating to, or over notes or similar instruments evidencing, the on-loan of proceeds received by a Restricted Subsidiary from the issuance of Debt, which Liens are created to secure payment of such Debt. “Permitted Refinancing Debt” means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, for purposes of this definition and clause (vii) of Section 5.04(b), a “refinancing”) of any Debt of the Company or a Restricted Subsidiary of the Company or pursuant to this definition, including any successive refinancings, as long as: (i) such Permitted Refinancing Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (a) the aggregate principal amount (or if Incurred with original issue discount, the
27 aggregate accreted value plus all accrued interest) then outstanding of the Debt being refinanced; and (b) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing; (ii) such Permitted Refinancing Debt has (a) a Stated Maturity that is either (1) no earlier than the Stated Maturity of the Debt being refinanced or (2) after the Stated Maturity of the Notes and (b) a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Debt being refinanced; and (iii) if the Debt being refinanced is subordinated in right of payment to the Notes, such Permitted Refinancing Debt is subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Debt being refinanced; and (iv) if the Company was the obligor on the Debt being refinanced, such Permitted Refinancing Debt is Incurred by the Company. Permitted Refinancing Debt in respect of any Credit Facility or any other Debt may be Incurred from time to time after the termination, discharge or repayment of all or any part of such Credit Facility or other Debt. “Person” means any natural person, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature. “Place of Payment,” when used with respect to the Notes, means the office or agency of the Trustee maintained pursuant to Section 5.01 and such other place or places, if any, where the principal of and interest on the Notes are payable as specified herein. “Plans” has the meaning set forth in Section 2.12(k)(v). “Predecessor Notes”, with respect to any particular Note, means every previous Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; for the purposes of this definition, any Note authenticated and delivered under Section 2.13 in exchange for or in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or stolen Note. “Preferred Stock” of any Person means Capital Stock of such Person of any class or classes (however designated) that ranks 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 such Person, to shares of Capital Stock of any other class of such Person. “Principal Paying Agent” means Citibank, N.A., in its capacity as the principal Paying Agent and its successors and assigns. “Process Agent” has the meaning set forth in Section 13.15(b).
28 “Purchase Agreement” means the purchase agreement dated as of March 28, 2019, among the Company and the Initial Purchasers. “Purchase Amount” has the meaning set forth in Section 4.09(b)(iii). “Purchase Date” has the meaning set forth in Section 4.09(b). “Purchase Money Obligations” means any Debt Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise. “Purchase Price” has the meaning set forth in Section 4.09(b)(iv). “Purchasing Party” has the meaning set forth in Section 4.09(a). “Qualified Capital Stock” of any Person means any and all Capital Stock of such Person other than Redeemable Stock. “Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries may sell, convey or otherwise transfer to (i) a Receivables Entity (in the case of a transfer by the Company or any of the Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by a Receivables Entity), or may grant a Lien in, any Receivables (whether now existing or arising in the future) of the Company or any of the Restricted Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Receivables, all contracts and all Guarantees or other obligations in respect of such accounts receivable, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which Liens are customarily granted, in connection with asset securitization involving Receivables and any Interest Rate, Currency or Commodity Price Agreement entered into by the Company or any such Restricted Subsidiary in connection with such Receivables. “QIB” means a qualified institutional buyer as defined in Rule 144A under the Securities Act. “Rating Agency” means each of (i) Fitch and Moody’s or (ii) if either Fitch or Moody’s or both of them are not making ratings of the Notes publicly available, a nationally recognized U.S. rating agency or agencies, as the case may be, selected by the Company, which will be substituted for Fitch or Moody’s or both, as the case may be. “Rating Category” means (i) with respect to Fitch, any of the following categories (any of which may include a “+” or “-”): AAA, AA, A, BBB, BB, B, CCC, CC, C, R, SD and D (or equivalent successor categories); (ii) with respect to Moody’s, any of the following categories (any of which may include a “1”, “2” or “3”): Aaa, Aa, A,
29 Baa, Ba, B, Caa, Ca, and C (or equivalent successor categories), and (iii) the equivalent of any such categories of Fitch or Moody’s used by another Rating Agency, if applicable. “Rating Decline” will be deemed to have occurred if at any time within the earlier of (i) 90 days after the date of public notice of a Change of Control, or of the Company’s intention or the intention of any Person to effect a Change of Control and (ii) the occurrence of the Change in Control (which period shall in either event be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by a Rating Agency), the rating of the Notes is decreased by either Rating Agency by two or more Gradations and such rating decline is expressly stated to be due to a Change of Control. “Receivable” means a right to receive payment arising from a sale or lease of goods or the performance of services by a Person pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an “account,” “chattel paper,” “payment intangible” or “instrument” under the Uniform Commercial Code as in effect in the State of New York and any “supporting obligations” as so defined. “Receivables Entity” means a Wholly Owned Subsidiary of the Company (or another Person in which the Company or any Subsidiary makes an Investment or to which the Company or any Subsidiary transfers Receivables and related assets) which engages in no activities other than in connection with the financing of Receivables and which is designated by the Board of Directors or senior management of the Company (as provided below) as a Receivables Entity: (i) no portion of the Debt or any other obligations (contingent or otherwise) of which: (a) is Guaranteed by the Company or any Subsidiary (excluding Guarantees of obligations (other than the principal of, and interest on, Debt) pursuant to Standard Securitization Undertakings); (b) is recourse to or obligates the Company or any Subsidiary in any way other than pursuant to Standard Securitization Undertakings; or (c) subjects any property or asset of the Company or any Subsidiary, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings except, in each such case, Permitted Liens as defined in clauses (xxvi) through (xxix) of the definition thereof; (ii) with which neither the Company nor any Subsidiary has any material contract, agreement, arrangement or understanding (except in connection with a Purchase Money Note or Qualified Receivables Transaction) other than on terms not materially less
30 favorable to the Company or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Company, other than fees payable in the ordinary course of business in connection with servicing Receivables; and (iii) to which neither the Company nor any Subsidiary has any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than those related to or incidental to the relevant Qualified Receivables Transaction). Any such designation by the Board of Directors or senior management of the Company shall be evidenced to the Trustee by promptly filing with the Trustee a certified copy of the resolution of the Board of Directors of the Company giving effect to such designation or an Officer’s Certificate certifying that such designation complied with the foregoing conditions. “Receivables Fees” means reasonable distributions or payments made directly or by means of discounts with respect to any participation interest issued or sold in connection with, and other fees paid to a Person that is not a Receivables Entity in connection with, any Qualified Receivables Transaction. “Receivables Repurchase Obligation” means any obligation of a seller of Receivables in a Qualified Receivables Transaction to repurchase Receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. “Record Date” means the April 1 or October 1, as the case may be, immediately preceding an Interest Payment Date. “Redeemable Stock” of any Person means any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including upon the occurrence of an event) matures or is required to be redeemed (pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time prior to the final Stated Maturity of the Notes. “Reference Treasury Dealer” means BBVA Securities, Inc., BNP Paribas Securities Corp., Citigroup Global Markets Inc., and Itau BBA USA Securities, Inc. or any of their respective affiliates which are primary U.S. Government Securities dealers; provided, however, that if any of the foregoing shall cease to be a primary U.S. Government Securities dealer in New York City (a “Primary Treasury Dealer”), the Company shall substitute therefor another nationally recognized investment banking firm that is a Primary Treasury Dealer. “Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue
31 (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding that redemption date. “Registered Depositary” means, with respect to the Notes issuable or issued in whole or in part in the form of one or more Global Notes, The Depository Trust Company, having a principal office at 55 Water Street, New York, New York 10041- 0099, together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its securities payment and transfer operations, for so long as it shall be a clearing agency registered under the Exchange Act, or such successor as the Company shall designate from time to time in an Officer’s Certificate delivered to the Trustee. “Regulation S” means Regulation S promulgated under the Securities Act, as amended and in effect from time to time. “Regulation S Global Note” has the meaning set forth in Section 2.05(c). “Related Assets” means all assets, rights (contractual or otherwise) and properties, whether tangible or intangible (including ownership interests), used or intended for use in connection with a Related Business. “Related Business” means any business in which the Company or its Subsidiaries are engaged, directly or indirectly, that consists primarily of, or are related to, operating, acquiring, developing or constructing any telecommunications services (including, without limitation, fixed and mobile telephony, broadband internet, network-related services, cable television, broadcast content, network-neutral services, electronic, transactional, financial and commercial services related to the provision of telephony or internet services) and related businesses. “Related Person” of any Person means any other Person directly or indirectly owning (a) 5% or more of the outstanding Common Stock of such Person (or, in the case of a Person that is not a corporation, 5% or more of the equity interest in such Person) or (b) 5% or more of the combined voting power of the Voting Stock of such Person. “Relevant Taxing Jurisdiction” has the meaning set forth in Section 2.15(a). “Remaining Scheduled Payments” means, with respect to each Note to be redeemed, the sum of (i) the redemption price of such Note on the First Redemption Date, such redemption price being set forth in Section 4.02(b), plus (ii) all required interest payments due on such Note through the First Redemption Date that would be due after the date on which such Note is being redeemed; provided, however, that, if that redemption date is not an interest payment date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to that redemption date.
32 “Restricted Cash” means the amount of cash that would be stated as “restricted cash” on the consolidated statement of financial position of the Company as of such date in accordance with IFRS. “Responsible Officer”, when used with respect to the Trustee, means any officer in the Corporate Trust Office having direct responsibility for the administration of this Indenture (or any successor group of the Trustee), or any other officer of the Trustee to whom any corporate trust matter is referred because of such officer’s knowledge and familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. “Restricted Group”, when used in respect of the Company, means the Company and the Restricted Subsidiaries, taken together on a consolidated basis. “Restricted MFS Cash” means, as of any date of determination, an amount equal to any cash paid in or deposited by or held on behalf of any customer or dealer of, or any other third party in relation to, one or more of the Company’s Subsidiaries engaged in the provision of mobile financial services and designated as “restricted cash” on the consolidated statement of financial position of the Company, together with any interest thereon. “Restricted Payment” has the meaning set forth in Section 5.05. “Restricted Subsidiary” means any Subsidiary of the Company, other than an Unrestricted Subsidiary, and “Restricted Subsidiaries” means each Restricted Subsidiary, collectively. “Rule 144” means Rule 144 promulgated under the Securities Act, as amended and in effect from time to time. “Rule 144A” means Rule 144A promulgated under the Securities Act, as amended and in effect from time to time. “Rule 144A Global Note” has the meaning set forth in Section 2.05(b) hereof. “Sale/Leaseback Transaction” means an arrangement relating to property now owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from such Person. “Securities Act” means the U.S. Securities Act of 1933, as amended and in effect from time to time. “Securitization Obligation” means any Debt or other obligation of any Receivables Entity.
33 “Senior Secured Debt” means, as of any date of determination, any Debt of the Company or any Restricted Subsidiary that is secured by a security interest in any assets of the Company or any of its Subsidiaries. “Specified Legal Expenses” means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’ fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative). “SPM” means Servicios y Productos Multimedios S.A. “SPM Transaction” means the acquisition of the assets or Capital Stock of SPM by the Company or a subsidiary thereof or the consolidation of SPM with the Company by merger or acquisition. “Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by the Company or any Subsidiary which are reasonably customary in a securitization of Receivables transactions, including, without limitation, those relating to the servicing of the assets of a Receivables Entity, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. “Stated Maturity,” when used with respect to any security or any installment of interest thereon, means the date specified in such security as the fixed date on which the principal of such security or such installment of interest is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the company unless such contingency has occurred). “Subsidiary” of any Person means (i) a corporation more than 50% of the combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof. “Subsidiary Guarantors” has the meaning set forth in Section 5.19. “Taxes” has the meaning set forth in Section 2.15(a). “Technical Services Agreement” means that certain technical services agreement, dated as of January 1, 2008, between Millicom and the Company.
34 “Total Assets” means the consolidated total assets of the Company and its Subsidiaries as shown on the Company’s most recent consolidated statement of financial position prepared on the basis of IFRS prior to the relevant date of determination calculated to give pro forma effect to any acquisitions (including through mergers or consolidations) and dispositions that have occurred subsequent to such period, including any such acquisitions to be made with the proceeds of Debt giving rise to the need to calculate Total Assets. “Tower Equipment” means passive infrastructure related to telecommunications services, excluding telecommunications equipment, but including, without limitation, towers (including tower lights and lightning rods), power breakers, deep cycle batteries, generators, voltage regulators, main AC power, rooftop masts, cable ladders, grounding, walls and fences, access roads, shelters, air conditioners and BTS batteries owned by the Company or any Subsidiary. “Transaction Documents” means, collectively, this Indenture, the Notes and the Notes. “Transcom” means Transcom Paraguay S.A. “Transfer Agent” means Citibank, N.A., in its capacity as the Transfer Agent and its successors and assigns. “Treasury Rate” means, with respect to any redemption date of a Note, the rate per annum equal to the semi-annual equivalent yield to the First Redemption Date (computed as of the third Business Day immediately preceding the redemption date of such Note) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date. “Trustee” means the Person named as the “Trustee” in the preamble to 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. “United States” or “U.S.” means the United States of America. “Unrestricted Subsidiary” means (1) any Subsidiary designated as such by the Company’s Board of Directors as set forth below and (2) any Subsidiary of an Unrestricted Subsidiary. The Company’s Board of Directors may designate any of the Company’s Subsidiaries to be an Unrestricted Subsidiary provided (A) no Default with respect to any Debt of such Subsidiary or any Subsidiary (other than any Unrestricted Subsidiary) of such Subsidiary (including any right which the holders thereof may have to take enforcement action against such Subsidiary) would permit (upon notice, lapse of time or both) any holder of Debt to declare a Default on such Debt or cause the payment thereof to be accelerated or payable prior to its Stated Maturity, and (B) if the Subsidiary to be so designated has total assets in excess of $250,000, the Company could make a Restricted Payment as a Permitted Investment in an amount equal to the fair market value
35 of the Company’s Investment in such Subsidiary pursuant to Section 5.05 and such amount is thereafter treated as a Restricted Payment for the purpose of calculating the aggregate amount available for Restricted Payments thereunder. “U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than U.S. Dollars, at any time of determination thereof, the amount of U.S. Dollars obtained by translating such other currency involved in such computation into U.S. Dollars at the spot rate for the purchase of U.S. Dollars with the applicable other currency as published in the Financial Times on the date that is two Business Days prior to such determination. “U.S. Government Obligation” has the meaning set forth in Section 12.04(a). “Value Creation Fees” means any fees, royalties, management, consultancy or stewardship fees, service fees and any other fees paid by any of the Restricted Group to Millicom or any of its subsidiaries (other than the Restricted Group). “Voting Stock” of any Person means Capital Stock of such Person which ordinarily has voting power for the election of directors (or Persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency. “Weighted Average Life to Maturity” means, when applied to any Debt or Preferred Stock at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Debt or liquidation preference of such Preferred Stock, as the case may be, into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal or upon mandatory redemption, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one- twelfth) that will elapse between such date and the making of such payment. “Wholly Owned Subsidiary” means (i) in respect of any Person, a Person, all of the Capital Stock of which (other than (a) directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law, regulation or to ensure limited liability and (b) in the case of a Receivables Entity, shares held by a Person that is not an Affiliate of the Company solely for the purpose of permitting such Person (or such Person’s designee) to vote with respect to customary major events with respect to such Receivables Entity, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or other customary events) is owned by that Person directly or (ii) indirectly by a Person that satisfies the requirements of clause (i). Section 1.02. Construction. For all purposes of this Indenture (and for all purposes of any other Transaction Document or any other instrument or agreement that incorporates provisions of this Indenture by reference), except as otherwise expressly provided or unless the context otherwise requires:
36 (a) the terms defined in this Article have the meanings assigned to them in this Article 1, and include the plural as well as the singular; (b) except as otherwise expressly provided herein, (i) all accounting terms used herein shall be interpreted, (ii) all financial statements and all certificates and reports as to financial matters required to be delivered to the Trustee hereunder shall be prepared and (iii) all calculations made for the purposes of determining compliance with this Indenture shall (except as otherwise expressly provided herein) be made in accordance with, or by application of, IFRS; (c) unless otherwise specified, all references in this Indenture (including the Appendices and Schedules hereto) to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Indenture; (d) the words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (e) unless the context clearly indicates otherwise, pronouns having a masculine or feminine gender shall be deemed to include the other; (f) unless otherwise expressly specified, any agreement, contract or document defined or referred to herein shall mean such agreement, contract or document as in effect as of the date hereof, as the same may thereafter be amended, supplemented or otherwise modified from time to time in accordance with the terms of this Indenture and the other Transaction Documents and shall include any agreement, contract, instrument or document in substitution or replacement of any of the foregoing entered into in accordance with the terms of this Indenture and the other Transaction Documents; (g) any reference to any Person shall include its permitted successors and assigns in accordance with the terms of this Indenture and the other Transaction Documents including, in the case of any Governmental Authority, any Person succeeding to its functions and capacities; and (h) unless the context clearly requires otherwise, references to “Law” or to any particular Law shall include Laws or such particular Law as in effect at each, every and any of the times in question, including any amendments, replacements, supplements, extensions, modifications, consolidations, restatements, revisions or reenactments thereto or thereof, and whether or not in effect at the date of this Indenture. ARTICLE 2 THE NOTES Section 2.01. Designation. (a) There is hereby created a series of 5.875% Senior Unsecured Notes due 2027 in the aggregate principal amount of U.S.$300,000,000 which are to be issued pursuant to this Indenture.
37 (b) Each Note shall constitute Indebtedness of the Company payable out of the Company’s general assets and properties. The Notes shall be direct unsecured and unsubordinated Indebtedness of the Company and shall at all times rank pari passu among themselves and at least equal in right of payment with all of the Company’s other present and future unsubordinated, unsecured Indebtedness from time to time outstanding. Section 2.02. Authentication and Delivery of Notes. (a) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with an Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes as in this Indenture provided and not otherwise. (b) No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication, in the form provided for in Section 2.04 hereof, executed by the Trustee by the manual signature of any Authorized Officer, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. (c) The Trustee shall have the right to decline to authenticate and deliver the Notes under this Section 2.02 if the Trustee determines that such action may not lawfully be taken by the Company or the Trustee or if the Trustee in good faith with appropriate authority shall determine that such action does not comply with the provisions of this Indenture or any document or instrument delivered in connection herewith, or could expose the Trustee to personal liability. Prior to the authentication and delivery of the Notes, the Trustee shall also receive such other funds, accounts, documents, certificates, instruments or opinions as may be required hereunder or it may request in order to provide it with assurances that all action necessary in connection herewith has been taken. (d) Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued or sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation as provided in Section 2.17 together with a written statement (which need not comply with Section 13.02 and need not be accompanied by an Opinion of Counsel) stating that such Note has never been issued or sold by the Company, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never have been or be entitled to the benefits hereof. Section 2.03. Aggregate Amount; Additional Notes. (a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. (b) Subject to compliance with Section 5.04 hereof, the Company may from time to time issue additional notes (“Additional Notes”) ranking pari passu with each of
38 the Notes and with the same terms as to status, redemption and otherwise as such Notes (except for payment of interest accruing prior to the issue date of such Additional Notes or for the first payment of interest following the issue date of such Additional Notes). The Additional Notes will be consolidated and treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions, and offers to purchase, with the Notes initially issued pursuant to this Indenture. (c) All Additional Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take benefit of all the terms, conditions and provisions of this Indenture except that interest will accrue on the Additional Notes from their date of issuance; provided, however, that unless such Additional Notes are issued under a separate CUSIP number, such Additional Notes must be fungible with the Notes for U.S. federal income tax purposes. Section 2.04. Form of Trustee’s Authentication. The Trustee’s certificate of authentication on all Notes shall be in substantially the following form: “This Note is one of the Notes referred to in the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: Authorized Officer Section 2.05. Form of the Notes. Forms Generally. (a) The form of the Notes shall be as set forth in the applicable portion of Exhibit A hereto. (b) Rule 144A Global Notes. The Notes initially sold in the United States to any U.S. Person that is a QIB shall be issued in the form of one permanent global note for the Notes in definitive, fully registered form without interest coupons substantially in the form of Exhibit A-1 attached hereto (each, a “Rule 144A Global Note”), which shall be deposited on behalf of the subscribers of such Notes represented thereby with the Trustee as custodian for, and registered in the name of a nominee of, the Registered Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. (c) Regulation S Global Notes. The Notes initially sold outside the United States to Non-U.S. Persons in accordance with Regulation S may be issued in the form of one or more permanent global notes in definitive, fully registered form without interest coupons substantially in the form of Exhibit A-2 attached hereto (each, a “Regulation S Global Note”). Such Regulation S Global Notes shall be deposited on behalf of the subscribers for such Notes represented thereby with the Trustee as custodian for, and registered in the name of a nominee of, the Registered Depositary for the respective
39 accounts of Euroclear and Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided. (d) Book-Entry Provisions. This Section 2.05(d) shall apply only to Global Notes deposited with or on behalf of the Registered Depositary. (i) The provisions of the “Operating Procedures of the Euroclear System” of Euroclear and the “Terms and Conditions Governing Use of Participants” of Clearstream, respectively, shall be applicable to the Regulation S Global Notes insofar as interests in such Global Notes are held by the members or participants of Euroclear or Clearstream, as the case may be. (ii) Agent Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Trustee, as custodian for the Registered Depositary, and the Registered Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Registered Depositary or impair, as between the Registered Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial interest in any Global Note. (e) At such time as all beneficial interests in a particular Global Note have been exchanged for Notes in definitive form or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.17. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or in the form of Notes in definitive form, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Registered Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Registered Depositary at the direction of the Trustee to reflect such increase. (f) The forms of Notes may have 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, consistent herewith, be applicable thereto or determined by officers of the Company executing such Notes, as evidenced by their execution thereof. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereof on the face of the Note. If the Notes
40 conflict or are inconsistent with the provisions of this Indenture, then this Indenture shall control. Section 2.06. Maturity of the Notes. The Notes shall mature on April 15, 2027 (the “Stated Maturity”); provided that no payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes or upon redemption prior to the Stated Maturity pursuant to Article 4 hereof. Section 2.07. Interest. Interest shall accrue on the Notes at the rate of 5.875% per annum for each Interest Period (the “Note Rate”). All interest shall be paid by the Company to the Trustee pursuant to Section 2.14 and distributed by the Trustee in accordance with this Indenture semiannually in arrears on April 15 and October 15 of each year (each, an “Interest Payment Date”) (or if such date is not a Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding, commencing on October 15, 2019, to the Person in whose name a Note is registered at the close of business on the preceding Record Date. Interest shall be calculated based on a 360-day year of twelve 30-day months. Notwithstanding anything herein to the contrary, interest on the Notes at the Note Rate shall continue to accrue in the event such interest is not paid on the scheduled Interest Payment Date or the Stated Maturity. References in this Indenture to “interest” shall be deemed to include any Additional Amounts pursuant to Section 2.15 of this Indenture, unless the context otherwise specifically requires. Section 2.08. Record Date. The Trustee and each Authorized Agent may treat the Person in whose name any Note is registered on the applicable Record Date as the Noteholder for all purposes under this Indenture. Section 2.09. Issuance. The Notes shall be issued only in a transaction exempt from registration under the Securities Act to (a) Persons and entities that are “qualified institutional buyers” pursuant to Rule 144A under the Securities Act, and (b) other permitted Persons or entities pursuant to Regulation S under the Securities Act. The Notes shall be subject to restrictions on transfer and resale as provided in Section 2.12 hereof. Section 2.10. Denominations, etc. The Notes shall be issued only in fully registered form, without coupons and as otherwise provided herein. Notes sold pursuant to Rule 144A shall be issued in the form of one or more Rule 144A Global Notes in minimum denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold pursuant to Regulation S shall be issued in the form of one or more Global Notes in minimum denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. Beneficial interests in any Global Notes shall be shown on, and transfers thereof shall be effected only through, the book-entry records maintained by the Registered Depositary and its participants. Notes issued in physical, certificated, non- global form shall not be permitted to be traded through the facilities of the Registered Depositary, except in connection with a transfer of a Note in certificated, non-global form
41 to a transferee that takes delivery in the form of beneficial interests in a Global Note pursuant to Rule 144A or Regulation S, as the case may be. Section 2.11. Execution of Notes. (a) The Notes shall be executed on behalf of the Company by one of its Authorized Representatives. The signature of any such officer on the Notes may be manual or facsimile. Notes bearing the manual or facsimile signatures of individuals who were, at the time such signatures were affixed, the proper officers 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 Notes or did not hold such offices at the date of such Notes. (b) Pending the preparation of definitive Notes as contemplated in Section 2.05, the Company may execute, and upon a Company Order, the Trustee shall authenticate and deliver, temporary Notes, including temporary global notes, that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Authorized Representatives executing such Notes may determine, as conclusively evidenced by their execution of such Notes. (c) If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. The definitive Notes shall be printed, lithographed or engraved, or produced by any combination of these methods, or in any other manner permitted by the rules and regulations of any applicable securities exchange, all as determined by the Authorized Representatives executing such definitive Notes, as evidenced by their execution of such Notes. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Company for such purpose under Section 5.01, without charge to the Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and upon receipt of the Company Order, the Trustee shall authenticate and deliver in exchange therefor the same aggregate principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes. Section 2.12. Registration; Restrictions on Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office of the Note Registrar a register which, subject to such reasonable procedures as the Company may prescribe, shall provide for the registration of Notes and for the registration of transfers and exchanges of Notes. This register and, if there shall be more than one Note Registrar, the combined registers maintained by all such note registrars, are herein sometimes referred to as the “Note Register”. The Trustee is hereby appointed the initial Note Registrar for the purpose of registering Notes and transfers and exchanges of Notes as herein provided. Upon any resignation or removal of the Note Registrar, the Company shall promptly appoint a successor, or in the absence of such appointment, assume the duties of such Note Registrar. The Company may appoint one or more co-registrars. No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but
42 the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes. (b) If a Person other than the Trustee is appointed by the Company as Note Registrar, the Company will give the Trustee prompt written notice of the appointment of a Note Registrar and of the location, and any change in the location, of the Note Register, and the Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Trustee shall have the right to rely upon such Note Register as to the names and addresses of the Noteholders and the principal amounts and numbers of such Notes. (c) Subject to the provisions of this Section 2.12, at the option of the Noteholder, certificated Notes may be exchanged for other certificated Notes of the same class, in any authorized denominations and of a like original principal amount, upon surrender of the Notes to be exchanged at the Corporate Trust Office of the Trustee or such other office as the Trustee may designate for such purposes. Whenever any certificated Notes are surrendered for exchange, the Company shall execute, and upon receipt of a Company Order, the Trustee or Authenticating Agent shall authenticate and deliver, the certificated Notes that the Noteholder making the exchange is entitled to receive. (d) Every certificated Note presented or surrendered for registration of transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the Holder thereof or its attorney duly authorized in writing. (e) No Note may be sold or transferred (including, without limitation, by pledge or hypothecation) unless such sale or transfer is exempt from the registration requirements of the Securities Act and is exempt from applicable state or foreign securities laws. (f) No Note may be offered, sold or delivered as part of the distribution by the Initial Purchasers at any time, or otherwise, within the United States or to, or for the benefit of, U.S. Persons except to Persons that are QIBs. The Notes may be sold or resold, as the case may be, outside the United States to Non-U.S. Persons in accordance with Regulation S under the Securities Act. (g) So long as any Global Note remains Outstanding and is held by or on behalf of the Registered Depositary, transfers and exchanges of such Global Note, in whole or in part, shall only be made in accordance with Section 2.05(d) and this Section 2.12(g). (i) Rule 144A Global Notes to Regulation S Global Notes. If a Holder of a beneficial interest in a Rule 144A Global Note deposited with the Registered Depositary wishes at any time to exchange such Rule 144A Global Note for an interest in the corresponding Regulation S Global Note, or to transfer such interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in
43 the form of an interest in the corresponding Regulation S Global Note, such Noteholder, provided that such Noteholder or, in the case of a transfer, the transferee, is a Non-U.S. Person, subject to the rules and procedures of the Registered Depositary, may exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent beneficial interest in the corresponding Regulation S Global Note. Upon receipt by the Note Registrar of (A) instructions given in accordance with the Registered Depositary’s procedures from an Agent Member directing the Note Registrar to credit or cause to be credited a beneficial interest in the corresponding Regulation S Global Note, but not less than the authorized denomination applicable to such Holder’s Notes, in an amount equal to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (B) a written order, in accordance with the Registered Depositary’s procedures, containing information regarding the participant account of the Registered Depositary to be credited with such increase and (C) a certificate in the form of Exhibit C attached hereto given by the Holder of such beneficial interest stating that the exchange or transfer of such note has been made in compliance with the transfer restrictions applicable to the Global Notes, then the Note Registrar shall approve the instruction at the Registered Depositary to reduce the principal amount of the Rule 144A Global Note and to increase the principal amount of the Regulation S Global Note by the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred or exchanged and to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Regulation S Global Note equal to the reduction in the principal amount of the Rule 144A Global Note. (ii) Regulation S Global Note to Rule 144A Global Note. If a Holder of a beneficial interest in a Regulation S Global Note deposited with the Registered Depositary wishes at any time to exchange its interest in such Regulation S Global Note for an interest in the corresponding Rule 144A Global Note or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Rule 144A Global Note, such Noteholder, subject to the rules and procedures of an Agent Member of the Registered Depositary, as the case may be, may exchange or transfer, or cause the exchange or transfer of such interest for an equivalent beneficial interest in the corresponding Rule 144A Global Note. Upon receipt by the Note Registrar of (A) instructions from Euroclear, Clearstream and/or the Registered Depositary, as the case may be, directing the Note Registrar to cause to be credited a beneficial interest in the corresponding Rule 144A Global Note in an amount equal to the beneficial interest in such Regulation S Global Note, but not less than the authorized denomination applicable to such Noteholder’s Notes, to be exchanged or transferred, such instructions to contain information regarding the participant account with the Registered Depositary to be credited with such increase, (B) a certificate in the form of Exhibit D attached hereto given by the Holder of such beneficial interest and stating, among other things, that, in the case of an exchange, the Noteholder is a QIB or, in the case of a transfer, the Person transferring such interest in such Regulation S Global Note reasonably believes that the Person acquiring such interest in a Rule 144A Global Note is a QIB, is
44 obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (C) a certificate in the form of Exhibit E attached hereto given by the proposed transferee stating that it is a QIB, then the Note Registrar shall approve the instruction at the Registered Depositary to reduce, or cause to be reduced, the principal amount of the Regulation S Global Note by the aggregate principal amount of the beneficial interest in the Regulation S Global Note to be transferred or exchanged and the Note Registrar shall approve the instruction at the Registered Depositary, concurrently with such reduction, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Rule 144A Global Note equal to the reduction in the principal amount of the Regulation S Global Note. (h) Owners of beneficial interests in the Global Notes will not be entitled to have Global Notes registered in their names, will not receive or be entitled to receive certificated Notes and will not be considered “Holders” of Notes under this Indenture or under the Notes unless (i) the Registered Depositary notifies the Trustee that it is unwilling or unable to continue as depository for the Global Notes or DTC, Euroclear or Clearstream ceases to be a “Clearing Agency” registered under the Exchange Act, and a successor depository or clearing agency is not appointed by the Trustee within 90 days after receiving such notice or (ii) as a result of any amendment to or change in the laws or regulations of Paraguay, or of any authority therein or thereof having power to tax, or in the interpretation or administration of such laws or regulations which become effective on or after the Closing Date, the Company, the Trustee or the Principal Paying Agent becomes aware that it is or will be required to make any deduction or withholding from any payment in respect of the Global Notes which would not be required if the Global Notes were not represented by a Global Note, in which event the Company will issue or cause to be issued securities in the form of certificated Notes in exchange for the applicable Global Notes to the beneficial owners of such Global Notes as follows: If a Holder of a beneficial interest in a Global Note exchanges such interest in a Global Note for one or more Certificated Notes as set forth above, such Noteholder may exchange or cause the exchange of such interest for an equivalent beneficial interest in one or more such certificated Notes as provided below. Upon receipt by the Note Registrar of (A) instructions from an Agent Member of the Registered Depositary, directing the Trustee to deliver one or more certificated Notes and (B) written instructions from such Noteholder designating the registered name or names, address and payment instructions of such Noteholder and the number and principal amounts of the applicable certificated Notes to be executed and delivered to such Noteholder (the aggregate principal amounts of such certificated Notes being the same as the beneficial interest in the Global Note to be exchanged), then the Note Registrar shall instruct the
45 Registered Depositary to reduce Global Note by the aggregate principal amount of the beneficial interest in the Global Note to be exchanged, shall record the exchange in the Note Register in accordance with Section 2.12(a) and authenticate and deliver one or more certificated Notes registered as specified in the instructions described in clause (B) above, in authorized denominations. (i) Certificated Note to Certificated Note. If a Holder of a certificated Note wishes at any time to transfer such certificated Note to another Person, such Noteholder may transfer, or cause the transfer of, such certificated Note as provided below. Upon receipt by the Note Registrar of (A) such Noteholder’s certificated Note properly endorsed for assignment to the transferee and (B) such certificates and other documents that the Trustee may require given by the proposed transferee, then the Note Registrar shall cancel such certificated Note in accordance with Section 2.17, record the transfer in the Note Register in accordance with Section 2.12(a) and, upon execution by the Company and receipt of a Company Order, authenticate and deliver one or more certificated Notes bearing the same designation as the certificated Notes endorsed for transfer, registered in the names specified in the assignment described in clause (A) above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the certificated Notes surrendered by the transferor), and in authorized denominations. (j) If Notes are issued upon the registration of transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the applicable legends set forth on the forms of Note attached hereto as Exhibit A-1 and Exhibit A-2 (collectively, the “Legend”), or if a request is made to remove such applicable legend on a Note, the Notes so issued shall bear such applicable legend, or such applicable legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an Opinion of Counsel acceptable to it, as may be reasonably required by the Company and the Note Registrar, as applicable (and which shall by its terms permit reliance by the Trustee), to the effect that neither such applicable legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the Securities Act or any other applicable law. Upon provision of such satisfactory evidence, the Trustee or the Authenticating Agent, at the written direction of the Company, shall, after due execution by the Company, authenticate and deliver a Note that does not bear such applicable legend. If a Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated by the Trustee at the written request of the Company. (k) Each Person who becomes a beneficial owner of Notes will be deemed, by its acceptance or purchase thereof, to have represented and agreed with the Company and the Trustee as follows: (i) it is purchasing the Notes for its own account or an account with respect to which it exercises sole investment discretion and it and any such account is either (a) a QIB and is aware that the sale to it is being made pursuant
46 to Rule 144A under the Securities Act or (b) a Non-U.S. person that is outside the United States; (ii) it acknowledges that the Notes have not been registered under the Securities Act or with any securities regulatory authority of any state and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. persons (as defined in Regulation S under the Securities Act) except as set forth below; (iii) it understands and agrees that Notes initially offered in the United States to QIBs will be represented by a Global Note and that Notes offered outside the United States pursuant to Regulation S will also be represented by a Global Note; (iv) it will not resell or otherwise transfer any of such notes except (a) to the Company or any of its Subsidiaries, (b) within the United States to a QIB in a transaction complying with Rule 144A under the Securities Act, (c) outside the United States in compliance with Rule 903 or 904 of Regulation S under the Securities Act, (d) pursuant to an exemption from registration under the Securities Act (if available) or (e) pursuant to an effective registration statement under the Securities Act, in each case in accordance with all applicable securities laws of the states of the United States and other jurisdictions; (v) either (i) it is neither an employee benefit plan subject to Title I of ERISA, an individual retirement account or other plan subject to Section 4975 of the Code (collectively, “Plans”) nor an employee benefit plan sponsored by a state or local government or otherwise subject to laws that include restrictions substantially similar to Section 406 of ERISA or Section 4975 of the Code (“similar laws”) and it is not purchasing or holding Notes on behalf of or with the assets of any Plan or plan subject to similar laws; or (ii) its purchase, holding and subsequent disposition of the Notes shall not constitute or give rise to a non- exempt prohibited transaction under Section 406 of ERISA, Section 4975 of the Code or any similar law; (vi) it agrees that it will give to each person to whom it transfers the Notes notice of any restrictions on transfer of such notes; (vii) it acknowledges that prior to any proposed transfer of Notes (other than pursuant to an effective registration statement) the Holder of such Notes may be required to provide certifications relating to the manner of such transfer as provided in this Section 2.12, including in respect of Notes sold or transferred pursuant to Rule 144A or Regulation S under the Securities Act; (viii) it acknowledges that the Trustee, Note Registrar or Transfer Agent for the Notes may not be required to accept for registration or transfer of any Notes acquired by it, except upon presentation of evidence satisfactory to the Company that the restrictions set forth herein have been complied with;
47 (ix) it acknowledges that the Company, the Initial Purchasers and other Persons will rely upon the truth and accuracy of the foregoing acknowledgements, representations and agreements and agrees that if any of the acknowledgements, representations and agreements deemed to have been made by its purchase of the Notes are no longer accurate, it will promptly notify the Company and the Initial Purchasers; and (x) if it is acquiring the Notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of each account. (l) The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a participant in, the Registered Depository or other Person with respect to the accuracy of the records of the Registered Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Registered Depository) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Global Notes. All notices and communications to be given to the Noteholders and all payments to be made to Noteholders in respect of the Notes shall be given or made only to or upon the order of the registered Noteholders (which shall be the Registered Depository or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Registered Depository subject to the applicable rules and procedures of the Registered Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Registered Depository with respect to its members, participants and any beneficial owners. (m) None of the Trustee or the Note Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among participants in the Registered Depositary or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. (n) If any U.S. Person (as defined in Regulations under the Securities Act) that is not a QIB and shall become the owner of a beneficial interest in a Rule 144A Global Note, or if any U.S. Person shall become the owner of a beneficial interest in a Regulation S Global Note (any such Person, a “Non-Permitted Holder”), the Company may, promptly after discovery by the Company that such Person is a Non-Permitted Holder, send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that is not a Non-Permitted Holder within 30 days of the date of such notice. If such Non-Permitted Holder fails to so sell its interest, the
48 Company shall have the right, without further notice to the Non-Permitted Holder, to (i) sell such interest in a commercially reasonable sale to a purchaser selected by the Company that is not a Non-Permitted Holder and that certifies to the Company that it meets the requirements of this Indenture or (ii) to redeem such interest for an amount equal to the outstanding principal of the Notes plus accrued and unpaid interest. The Holder of each Note, the Non-Permitted Holder and each other Person in the chain of title from the Holder to the Non-Permitted Holder, by their acceptance of an interest in the Notes, agree to cooperate with the Company to effect such transfers. The proceeds of such sale or redemption, net of any commissions, expenses and taxes due in connection with such sale or redemption, shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale or redemption under this subsection shall be determined in the sole discretion of the Company, and the Company shall not be liable to any Person having an interest in the Notes sold or redeemed as a result of any such sale or redemption or the exercise of such discretion. Section 2.13. Mutilated, Destroyed, Lost and Stolen Notes. (a) If any certificated Note becomes mutilated, defaced, destroyed, lost or stolen, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver in exchange therefor (upon surrender and cancellation thereof) a new certificated Note of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner and dated the date of its authentication and bearing a number not contemporaneously outstanding. In case such certificated Note is destroyed, lost or stolen, the applicant for a substituted certificated Note will furnish to the Company, the Trustee, the Paying Agent and the Note Registrar, as applicable, such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and, in every case of destruction, loss or theft of the Note, the applicant will also furnish to the Company satisfactory evidence of the destruction, loss or theft of such certificated Note, as the case may be, and of the ownership thereof. Upon the issuance of any such certificated Note, the Company, the Trustee, the Paying Agent and the Note Registrar, as applicable, may require the payment by the registered Holder thereof of a sum sufficient to cover fees and expenses connected therewith. (b) In case any such mutilated, destroyed, lost or stolen certificated Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. (c) Every new Note issued pursuant to this Section 2.13 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder. (d) The provisions of this Section 2.13 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
49 Section 2.14. Payment of Interest; Interest Rights Preserved. (a) Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Record Date for such Interest Payment Date. (b) Any interest on any Note which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Noteholder on the relevant Record Date by virtue of having been such Noteholder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special Record Date (the “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 mailed, first-class postage prepaid, to each Noteholder at his address as it appears in the Note Register, 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 mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii). (ii) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any Notes exchange on which the Notes may be listed, and upon such notice as may be required by such exchange, 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.
50 Subject to the foregoing provisions of this Section 2.14, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. Section 2.15. Taxation. (a) All payments by or at the direction of the Company of or in respect of principal, premium, if any, and interest on the Notes shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, levies, imposts or charges of whatsoever nature (collectively, “Taxes”) imposed, levied, collected, withheld or assessed by, within or on behalf of Paraguay or any political subdivisions or taxing authority thereof or therein or imposed by or for account of any other jurisdiction in which the Company is doing business or from or through which payment is made or deemed made by or on behalf of the Company (including the jurisdiction of any paying agent for the Notes) or any political subdivision thereof or therein (a “Relevant Taxing Jurisdiction”), unless such withholding or deduction is required by law. In that event, the Company shall pay such additional amounts (“Additional Amounts”) as may be necessary in order that the net amounts received by the Noteholders or the Trustee, as the case may be, after such deduction or withholding shall equal the respective amounts of principal (and premium, if any) and interest that would have been receivable in respect of the Notes in the case of the Noteholders, or pursuant to Section 7.05, in the case of the Trustee, in the absence of such withholding or deduction. The Company will not, however, be required to make any payment of Additional Amounts for or on account of (“Excluded Additional Amounts”): (i) any tax or governmental charge which would not be payable but for the fact that the Holder or beneficial owner of a Note is a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, Paraguay or such political subdivision or otherwise having some connection with Paraguay or such political subdivision other than the holding or ownership of such Notes or the collection of principal of (and premium, if any) and interest on such Notes or the enforcement of such Notes; (ii) any tax or other governmental charge that would not have been imposed but for the presentation of a Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (iii) any tax or other governmental charge that would not have been imposed but for a failure of the Holder or beneficial owner of the Note to comply with any applicable certification, information, identification, documentation or other reporting requirements concerning the nationality, residence, identity or connection with Paraguay or any political subdivision thereof if such compliance is required as a precondition to relief or exemption from such tax or other governmental charge (including without limitation a certification that such Noteholder or beneficial owner is not resident in Paraguay or any political
51 subdivision thereof) to which it is entitled; provided, however, that this clause (iii) shall not apply (x) if the certification, information, identification, documentation or other reporting requirements would be materially more onerous in form, procedure or substance of information disclosed that comparable information or other reporting requirements under U.S. tax law, regulation and administrative practice, or (y) if the Company shall not have provided the Noteholder with written notice of the applicable requirement at least 60 days prior to the date that the Noteholder is required to comply with such applicable requirement; (iv) any estate, inheritance, gift, sales, excise, transfer or personal property tax; (v) any withholding or deduction imposed on or in respect of Section 1471 through 1474 of the Internal Revenue Code of 1986, as amended (“FATCA”), any current or future regulations or official interpretations thereof, any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the laws of any Relevant Taxing Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code; or (vi) any combination of the above. (b) In addition, the Company shall not have any obligation to pay additional amounts to a Noteholder that is a fiduciary or partnership or an entity that is not the sole beneficial owner of the payment of the principal or interest on a Note if the laws of Paraguay or any political subdivision thereof require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had it been the Holder of such Note. (c) At least 10 Business Days prior to the first Interest Payment Date for the Notes, and, if there has been any change with respect to the matters set forth in the below- mentioned certificate at least 10 Business Days prior to each Interest Payment Date for the Notes, the Company shall furnish to the Trustee an Officer’s Certificate instructing the Trustee as to any circumstances in which payments of principal of or interest on the Notes due on such date shall be subject to deduction or withholding for or on account of any Taxes and the rate of any such deduction or withholding and shall certify that such deduction or withholding amount shall or shall have been paid to the appropriate taxing authority. The Company covenants to indemnify the Trustee and any other Paying Agents for, and to hold each harmless against, any loss, liability or expense reasonably incurred without negligence or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Company under the preceding sentence shall survive the resignation or removal of the Trustee, the Registrar or any Paying Agent. Upon
52 written request from the Trustee, the Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Taxes in respect of which the Company has paid any Additional Amounts. Copies of such documentation shall be made available by the Trustee to the Noteholders or the other Paying Agents, as applicable, upon written request therefor. (d) The Company acknowledges that the Trustee and the Principal Paying Agent make no representations as to the interpretation or characterization of the transactions herein undertaken for tax or any other purpose, in any jurisdiction. The Company represents that it has fully satisfied itself as to any tax impact of this Indenture before agreeing to the terms herein, and is responsible for any and all federal, state, local, income, franchise, withholding, value added, sales, use, transfer, stamp or other taxes imposed by any jurisdiction in respect of this Indenture to the extent provided herein. The Company agrees to pay any and all stamp and other documentary taxes or duties which may be payable in connection with the execution, delivery, performance and enforcement of this Indenture by the Trustee or the Principal Paying Agent. Section 2.16. Persons Deemed Owners; Etc. Subject to Section 2.12, prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 2.17. Cancellation. All Notes surrendered for payment, redemption, registration of transfer, exchange, or pursuant to any Offer to Purchase pursuant to Section 4.09 or deemed lost or stolen shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation and may not be reissued or sold. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever. All Notes so delivered shall be promptly cancelled by the Trustee. For the avoidance of doubt, any Notes that are purchased by the Company in the open market or otherwise may be cancelled, held or resold by the Company as it may determine, provided that any such resales are conducted in compliance with all applicable securities laws. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.17, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in accordance with its standard policy, unless the Company shall direct by a Company Order that they be returned to it. Section 2.18. CUSIP and ISIN Numbers. The Company in issuing the Notes may use CUSIP and ISIN numbers (if then generally in use), and, if so, the Trustee shall use CUSIP and ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or exchange and that reliance may be
53 placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall cause each CUSIP number obtained for a Rule 144A Global Note to have an attached fixed field that contains a “3c7” and “144A” indicator and will promptly notify the Trustee in writing of any initial CUSIP and/or ISIN numbers and any change in the CUSIP or ISIN numbers. Section 2.19. Noteholder Lists. The Trustee shall preserve in as current form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders. If the Trustee is not the Note Registrar, the Company shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Noteholders. ARTICLE 3 RESERVED ARTICLE 4 REDEMPTION Section 4.01. Tax Redemption. (a) The Company may redeem the Notes, in whole, but not in part, in accordance with this Section 4.01 (the “Early Tax Redemption”), at its option, at 100% of the Outstanding principal amount thereof, plus accrued and unpaid interest to the date of redemption and any Additional Amounts payable with respect thereto, if: (i) as a result of a change in law (or any rules or regulations thereunder) or treaties of any Relevant Taxing Jurisdiction, or any amendment to or change in an official interpretation or application of such laws, rules or regulations (including a decision of a court of competent jurisdiction) (a “Change in Law”) of any Relevant Taxing Jurisdiction, the Company has or will become obligated to pay Additional Amounts in excess of the Additional Amounts (“Excess Additional Amounts”) that the Company would pay if payments in respect of the Notes were subject to deduction or withholding for (A) if the Relevant Taxing Jurisdiction is Paraguay, Paraguayan withholding taxes at a rate of (1) 6% on interest payments, to the extent the Non-Paraguayan Holder (as defined herein) is a “foreign bank, financial or other recognized credit institution” (entidades bancarias o financieras o otras instituciones de crédito de reconocida trayectoria en el mercado financiero) (as each of these terms are defined under Paraguayan law), or (2) 15% on interest payments in all other cases, and (B) in the case of Relevant Taxing Jurisdictions other than Paraguay, 0% on interest payments in all other cases, and determined, in the case of either (A) or (B) above, without regard to any interest, fees, penalties or other additions to tax; and (ii) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided, however, that for this purpose
54 reasonable measures shall not include any change in the Company’s jurisdiction of organization or the location of its principal executive office, or the Incurrence of material out of pocket costs by it or its Affiliates. No such notice of redemption will be given earlier than 90 or later than 30 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts if a payment in respect of the Notes were then due. (b) Prior to the publication or mailing of any notice of redemption of the Notes pursuant to this Section 4.01, the Company shall deliver to the Trustee: (i) an Officer’s Certificate, stating that the Company is entitled to effect such a redemption pursuant to this Indenture; and (ii) an Opinion of Counsel stating, in addition to the requirements of Section 13.01, that the Company has or will become obligated to pay Excess Additional Amounts due to a Change in Law. The Trustee shall accept such certificate and opinion as sufficient evidence of the satisfaction of the circumstances, as the case may be, set out in Section 4.01(a)(i) or (ii) above, in which event it shall be conclusive and binding on the Noteholders. (c) In the event the Company determines to redeem the Notes as permitted hereunder, the Company shall be required to specify in its notice the proposed date of redemption (the “Early Tax Redemption Date”) and, pursuant to Section 4.05, shall pay to the Trustee (on behalf of the Noteholders) on the Business Day immediately preceding the Early Tax Redemption Date an amount equal to the sum of (i) the aggregate principal amount of the Notes that are then Outstanding, (ii) all accrued but unpaid interest on the Notes at the Note Rate through and excluding the Early Tax Redemption Date and (iii) all other amounts then due on the Notes as provided in this Indenture or the Notes (collectively, the “Early Tax Redemption Price”). The Notes shall not be deemed repaid and cancelled unless and until the Trustee shall have received the Early Tax Redemption Price. Section 4.02. Optional Redemption. (a) At any time and from time to time prior to April 15, 2022, the Company, at its option, may redeem the Notes, in whole or in part, upon the giving of notice as provided in Section 4.04, at a redemption price equal to the greater of the following: (i) 100% of the principal amount of the Notes to be redeemed; and (ii) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the redemption date) discounted to that redemption date on a semi-annual basis (assuming a 360 day year consisting of twelve 30 day months) at the Treasury Rate plus 50 basis points;
55 plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the date of redemption and any additional amounts payable in respect of such interest. (b) At any time and from time to time on or after April 15, 2022, the Company may redeem the Notes, in whole or in part, at a redemption price equal to the percentage of principal amount set forth below plus accrued and unpaid interest to the redemption date: 12 month period commencing in year Percentage April 15, 2022 102.938% April 15, 2023 101.469% April 15, 2024 and thereafter 100.000% Section 4.03. Optional Redemption upon Equity Offerings of the Company. At any time and from time to time in each case prior to April 15, 2022, the Company may on any one or more occasions redeem up to an aggregate amount of 40% of the original aggregate principal amount of Notes at a redemption price of 105.875% of their principal amount, plus accrued and unpaid interest, if any, to the redemption date (subject to the right of the Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), with the proceeds from one or more Equity Offerings or any sale of Qualified Capital Stock of any Subsidiary of the Company. The Company may only do this, however, if at least 50% of the aggregate principal amount of Notes that were initially issued under this Indenture would remain Outstanding immediately after the proposed redemption. Any notice for such a redemption may be given prior to completing the Equity Offering or sale of Qualified Capital Stock. Section 4.04. Method and Effect of Redemption. (a) Notice of redemption contemplated by Sections 4.01, 4.02, 4.03 and Section 4.10 shall be given by the Company by first-class mail, postage prepaid, mailed not less than 10 nor more than 60 days prior to the proposed Optional Redemption Date or the proposed Early Tax Redemption Date, as the case may be, to each Noteholder, at its address appearing in the Note Register. A notice of redemption may, at the Company’s discretion, be subject to satisfaction of one or more conditions precedent. All notices of redemption shall state: (i) the proposed date of redemption; (ii) the applicable redemption price; (iii) whether the redemption is being made pursuant to Section 4.01, 4.02, 4.03 or Section 4.10 and, if being made pursuant to Section 4.01, a brief statement setting forth the Company’s right to effect such redemption and the Company’s basis therefor;
56 (iv) if less than all of the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any Notes, the principal amounts) of the particular Notes to be redeemed; (v) that, on the redemption date the redemption price will become due and payable upon each such Note to be redeemed and that interest thereon shall cease to accrue from and after said date; (vi) the place or places where such Notes are to be surrendered for payment of the redemption price; (vii) that in the case that a Note is only redeemed in part, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder of such Note, without service charge, a new Note or Notes in an aggregate amount equal to the unredeemed portion of the Note; (viii) the aggregate principal amount of Notes being redeemed; and (ix) the CUSIP number or numbers of the Notes being redeemed. (b) The Company will cause a copy of such notice to be published in a daily newspaper with general circulation in New York City (which is expected to be the Wall Street Journal), London (which is expected to be the Financial Times) and, for so long as the Notes are listed on the Luxembourg Stock Exchange, Luxembourg (which is expected to be the Luxemburger Wort). (c) If either (i) the Company is not redeeming all Outstanding Notes, or (ii) the Company elects to have the Trustee give notice of redemption, then the Company shall deliver to the Trustee, at least 10 days prior to the date on which such notice (in either case (i) or (ii)) is to be given to the Noteholders (unless the Trustee agrees to a shorter period), an Officer’s Certificate requesting that the Trustee select the Notes to be redeemed in accordance with Section 4.07(a) below and/or give notice of redemption and setting forth the information required by paragraph (a) of this Section 4.04 (with the exception of the identification of the particular Notes, or portions of the particular Notes, to be redeemed in case of a partial redemption). If the Company elects to have the Trustee give notice of redemption, the Trustee shall give notice in the name of the Company and at the Company’s expense. (d) Except pursuant to Sections 4.01, 4.02, 4.03 and Section 4.10 hereof, the Notes are not redeemable at the Company’s option. The Company is not, however, prohibited from acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not otherwise violate the terms of this Indenture. In each case set forth in Sections 4.01, 4.02, 4.03 and Section 4.10, the Company may make any Optional Redemption or Early Tax Redemption or notice of redemption subject to the satisfaction of conditions precedent. If such Optional Redemption or Early Tax Redemption or notice of redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Company’s discretion, the Optional Redemption Date or Early Tax Redemption Date, as
57 the case may be, may be delayed until such time (but no more than 60 days after the date of the notice of redemption) as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Optional Redemption Date or Early Tax Redemption Date, as the case may be, or by the Optional Redemption Date or Early Tax Redemption Date so delayed, as the case may be. In addition, the Company may provide in such notice that payment of the Optional Redemption Price or Early Tax Redemption Price, as the case may be, and performance of the Company’s obligations with respect to such redemption may be performed by another Person. If an Optional Redemption Date or Early Tax Redemption Date, as the case may be, is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue on any amount that would have been otherwise payable on such redemption date if it were a Business Day for the intervening period. If the Optional Redemption Date or Early Tax Redemption Date, as the case may be, is on or after an interest Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the Person in whose name the Note is registered at the close of business on such Record Date and no additional interest will be payable to Holders whose Notes will be subject to redemption. Section 4.05. Deposit of Redemption Price. On or before 10:00 a.m. at least one Business Day prior to any Optional Redemption Date or Early Tax Redemption Date, as the case may be, 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) an amount of money sufficient to pay the Optional Redemption Price or the Early Tax Redemption Price, as applicable, of and (except if the date of redemption shall be an Interest Payment Date) accrued interest on all the Notes which are to be redeemed on that date. Section 4.06. Notes Payable on Redemption Date. Notice of Optional Redemption or Early Tax Redemption having been given as aforesaid, the Notes to be redeemed shall, on the Optional Redemption Date or the Early Tax Redemption Date, as the case may be, become due and payable at the Optional Redemption Price or the Early Tax Redemption Price, as applicable, therein specified and on and after such date (unless the Company shall default in the payment of the Optional Redemption Price or the Early Tax Redemption Price, as applicable) such Notes shall cease to bear interest. Upon surrender of such Notes for redemption in accordance with the notice, such Notes shall be paid by the Company at the Optional Redemption Price or the Early Tax Redemption Price, as applicable. Installments of interest maturing on or prior to the Optional Redemption Date or Early Tax Redemption Date, as the case may be, shall continue to be payable (but without interest thereon, unless the Company shall default in the payment thereof) to the Noteholders registered as such on the relevant Record Dates. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Optional Redemption Date or the Early Tax Redemption Date, as applicable, at the Note Rate. Section 4.07. Selection by Trustee of Notes to be Redeemed.
58 (a) If fewer than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the redemption date by the Trustee pro rata, by lot or by such method as the Trustee shall deem fair and appropriate (or, in the case of Global Notes, based on a method as DTC may require) and which may provide for the selection for redemption of portions (equal to $1,000 or any integral multiple thereof) of the principal amount of Notes of a denomination larger than $1,000. (b) The Trustee shall promptly notify the Company and each Note Registrar in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed. (c) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed. Section 4.08. Notes Redeemed in Part. Any Note which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 5.01 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Noteholder or his attorney duly authorized in writing), and the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder without service charge, a new Note or Notes, of any authorized denomination as requested by such Noteholder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered. Section 4.09. Offer to Purchase. (a) In the event that, pursuant to Section 5.22 or Section 5.10 hereof, as the case may be, the Company or its Restricted Subsidiaries, as applicable, (each a “Purchasing Party”) is required to commence an offer to all Noteholders to purchase Notes either due to a Change of Control Triggering Event or an Asset Disposition, respectively, as applicable, (an “Offer to Purchase”) such Purchasing Party will follow the procedures specified in this Section 4.09. (b) A written offer (the “Offer”) shall be made to all Noteholders and sent by the Purchasing Party by first class mail, postage prepaid, to each Holder at his address appearing in the Note Register on the date of the Offer offering to purchase up to the principal amount of Notes specified in such Offer at the purchase price specified in such Offer (as determined pursuant to this Indenture). Unless otherwise required by applicable law, the Offer shall specify an expiration date (the “Expiration Date”) of the Offer to Purchase which shall be, subject to any contrary requirements of applicable law, not less than 30 days or more than 60 days after the date of such Offer and a settlement date (the “Purchase Date”) for purchase of Notes within five Business Days after the Expiration Date. The Purchasing Party shall notify the Trustee at least 15 Business Days (or such shorter period as is acceptable to the Trustee) prior to the mailing of the Offer of the
59 Purchasing Party’s obligation to make an Offer to Purchase, and the Offer shall be mailed by the Purchasing Party or, at the Purchasing Party’s request, by the Trustee in the name and at the expense of the Purchasing Party. The Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also state: (i) the Section of this Indenture pursuant to which the Offer to Purchase is being made; (ii) the Expiration Date and the Purchase Date; (iii) the aggregate principal amount of the Outstanding Notes offered to be purchased by the Company pursuant to the Offer to Purchase (including, , if less than 100%, the manner by which such has been determined) (the “Purchase Amount”); (iv) the purchase price to be paid by the Company, as set forth in Section 5.10, as applicable, to be paid by the Company for each $1,000 aggregate principal amount of Notes accepted for payment (the “Purchase Price”); (v) that the Holder may tender all or any portion of the Notes registered in the name of such Holder and that any portion of a Note tendered must be tendered in minimum amounts of $200,000 and integral multiples of $1,000 in excess thereof; (vi) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase; (vii) that interest on any Note not tendered or tendered but not purchased by the Purchasing Party pursuant to the Offer to Purchase will continue to accrue; (viii) that on the Purchase Date the Purchase Price will become due and payable upon each Note being accepted for payment pursuant to the Offer to Purchase and that interest thereon shall cease to accrue on and after the Purchase Date; (ix) that each Holder electing to tender a Note pursuant to the Offer to Purchase will be required to surrender such Note at the place or places specified in the Offer prior to the close of business on the Expiration Date (such Note being, if the Company or the Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing); (x) that Holders will be entitled to withdraw all or any portion of Notes tendered if the Company (or their paying agent) receives, not later than the close of business on the Expiration Date, a telegram, telex, facsimile transmission
60 or letter setting forth the name of the Holder, the principal amount of the Note the Holder tendered, the certificate number of the Security the Holder tendered and a statement that such Holder is withdrawing all or a portion of his tender; (xi) that (A) if Notes in an aggregate principal amount less than or equal to the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase all such Notes and (B) if Notes in an aggregate principal amount in excess of the Purchase Amount are tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase Notes having an aggregate principal amount equal to the Purchase Amount on a pro rata basis (with such adjustments as may be deemed appropriate so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased and provided that Notes of $200,000 or less may only be redeemed in whole and not in part); and (xii) that in the case of any Noteholder whose Note is purchased only in part, the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Noteholder, in an aggregate principal amount equal to and in exchange for the unpurchased portion of the Note so tendered. (c) Any Offer to Purchase shall be governed by and effected in accordance with the Offer for such Offer to Purchase. (d) The Company will publish notices relating to the Offer to Purchase in a leading newspaper having a general circulation in New York City (which is expected to be the Wall Street Journal), London (which is expected to be the Financial Times) and, for so long as any Notes are listed on the Luxembourg Stock Exchange, Luxembourg (which is expected to be the Luxemburger Wort). (e) The Company and the Trustee shall perform their respective obligations specified in the Offer. Prior to the Purchase Date, the Purchasing Party shall (i) accept for payment Notes or portions thereof tendered pursuant to the Offer to Purchase, (ii) deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) money sufficient to pay the purchase price of all Notes or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee all Notes so accepted together with an Officer’s Certificate stating the Notes or portions thereof accepted for payment by the Purchasing Party. The Paying Agent shall promptly mail or deliver to Noteholders so accepted payment in an amount equal to the purchase price, and upon receipt of a Company Order, the Trustee shall promptly authenticate and mail or deliver to such Noteholders a new Note or Notes equal in principal amount to any unpurchased portion of the Note surrendered as requested by the Noteholder. Any Note not accepted for payment shall be promptly mailed or delivered by the Purchasing Party to the Noteholder. The Purchasing Party shall publicly announce the results of the Offer to Purchase on or as soon as practicable after the Purchase Date.
61 (f) In the event that the Company makes an Offer to Purchase the Notes, the Company will comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations, including the requirements of any applicable securities exchange on which Notes are then listed. Section 4.10. Optional Redemption upon Certain Tender Offers. In connection with any tender offer or other offer to purchase for all of the Notes, if Holders of not less than 90% of the aggregate principal amount of the then Outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 days’ notice following such purchase date, to redeem all Notes that remain Outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer, plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, such Optional Redemption Date. ARTICLE 5 COVENANTS OF THE COMPANY For so long as the Notes remain Outstanding or any amount remains unpaid on such Notes under this Indenture, the Company will comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Indenture as provided herein). Section 5.01. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to and demands upon the Company in respect of this Indenture and the Notes may be served. Initially this office will be at the Corporate Trust Office and the Company will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location. If at any time the Company shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address thereof, all presentations, surrenders, notices and demands may be 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. Section 5.02. Notice of Defaults and Events of Default. The Company will give notice to the Trustee promptly (but not later than thirty (30) days) after the Company becomes aware of the occurrence of any Default or any Event of Default, accompanied by an Officer’s Certificate of the Company setting forth the details thereof and stating what action the Company proposes to take with respect thereto. Section 5.03. Compliance Certificates. The Company shall deliver to the Trustee within 120 days after the end of each Fiscal Year of the Company an Officers’ Certificate signed by its principal executive officer, the principal financial officer or the principal accounting officer stating that in the course of the performance by the signers of their duties as Officers of the Company they would normally have knowledge of any
62 Default or Event of Default and whether or not the signers know of any Default or Event of Default that occurred during such period. If they do, the certificate shall describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. Section 5.04. Limitation on Debt. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, Incur any Debt, unless the Leverage Ratio for the most recently completed fiscal quarter for which financial statements are available would be less than 4.0 to 1. (b) Notwithstanding the foregoing limitation, the following Debt (“Permitted Debt”) may be Incurred: (i) any direct or indirect obligations owed in connection with the payment obligations on the Notes; (ii) Debt (other than Debt described in another clause of this Section 5.04) outstanding, committed or mandated on the date of this Indenture; (iii) Pari Passu Debt of the Company and Debt of its Subsidiaries under Credit Facilities and any Permitted Refinancing Debt in respect thereof, in an aggregate principal amount at any one time outstanding that does not exceed an amount equal to the greater of (a) $50 million (or the U.S. Dollar Equivalent of any other currency) and (b) 6.0% of Total Assets, plus, (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the case of any refinancing of Debt permitted under this clause (iii) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing; (iv) Debt owed by the Company to any of its Restricted Subsidiaries or Debt owed by any of the Restricted Subsidiaries to the Company or any other of the Restricted Subsidiaries; provided, however, that upon either (1) the transfer or other disposition by the Company or such Restricted Subsidiary of any Debt so permitted to a Person other than the Company or any of its Restricted Subsidiaries or (2) such Restricted Subsidiary ceasing to be the Company’s Restricted Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition; (v) Acquired Debt; (vi) Minority Shareholder Loans; provided that such Debt is subordinated in right of payment to the Notes; (vii) Permitted Refinancing Debt of the Company or any Restricted Subsidiary Incurred in exchange for or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each
63 case, successive refinancings, extensions and renewals), Debt of the Company or any Restricted Subsidiary Incurred pursuant to Section 5.04(a) and clauses (i), (ii), (v), and this clause (vii), as the case may be; (viii) Debt of the Company or any Restricted Subsidiary represented by letters of credit in order to provide security for workers’ compensation claims, health, disability or other employee benefits, payment obligations in connection with self- insurance or similar requirements of the Company or any Restricted Subsidiary in the ordinary course of business; (ix) customary indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with the disposition of any assets of the Company or any Restricted Subsidiary, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such Incurrence of such Debt will at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with the related disposition; (x) obligations in respect of (a) customs, VAT or other tax guarantees, (b) bid, performance, completion, guarantee, surety and similar bonds, including Guarantees or obligations of the Company or any Restricted Subsidiary with respect to letters of credit supporting such obligations and (c) the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt for borrowed money; (xi) Debt of the Company or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; provided that such Debt is extinguished within five Business Days of Incurrence; (xii) guarantees by the Company or any Restricted Subsidiary of Debt or any other obligation or liability of the Company or any Restricted Subsidiary (other than of any Debt Incurred in violation of this covenant); provided, however, that if the Debt being guaranteed is subordinated in right of payment to the Notes or any Guarantee of the Notes, then such guarantee shall be subordinated substantially to the same extent as the relevant Debt guaranteed; (xiii) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to the Company or any Restricted Subsidiary in connection with the issuance of notes or other similar debt securities intended to be supported primarily by the payment obligations of the Company or any Subsidiary in connection with any vendor financing platform;
64 (xiv) Debt consisting of Interest Rate, Currency or Commodity Price Agreements; (xv) Debt consisting of (a) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company or a Restricted Subsidiary or (b) Debt otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Permitted Refinancing Debt in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Debt Incurred pursuant to this clause (xv) will not exceed the greater of (1) $20.0 million and (2) 2.0% of Total Assets at any time outstanding; (xvi) Intergroup Subordinated Loans; and (xvii) Debt not otherwise permitted to be Incurred pursuant to clauses (i) through (xvi) above, which, together with any other outstanding Debt Incurred pursuant to this clause (xvii), including any Permitted Refinancing Debt in respect thereof, has an aggregate principal amount at any time outstanding not in excess of the greater of $75 million and 8.0% of Total Assets, plus, in the case of any refinancing of Debt permitted under this clause (xvii) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing. (c) The Company will not incur any Debt (including Permitted Debt) that is contractually subordinated in right of payment to any other Debt of the Company unless such Debt is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Debt will be deemed to be contractually subordinated in right of payment to any other Debt of the Company solely by virtue of being unsecured or by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the application of waterfall or other payment ordering provisions affecting different tranches of Debt. (d) For the purposes of determining compliance with this covenant, in the event that an item of Debt meets the criteria of more than one of the types of Permitted Debt or is entitled to be Incurred pursuant to the first sentence of Section 5.04(a) the Company in its sole discretion may classify and from time to time reclassify such item of Debt or any portion thereof and only be required to include the amount of such Debt as one of such types.
65 (e) For the purposes of determining compliance with any covenant in this Indenture or whether an Event of Default has occurred, in each case, where Debt is denominated in a currency other than U.S. Dollars, the amount of such Debt will be the U.S. Dollar Equivalent determined on the date of such Incurrence; provided, however, that if any such Debt that is denominated in a different currency is subject to an Interest Rate, Currency or Commodity Price Agreement with respect to U.S. Dollars covering principal and premium, if any, payable on such Debt, the amount of such Debt expressed in U.S. Dollars will be adjusted to take into account the effect of such an agreement. Section 5.05. Limitation on Restricted Payments. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any distribution in respect of the Company’s Capital Stock, excluding any dividends or distributions by the Company payable solely in shares of the Company’s Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire the Company’s Capital Stock (other than Redeemable Stock); (ii) purchase, redeem, or otherwise acquire or retire for value (A) any of the Company’s or Restricted Subsidiary’s Capital Stock or (B) any options, warrants or other rights to acquire shares of the Company’s or Restricted Subsidiary’s Capital Stock (in respect of (A) and (B) above, in each case, other than (x) from the Company or any of its Restricted Subsidiaries and (y) any such acquisition of the shares or rights to acquire shares of a Restricted Subsidiary by the Company or another Restricted Subsidiary); (iii) redeem, repurchase, defease or otherwise acquire or retire for value prior to any scheduled maturity, repayment or sinking fund payment the Company’s Debt which is subordinate in right of payment to the Notes (other than any direct or indirect obligations by the Company for the sole purpose of effectuating payments on the Notes); or (iv) make any Investment, other than Permitted Investments; (each of clauses (i) through (iv) being a “Restricted Payment”) if: (A) a Default or an Event of Default shall have occurred and is continuing or would result from such Restricted Payment; or (B) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter period, the Company could not Incur at least $1.00 of additional Debt pursuant to Section 5.04(a); or (C) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from the date of this Indenture
66 excluding those made pursuant to the further proviso below exceeds the sum of: (1) the difference of (x) 100% of cumulative Consolidated EBITDA from January 1, 2017 through the last day of the last full fiscal quarter ended immediately prior to the date of such Restricted Payment for which the Company’s quarterly or annual financial statements are available minus (y) the product of 1.5 times cumulative Consolidated Interest Expense from January 1, 2017 through the last day of the last full fiscal quarter ended immediately prior to such Restricted Payment for which the Company’s quarterly or annual fiscal statements are available; plus (2) the net reduction in Company’s Investments in any Unrestricted Subsidiary resulting from payments of interest on Debt, dividends, return of capital, repayments of loans or advances, payment of fees or other transfers of assets, in each case to the Company or any of its Restricted Subsidiaries from such Unrestricted Subsidiary (except to the extent that any such payment is included in the calculation of Consolidated EBITDA) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries; provided that the amount included in this clause (2) shall not exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary; plus (3) the cash return, after the Issue Date, on any other Investment made after the Issue Date pursuant to this paragraph, as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Consolidated EBITDA), not to exceed the amount of such Investment so made; plus (4) an amount not to exceed the sum of the aggregate net proceeds received by the Company after the date of this Indenture, including the fair market value of property other than cash (determined in good faith by the Company’s Board of Directors as evidenced by a resolution of the Board of Directors filed with the Trustee), from contributions of capital or the issuance and sale (other than to any of the Company’s Restricted Subsidiaries) of the Company’s Capital Stock (other than Redeemable Stock or Excluded Contributions), options, warrants or other rights to acquire the Company’s Capital Stock (other than Redeemable Stock) or the Company’s Debt or Debt of any of its Restricted Subsidiaries that has been converted into or exchanged for the Company’s Capital Stock (other than
67 Redeemable Stock and other than by or from any of the Company’s Restricted Subsidiaries) after the date of this Indenture; provided that any such net proceeds received by the Company from an employee stock ownership plan financed by loans from the Company or any of its Subsidiaries shall be included only to the extent such loans have been repaid with cash on or prior to the date of determination; minus (5) any Company or its Restricted Subsidiaries’ deposits withdrawn and acquired by the depositary institution (and not returned to the Company or one of its Restricted Subsidiaries) as the result of any netting or set-off arrangement entered into by the Company or any of its Restricted Subsidiaries (except to the extent such deposits are used to satisfy obligations solely of the Company or its Restricted Subsidiaries). (b) Prior to the making of any Restricted Payment (other than with respect to an Investment in an amount not to exceed $5 million) the Company shall deliver to the Trustee an Officer’s Certificate setting forth the computations by which the determination required by clauses (B) and (C) above were made and stating that no Default or Event of Default has occurred and is continuing or would result from such Restricted Payment. (c) Notwithstanding the foregoing, (i) the Company may pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such dividend in accordance with the foregoing provision; (ii) the Company and any of the Restricted Subsidiaries may refinance any Debt as permitted by Section 5.04 in exchange for or out of the net proceeds of the sale of (other than from or to any of the Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from the Company or any of the Restricted Subsidiaries) shares of the Company’s Capital Stock (other than Redeemable Stock) or the subordinated obligations of the Company or any Restricted Subsidiary permitted to be Incurred pursuant to Section 5.04 and that, in each case, constitutes Permitted Refinancing Debt; provided, however, that such exchange or repurchase must be made within 90 days of the issuance of Capital Stock or such subordinated obligations; (iii) the Company and any of the Restricted Subsidiaries may purchase, redeem, acquire or retire any shares of its Capital Stock solely in exchange for or out of the net proceeds of (A) the substantially concurrent sale (other than from or to any of the Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from the Company or any of the Restricted Subsidiaries) of shares of the Company’s Capital Stock (other than Redeemable Stock), (B) an Asset Disposition to the extent of Excess Proceeds of an Asset Disposition or (C)
68 a Sale/Leaseback Transaction of Tower Equipment that would have been an Asset Disposition but for the proviso in clause (a) of the Asset Disposition definition, provided that the Company makes an Offer to Purchase Outstanding Notes prior to reliance on this provision at 100% of the principal amount plus accrued interest to the date of purchase and then to the extent of such Excess Proceeds of an Asset Disposition; (iv) the Company and any of the Restricted Subsidiaries may make loans to employees in connection with such employees’ exercise of options to purchase Capital Stock or otherwise in the ordinary course of business; (v) Restricted Payments that are made with Excluded Contributions; (vi) the Company and any of its Restricted Subsidiaries may repurchase or fund the repurchase of shares of the Company or Millicom held by employees or former employees of the Company or any Restricted Subsidiary in an amount not to exceed $5 million in any twelve month period; (vii) the Company and any of its Restricted Subsidiaries may cause a distribution of shares of any Unrestricted Subsidiary; (viii) the Company or any Restricted Subsidiary may pay a Dividend on Capital Stock of any class with the proceeds of any public Equity Offering or any public sale of Qualified Capital Stock of the Company in an amount not to exceed 6% of the Market Capitalization of the Company at the time of such public Equity Offering or public sale of Qualified Capital Stock if after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter period the Company could Incur at least $1.00 of additional Debt pursuant to Section 5.04(a); (ix) the Company and any Restricted Subsidiary may make Restricted Payments, including the purchase of Receivables and the payment of fees, in connection with any Qualified Receivables Transaction; (x) the Company and any Restricted Subsidiary may engage in cash management and pooling transactions with Millicom and its Subsidiaries in the ordinary course of business; (xi) the Company and any Restricted Subsidiary may repay Intergroup Subordinated Loans so long as no Default or Event of Default shall have occurred and be continuing or would result from such Restricted Payment; (xii) the Company and any Restricted Subsidiary may make Restricted Payments to Millicom or any Subsidiary thereof so long as the proceeds thereof are transferred to the Company or any Restricted Subsidiary within 3 days of the making of such Restricted Payment and do not exceed 10.0% of Total Assets; and
69 (xiii) the Company and any of the Restricted Subsidiaries may make Restricted Payments not otherwise permitted hereby in an aggregate amount not to exceed the greater of US$50 million and 6.0% of Total Assets. Any Restricted Payment made pursuant to clause (i), (iv) or (viii) of this Section (only, and not other clauses) shall be a Restricted Payment for purposes of calculating aggregate Restricted Payments pursuant to clause (C) above. Section 5.06. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Restricted Subsidiary: (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock to the Company or any other of its Restricted Subsidiaries or pay any Debt or other obligation owed to the Company or any other such Restricted Subsidiary; (ii) to make loans or advances to the Company or any other of the Restricted Subsidiaries; or (iii) to transfer any of its property or assets to the Company or any other of the Restricted Subsidiaries. (b) Notwithstanding the foregoing, the Company may, and may permit any of its Restricted Subsidiaries to, suffer to exist any such encumbrance or restriction: (i) pursuant to any agreement in effect on the date of this Indenture; (ii) pursuant to an agreement relating to any Debt Incurred by a Person prior to the date on which such Person became such a Restricted Subsidiary and outstanding on such date and not Incurred in anticipation of becoming such a Restricted Subsidiary which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; (iii) pursuant to an agreement by which the Company or a Restricted Subsidiary obtains financing; provided that (x) such restriction is not materially more restrictive than customary provisions in comparable financing agreements and (y) the Company’s management determines that at the time such agreement is entered into such restriction will not materially impair the Company’s ability to make payments on the Notes; (iv) pursuant to an agreement effecting a renewal, refunding or extension of Debt Incurred pursuant to an agreement referred to in clauses (i), (ii), (iii) or (iv) above; provided, however, that the provisions contained in such renewal, refunding or extension agreement relating to such encumbrance or
70 restriction are no more restrictive in any material respect than the provisions contained in the agreement the subject thereof, as determined in good faith by the Company’s management; (v) in the case of clause (a)(iii) above, restrictions contained in any security agreement (including a capital lease) securing Debt of the Company or any of the Company’s Restricted Subsidiaries otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the property subject to such security agreement; (vi) in the case of clause (a)(iii) above, customary nonassignment provisions entered into in the ordinary course of business in leases to the extent such provisions restrict the transfer or subletting of any such lease; (vii) pursuant to customary restrictions contained in asset sale agreements limiting the transfer of property subject to such agreements pending the closing of such sales or pursuant to customary restrictions in share purchase agreements otherwise permitted under this Indenture for the sale of Subsidiaries on such sold Subsidiaries; (viii) customary restrictions pursuant to joint venture agreements or similar documents that restrict the transfer of ownership interests in or the payment of dividends or distributions from such joint venture or similar Person or agreements entered into in the ordinary course of business; provided further that the Company’s Board of Directors determines that, at the time such encumbrance or restriction arises or is agreed to, it will not materially impair the Company’s ability to make payments on the Notes; or (ix) if such encumbrance or restriction is the result of applicable law or regulation. Section 5.07. RESERVED. Section 5.08. Limitation on Liens Securing the Company’s Debt. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur or suffer to exist any Lien (other than Permitted Liens) on or with respect to any property or assets now owned or hereafter acquired to secure any of the Company’s Debt unless the Notes is equally and ratably secured by such Lien; provided that, if the Debt secured by such Lien is subordinated or junior in right of payment to the Notes, then the Lien securing such Debt shall be subordinated or junior in priority to the Lien securing the Notes. Section 5.09. Limitation on Guarantees of the Company’s Subordinated Debt. The Company may not permit any of its Restricted Subsidiaries, directly or indirectly, to assume, Guarantee or in any other manner become liable with respect to any of the Company’s Debt that is expressly by its terms subordinated or junior in right of payment to any other of the Company’s Debt.
71 Section 5.10. Limitation on Asset Dispositions. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, make any Asset Disposition in one or more related transactions unless: (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration for such disposition at least equal to the fair market value for the assets sold or disposed of as determined by the Company’s senior management or Board of Directors in good faith; (ii) unless the Asset Disposition is a Permitted Asset Swap, at least 75% of the consideration for such disposition consists of (A) cash or Cash Equivalents, (B) the assumption of the Company’s or any Restricted Subsidiary’s Debt or other liabilities (including Debt or liabilities that are subordinated to the Notes) or Debt or other liabilities of such Restricted Subsidiary relating to such assets and, in each case, the Company or the Restricted Subsidiary, as applicable, is released from all liability on the Debt assumed or (C) any Capital Stock or assets of the kind referred to in clauses (4) or (5) of Section 5.10(a)(iii)(A) hereof, or any combination thereof; (iii) (A) within 365 days of such Asset Disposition, the Net Available Proceeds are applied (at the Company or applicable Restricted Subsidiary’s option): (1) to repay, redeem, retire or cancel outstanding Senior Secured Debt; (2) first, to redeem Notes or purchase Notes pursuant to an offer to all Holders at a purchase price equal to at least 100% of the principal amount thereof, plus accrued and unpaid interest and second, to the extent any Net Available Proceeds from such Asset Disposition remain, to any other use as determined by the Company or the applicable Subsidiary that is not otherwise prohibited by this Indenture; (3) to repurchase, prepay, redeem or repay Pari Passu Debt; provided that the Company makes an offer to all Holders on a pro rata basis to purchase their Notes in accordance with the provisions set forth below for an Excess Proceeds Offer; (4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Related Business, if, after giving effect to any such acquisition of Capital Stock, the Related Business is or becomes a Subsidiary of the Company; (5) to make a capital expenditure or acquire other assets (other than Capital Stock and cash or Cash Equivalents), rights (contractual or otherwise) and properties, whether tangible
72 or intangible (including ownership interests) that are used or intended for use in connection with a Related Business; (6) to the extent permitted, to redeem Notes as provided under Section 4.02, Section 4.03 or Section 4.03; or (7) any combination of the foregoing subclauses (1) through (6) of this clause (iii)(A). (B) enter into a binding commitment to apply the Net Available Proceeds pursuant to subclauses (4) and (5) of clause (a); provided that such binding commitment (or any subsequent binding commitment replacing the initial binding commitment that is entered into within 180 days following the aforementioned 365-day period) shall be treated as a permitted application of the Net Available Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period. (b) For purposes of Section 5.10(a), any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion), shall be deemed cash. (c) The amount of such Net Available Proceeds not so used as set forth in the paragraph above constitutes “Excess Proceeds.” Pending the final application of any such Net Available Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise use such Net Available Proceeds in any manner that is not prohibited by the terms of this Indenture. (d) When the aggregate amount of Excess Proceeds exceeds $30 million, the Company shall, within 15 Business Days of the end of the applicable period in clause (iii) of this Section 5.10, make an offer to purchase (an “Excess Proceeds Offer”) from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a minimum amount of $200,000 and integral multiples of $1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus, in each case, accrued and unpaid interest, if any, to the date of purchase.
73 (e) To the extent that the aggregate principal amount of Notes and any such Pari Passu Debt tendered pursuant to an Excess Proceeds Offer is less than the aggregate amount of Excess Proceeds, the Company may use the amount of such Excess Proceeds not used to purchase Notes and Pari Passu Debt for purposes that are not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and any such Pari Passu Debt validly tendered and not withdrawn by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Pari Passu Debt to be purchased will be selected by the security registrar or the paying agent on a pro rata basis (based upon the principal amount of Notes and the principal amount or accreted value of such Pari Passu Debt tendered by each holder as provided or calculated by the Company or, in the case of Global Notes, based on a method as DTC may require). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero. (f) If the Company is obliged to make an Excess Proceeds Offer, the Company shall purchase the Notes and Pari Passu Debt, at the option of the holders thereof, in whole or in part in a minimum amount of $200,000 and integral multiples of $1,000 in excess thereof on a date that is not later than 60 days from the date the notice of the Excess Proceeds Offer is given to such holders, or such later date as may be required under the Exchange Act. (g) If the Company is required to make an Excess Proceeds Offer, the Company shall comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations, including the requirements of any applicable securities exchange on which Notes are then listed. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.10 or Section 4.09, the Company will comply with such securities laws and regulations and will not be deemed to have breached its obligations described in this Section 5.10 or Section 4.09 by virtue thereof. Section 5.11. Transactions with Affiliates. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, enter into any transaction that involves in excess of $10.0 million with any of the Company’s Affiliates (other than the Company or any of the Restricted Subsidiaries), either directly or indirectly, unless such transaction is on terms no less favorable to the Company or such Restricted Subsidiary than those that could be obtained in a comparable arm’s length transaction with an entity that is not an Affiliate of the Company or such Restricted Subsidiary. For any such transaction that involves in excess of $20.0 million, a majority of the members of the Company’s Board of Directors shall determine that such transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution filed with the Trustee. (b) The foregoing restriction shall not apply to (i) reasonable and customary payments to or on behalf of the Company’s directors, officers or employees or any of the directors, officers or employees of the Company’s Restricted Subsidiaries, or in reimbursement of reasonable and customary payments or reasonable and customary expenditures made or Incurred by such Persons as directors, officers or employees; (ii) any Restricted Payment permitted under Section 5.05; (iii) any loan or advance by the Company or any of its Restricted Subsidiaries to employees of any of them in the
74 ordinary course of business; (iv) any transactions under or pursuant to (A) the Technical Services Agreement (including any amendment or replacement thereto that adjusts the rate of payments made by the Company thereunder up to a rate of 5% of the Company’s gross revenues for the relevant period), (B) transactions between the Company and Mobile Cash and the Company and SPM provided such transactions in the aggregate do not involve the transfer of value from the Company to Mobile Cash or SPM, in the case of each of Mobile Cash and SPM, in excess of $10 million on an annual basis; provided, however, that for the avoidance of doubt, upon consummation of the SPM Transaction, transactions among the Restricted Group shall no longer be subject to this limitation, and (C) loans from the Company and/or Lothar Systems S.A. to SPM provided such loans are not in excess of $50 million in the aggregate (including any loans made prior to the issuance of the Notes); provided, however, that for the avoidance of doubt, upon consummation of the SPM Transaction, transactions among the Restricted Group shall no longer be subject to this limitation, including in all the foregoing cases in this clause (iv) any other amendments or replacements thereto (other than any which affects the 5%, $10 million and $50 million limits referred to above) as are on terms that are no less favorable to the Company or any of its Restricted Subsidiaries than those that could be reasonably obtained in a comparable transaction on an arm’s length basis from a Person that is not an Affiliate or a Related Person of the Company; (v) transactions with customers, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with this Indenture, (vi) any transaction with a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations, (vii) the payment to Millicom or any Subsidiary of Millicom of all reasonable expenses Incurred by Millicom or any Subsidiary of Millicom in connection with its direct or indirect Investment in the Company, its Subsidiaries and unpaid amounts accrued for prior periods, (viii) the payment to Millicom and its Related Parties of Value Creation Fees of up to the greater of $50.0 million and 6.0% of Total Assets per annum, (ix) the issuance of shares or Intergroup Subordinated Loans, provided, however, that after giving pro forma effect to any such issuance of Intergroup Subordinated Loans or the payment of cash interest on such Intergroup Subordinated Loans, the Leverage Ratio would not exceed 4.00 to 1.00, (x) transactions with Affiliates in their capacity as holders of indebtedness of the Company or any Restricted Subsidiary, (xi) Cash Management Loans, (xii) any transaction under any tax sharing agreement or arrangement and payments pursuant thereto between or among Millicom, any Subsidiary of Millicom, the Company, a Restricted Subsidiary or any other Person not otherwise prohibited by this Indenture and any payments or other transactions pursuant to a tax sharing agreement between the Company or a Restricted Subsidiary and any other Person with which the Company or any of the Restricted Subsidiaries files a consolidated tax return or with which the Company or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation; provided that any such payments or other transactions pursuant to a tax sharing agreement under this clause (xii) does not exceed the taxes that would be payable by the Company and its Subsidiaries on a stand-alone basis or as a stand-alone tax group, reduced by any such taxes paid by the
75 Company and/or any of its Subsidiaries, and (xiii) contributions to the common equity capital of the Company or the issue or sale of Capital Stock of the Company. Section 5.12. RESERVED. Section 5.13. Payment of Taxes. The Company will pay or discharge or cause to be paid or discharged, before the same becomes delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any of its Restricted Subsidiaries, or the Company’s or any of its Restricted Subsidiaries’ income, profits or property, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Company’s property, or the Restricted Subsidiaries’ property; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings, except where failure to pay or discharge such taxes, assessments, governmental charges or claims would not, singly or in the aggregate, have a material adverse effect. Section 5.14. Provision of Financial Information. (a) The Company will furnish to the Trustee and the Holders, without cost to each Holder: (1) within 120 days after the end of each Fiscal Year, the Company’s audited financial statements for the two most recent years (including income statements, balance sheets, cash flow statements and statements of changes in stockholders’ equity) and related notes thereto prepared in accordance with IFRS, as issued by the International Accounting Standards Committee, consistently applied, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section with scope and content substantially similar to the corresponding section of the final offering memorandum with respect to the Notes dated as of March 28, 2019 (after taking into consideration any changes to the Company’s business and operations after the issue date) and, with respect to the annual financial information, a report thereon by the Company’s certified independent accountants together with a certificate of the chief financial officer of the Company stating that, to the best of such officer’s knowledge after due inquiry, the Company during such period has kept, observed, performed and fulfilled each and every covenant and condition contained in this Indenture and that such officer has obtained no knowledge of any Default or Event of Default; and (2) within 60 days after the end of each of the first three fiscal quarters of each Fiscal Year, quarterly reports attaching the Company’s unaudited consolidated financial statements for the period then ended and the comparable period in the prior year (including income statements, balance sheets, cash flow statements and statements of changes in stockholders’ equity) prepared in accordance with IFRS, as issued by the International Accounting Standards Committee, together with footnote disclosure and a summary “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section (after taking into consideration any changes to the Company’s business and operations after the issue date). (b) In addition, so long as the Notes remain Outstanding and during any period during which the Company is not subject to Section 13 or 15(d) of the Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Company will furnish to the
76 Noteholders and prospective purchasers of the Notes upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (c) So long as the Notes are listed on the Luxembourg Stock Exchange, copies of the information and reports referred to in Section 5.14(a)(1) and (2) will be available during normal business hours at the offices of the Luxembourg Paying Agent in Luxembourg. (d) Delivery of any information, documents and reports to the Trustee pursuant to this Section 5.14 is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officer’s Certificate). Section 5.15. Limited Condition Transaction. (a) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Indenture which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Company, be deemed satisfied, so long as no Default or Event of Default, as applicable, exists on the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into. For the avoidance of doubt, if the Company has exercised its option under the first sentence of this paragraph, and any Default or Event of Default occurs following the date such definitive agreement for a Limited Condition Transaction is entered into and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder. (b) In connection with any action being taken in connection with a Limited Condition Transaction for purposes of: (i) determining compliance with any provision of this Indenture which requires the calculation of any financial ratio or test, including the Leverage Ratio; or (ii) testing baskets set forth in this Indenture (including baskets measured as a percentage of Total Assets); in each case, at the option of the Company (the Company’s election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (the “LCT Test Date”); provided, however, that the Company shall
77 be entitled to subsequently elect, in its sole discretion, the date of consummation of such Limited Condition Transaction instead of the LCT Test Date as the applicable date of determination, and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence of Debt and the use of proceeds thereof), as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Consolidated EBITDA” and “Leverage Ratio,” the Company or any Subsidiary could have taken such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. If the Company has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets, of the Company and its Subsidiaries at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, test or basket availability under this Indenture (including with respect to the Incurrence of Debt or Liens, or the making of Asset Dispositions, acquisitions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company or any Subsidiary or the designation of an Unrestricted Subsidiary) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and the use of proceeds thereof) have been consummated. Section 5.16. Limitation on Lines of Business. The Company, together with its Restricted Subsidiaries, shall not primarily engage in any business other than in a Related Business. Section 5.17. RESERVED. Section 5.18. Unrestricted Subsidiaries. The Company may designate any of its Restricted Subsidiaries to be an “Unrestricted Subsidiary,” in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary. Section 5.19. Subsidiary Guarantors. If any or all of the Subsidiaries of the Company represent more than 20%, in the aggregate, of any financial parameter set forth in Rule 1-02(w) of Regulation S-X under the Securities Act of 1933, as amended in effect on the date hereof, then all such Subsidiaries shall become Subsidiary Guarantors within
78 5 Business Days; provided, however, that any Subsidiary with total assets of less than U.S.$250,000 shall not be considered in this calculation nor shall any such Subsidiary be required to become a Subsidiary Guarantor as a result of this provision. Section 5.20. Release from Certain Covenants. If on any date the Notes have an Investment Grade rating from both Rating Agencies and no Event of Default has occurred and is continuing, and notwithstanding that the Notes may later cease to have such Investment Grade ratings, the Company and its Restricted Subsidiaries shall be released from their obligations to comply with Sections 5.04, 5.05, 5.06, 5.10 and Section 5.21(a)(ii)(C). Section 5.21. Merger, Consolidations and Certain Sales of Assets of the Company. (a) The Company may not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into the Company; or (ii) directly or indirectly, convey, transfer, sell, lease or otherwise dispose of all or substantially all of the Company’s assets to any other Person, unless: (A) in a transaction in which the Company does not survive or in which the Company sells, leases or otherwise disposes of all or substantially all of its assets, the Company’s successor entity (1) shall expressly assume, by a supplemental indenture executed and delivered to the Trustee in form satisfactory to the Trustee, all of the Company’s obligations under this Indenture and (2) is organized under the laws of (x) Paraguay or (y) the United States or any State thereof or the District of Columbia or (z) any other country if such successor entity undertakes, in such supplemental indenture, to pay such additional amounts in respect of principal (and premium, if any) and interest as may be necessary in order that the net amounts paid pursuant to the Notes after deduction or withholding of any present or future withholding taxes, levies, imports or charges whatsoever imposed by or for the account of such country or any political subdivision or taxing authority thereof or therein shall equal the respective amounts of principal (and premium, if any) and interest specified in the Notes; (B) immediately after giving effect to such transaction and treating any Debt which becomes the Company’s obligation or that of any of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the time of the transaction, no Default or Event of Default shall have occurred and be continuing;
79 (C) immediately after giving effect to such transaction and treating any Debt which becomes the Company’s obligation, or that of any of its Restricted Subsidiaries, as a result of such transaction as having been Incurred at the time of the transaction, (1) the Company (including any successor entity) could Incur at least $1.00 of additional Debt pursuant to Section 5.04(a) or (2) the Leverage Ratio would not be greater than such ratio before giving effect to such transaction; provided, however, that this clause (C)(2) will not apply if the Person merged or consolidated with or into the Company is a Subsidiary of Millicom incorporated in Paraguay and the transaction is carried out on terms not materially less favorable to the Company than those that might be obtained at the time from Persons that are not Affiliates of the Company, and provided further, that this clause (C) will not apply if, in the good faith determination of the Company’s Board of Directors, which determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change the Company’s jurisdiction of incorporation; and (D) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Section 5.21 and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) Upon any consolidation or merger in which of the Company with, or merger of the Company is not the continuing corporation or any transfer (excluding any lease) of all or substantially all of the assets of the Company in accordance with Section 5.21(a), the successor Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and this Indenture with the same effect as if such successor Person had been named as the Company. Section 5.22. Change of Control. Within 60 days of the occurrence of a Change of Control Triggering Event, the Company will be required to make an Offer to Purchase all Outstanding Notes at a purchase price equal to 101% of their principal amount plus accrued interest and any additional amounts thereon to the date of purchase (subject to the right of holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date). ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.01. Events of Default. The following events shall each be an “Event of Default” under the terms of the Notes and this Indenture: (a) failure to pay principal of (or premium if any, on) any Note when due;
80 (b) failure to pay any interest (including Additional Amounts) on any Note when due, continued for 30 days; (c) default in the payment of principal and interest on Notes required to be purchased pursuant to an Offer to Purchase as described under Section 5.22 when due and payable; (d) failure to perform or comply with the provisions described under Sections 5.21 and 5.04 (e) failure of the Company to perform any other of the covenants or agreements under this Indenture or the Notes which failure continues for 60 days after written notice to the Company by the Trustee or Holders of at least 25% in aggregate principal amount of Outstanding Notes; (f) default or defaults under the terms of any instrument evidencing or securing the Company’s Debt or Debt of any Material Subsidiary having an outstanding principal amount of $25 million individually or in the aggregate which default or defaults results in the acceleration of the payment of such Indebtedness or constitutes the failure to pay such Indebtedness when due at Stated Maturity after giving effect to the expiration of any applicable grace periods (and other than by regularly scheduled required prepayment) and such failure to make any payment has not been waived or the Stated Maturity of such debt has not been extended; (g) the rendering of a final judgment or judgments (not subject to appeal) against the Company or any Material Subsidiary in an amount in excess of $25 million which remains undischarged or unstayed for a period of 60 days after the date on which the right to appeal has expired; (h) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any Material Subsidiary in an involuntary case or proceeding under any applicable Federal, State or foreign bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or any Material 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 Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Material 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 for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; and (i) the commencement by the Company or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or any Material Subsidiary in an involuntary case or
81 proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Material Subsidiary in furtherance of any such action. Section 6.02. Acceleration of Maturity; Rescission and Annulment. (a) If an Event of Default specified in Section 6.01(h) above shall occur, the maturity of all Outstanding Notes shall automatically be accelerated and the principal amount of the Notes, together with any premium, accrued interest or Additional Amounts thereon, shall be immediately due and payable. If any other Event of Default shall occur and be continuing, the Trustee or the Holders of not less than 25% of the aggregate principal amount of the Notes then Outstanding may, by written notice to the Company (and to the Trustee if given by Noteholders), declare the principal amount of the Notes, together with accrued interest thereon, immediately due and payable. The right of the Noteholders to give such acceleration notice shall terminate if the event giving rise to such right shall have been cured before such right is exercised. Any such declaration may be annulled and rescinded by written notice from the Trustee or Majority Noteholders to the Company if (i) all amounts then due with respect to the Notes are paid (other than amount due solely because of such declaration) and all other defaults with respect to the Notes are cured, and (ii) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances in connection with such acceleration and rescission. (b) In case the Company shall fail to comply with its obligations under this Indenture or the Notes and such failure shall be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Noteholders, unless such Noteholders shall have offered to the Trustee indemnity and/or security satisfactory to it. The Majority Noteholders will 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 the Trustee may refuse to follow any direction that conflicts with the provisions of this Indenture or applicable law, for which the Trustee is not indemnified and/or provided with security to its satisfaction, may involve the Trustee in personal liability, or for which the Trustee determines may be unduly prejudicial to the rights of other Noteholders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such directions are unduly prejudicial to the other Noteholders). Section 6.03. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Noteholder to exercise any right or remedy accruing upon any Event of
82 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 8 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Noteholders, as the case may be. No waiver of any Event of Default, whether by the Trustee or by the Noteholders, shall extend to or shall affect any subsequent Event of Default or shall impair any remedy or right consequent thereon. Section 6.04. Waiver of Past Defaults. (a) The Majority Noteholders may on behalf of the Noteholders of all the Notes waive any past Default hereunder and its consequences, except a Default not theretofore cured: (i) in the payment of the principal of (or premium, if any) or interest on any Note (including any Note which is required to have been purchased pursuant to an Offer to Purchase made by the Company), or (ii) in respect of a covenant or provision hereof which under Article 6 or Article 7 cannot be modified or amended without the consent of the Noteholder of each Outstanding Note affected. (b) 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 impair any right consequent thereon. Section 6.05. Trustee May File Proofs of Claim. (a) In case of pendency in any receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or any other judicial proceedings relating to the Company or any obligor on the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for payment of overdue principal or interest) shall be entitled and empowered by intervention in such proceedings or otherwise to: (i) file and prove a claim for the whole amount of principal and interest owed and unpaid in respect of the Notes and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 7.05) and of the Noteholders allowed in such judicial proceeding; and (ii) collect and receive any moneys or other property payable or deliverable on any such claims and to distribute same.
83 (b) In any such event, any receiver, assignee, trustee, liquidator or sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Noteholder to make such payment to the Trustee and in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.05. (c) Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such proceeding. (d) With the consent of the majority Noteholders, the Trustee shall be entitled to participate as a member of any official committee of creditors in the matters it deems advisable. Section 6.06. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, be for the ratable benefit of the Noteholders. Section 6.07. Application of Money Collected. Any money collected by the Trustee with respect to the Notes 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 principal or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 7.05 hereof. SECOND: To the payment of the amounts then due and unpaid upon the Notes for principal and interest, in respect of which or for the benefit of which such money has been collected, ratably among Notes, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal and interest, respectively. Section 6.08. Limitation on Suits. No Noteholder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (a) such Noteholder has previously given written notice to the Trustee of a continuing Event of Default with respect to Notes;
84 (b) the Noteholders of not less than 25% in aggregate principal amount of the then Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Noteholder or Noteholders have offered to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 calendar days after its receipt of such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Majority Noteholders; it being understood and intended that no one or more Noteholders 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 Noteholder, or to obtain or to seek to obtain priority or preference over any other Noteholder or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate benefit of all the Noteholders. Section 6.09. Unconditional Right of Noteholders to Receive Principal and Interest and Other Amounts. Notwithstanding any other provisions in this Indenture, the Noteholders shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest and other amounts on such Note on the respective maturities or due dates expressed in such Note (or, in the case of redemption or repayment, on the Optional Redemption Date, the Early Tax Redemption Date or the Stated Maturity, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder. Section 6.10. Restoration of Rights and Remedies. If the Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Company the Trustee and the Noteholders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Noteholders shall continue as though no such proceeding had been instituted. Section 6.11. Rights and Remedies Cumulative. Except as otherwise provided in the last paragraph of Section 2.13, no right or remedy herein conferred upon or reserved to the Trustee or to the Noteholders 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.
85 Section 6.12. Control by Noteholders. The Majority Noteholders 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 with respect to the Notes; provided that: (a) the Trustee shall have the right to decline to follow any such direction if the Trustee determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer, determine that the proceedings so directed would involve it in personal liability or it reasonably believes it will not be indemnified to its satisfaction against the costs, expenses and liabilities which might be incurred by it in complying with its request or be unjustly prejudicial to the Noteholders not taking part in such direction; and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Section 6.13. Undertaking for Costs. All parties to this Indenture agree, and each Noteholder by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any part litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.13 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in principal amount of then Outstanding Notes, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or interest on any Note on or after the respective maturities expressed in such Note (or, in the case of redemption or repayment, on or after the applicable redemption date). Section 6.14. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted. ARTICLE 7 CONCERNING THE TRUSTEE Section 7.01. Certain Rights and Duties of Trustee. (a) Except during the continuance of an Event of Default,
86 (i) the Trustee undertakes to perform 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. (ii) 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; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (b) In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs. (c) Any request, direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board of Directors shall be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Company; (d) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture, and may refuse to perform any duty or exercise any such rights or powers unless it shall have been offered security and/or indemnity to its satisfaction against the costs, expenses and liabilities which may be incurred therein or thereby; (e) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that this subsection (e) shall not be construed to limit the effect of subsection (a) of this Section 7.01; (f) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee appointed with due care by it hereunder; (g) 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 Majority Noteholders, 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, under this Indenture; and
87 (h) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document; (i) The Trustee shall have no obligation to invest and reinvest any cash held pursuant to this Indenture in the absence of timely and specific written investment direction from the Company. In no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Company to provide timely written investment direction; (j) The Trustee shall not be deemed to have knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Company, the Notes and this Indenture; (k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Notes, the Principal Paying Agent and each other agent, custodian and other Person employed to act hereunder; (l) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded; and (m) 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 satisfactory to it against such risk or liability is not reasonably assured to it. 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 7.01. (n) The Trustee may reasonably request information, including an Officer’s Certificate, from time to time, as necessary or appropriate in order to ascertain compliance with the requirements of this Indenture and the Notes and may consult with counsel and the advice or opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel.
88 (o) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use reasonable efforts, which are consistent with accepted practices in the banking industry, to resume performance as soon as practicable under the circumstances. (p) The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture. (q) The permissive rights of the Trustee enumerated herein shall not be construed as duties. Section 7.02. Trustee Not Responsible for Recitals; Etc. The recitals contained herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any of the Notes or of the proceeds of such Notes. Section 7.03. Trustee and Others May Hold Notes. The Trustee or any Paying Agent or Note Registrar or any other Authorized Agent, or any Affiliate thereof, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any other obligor on the Notes with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar or such other Authorized Agent. Section 7.04. Moneys Held by Trustee or Paying Agent. (a) Whenever the Company shall have one or more Paying Agents, the Company will on or prior to 10 a.m. one Business Day prior to each due date of the principal of (and premium, if any) or interest on any Notes, make such payments by depositing with the Trustee or a Paying Agent an amount sufficient to make such payments, such amount to be held in trust by the Trustee or the Paying Agent for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) such Paying Agents will promptly notify the Trustee of the Company’s action or failure so to act. Each Paying Agent other than the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent shall 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 7.04, to the effect that such Paying Agent will: (i) hold all amounts held by it for the making of payments in respect of the Notes in trust for the benefit of the Persons entitled thereto until such amounts shall be paid to such Persons or otherwise disposed of as herein provided;
89 (ii) provide the Trustee notice of any Default by the Company in the making of payments in respect of the Notes; and (iii) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all amounts so held in trust by such Paying Agent. (b) 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 deliver, or direct any Paying Agent to pay or deliver, to the Trustee all amounts held in trust by the Company or such Paying Agent, such amounts to be held by the Trustee upon the same trusts as those upon which such amounts 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. (c) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the making of any payment in respect of any Note and remaining unclaimed for two years after such payment has become due and payable shall be paid or returned to the Company upon written request by the Company or (if then held by the Company) shall be discharged from such trust; and Noteholders shall thereafter, as unsecured general creditors, seek recourse only to the Company for payment thereof (unless an applicable abandoned property law designates another Person), 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 that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid or redelivered to the Company. Section 7.05. Compensation of the Trustee. (a) The Company agrees: (i) to pay to the Trustee (all references in this Section 7.05 to the Trustee shall be deemed to apply to the Trustee in its capacities as Trustee, Paying Agent, Note Registrar and Transfer Agent) from time to time such compensation as the Company and the Trustee shall from time to time agree in writing 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); (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and
90 (iii) to indemnify each of the Trustee and its officers, employees, directors and agents for, and to hold them harmless against, any loss, liability, damage, claims or expense (including, without limitation, the fees and expenses of its agents and legal counsel) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liabilities in connection with the exercise of its rights and/or performance of any of its powers or duties hereunder. (b) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 6.01(h), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable Federal or state bankruptcy, insolvency or other similar law. (c) The Trustee and the Principal Paying Agent shall have a lien prior to the Noteholders as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee or Principal Paying Agent pursuant to this Section 7.05, except with respect to funds held in trust for the benefit of the Holders of particular Notes. (d) The provisions of this Section 7.05 shall survive the termination of this Indenture and the resignation or removal of the Trustee. Section 7.06. Right of Trustee to Rely on Officer’s Certificates and Opinions of Counsel. Before the Trustee acts or refrains from acting with respect to any matter contemplated by this Indenture, it may require an Officer’s Certificate of the Company or an Opinion of Counsel, which shall conform to the provisions of Section 13.01. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion as set forth in Section 7.01(a)(ii). Section 7.07. Persons Eligible for Appointment as Trustee. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $5,000,000, subject to supervision or examination by Federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 7.07, 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. In case at any time the Trustee shall cease to be eligible in accordance with this Section 7.07, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.08. Section 7.08. Resignation and Removal of Trustee; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article 7 shall become effective until the acceptance of appointment by the successor Trustee under Section 7.09.
91 (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by Act of the Majority Noteholders, delivered to the Trustee and to the Company. (d) If at any time: (i) the Trustee shall cease to be eligible under Section 7.07 and shall fail to resign after written request therefor by the Company or by any such Noteholder, or (ii) 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) any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Majority Noteholders 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 Noteholders and accepted appointment in the manner hereinafter provided, any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee. (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Noteholders in the manner provided in Section 13.04. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. Section 7.09. Acceptance of Appointment by Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment within 60 days of such resignation or removal, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or
92 conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company, or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. (a) If an instrument of acceptance shall not have been delivered to the Trustee within 60 days after giving such notice of resignation or removal, as the case may be, the Trustee resigning or being removed, as the case may be, may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a Successor Trustee. (b) 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 7. (c) Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such successor Trustee shall be qualified and eligible under the provisions of Section 7.07 hereof. (d) In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered by the Trustee then in office, any such successor to such authenticating Trustee may adopt such certificate of authentication and deliver the Notes so authenticated and in such case such certificate shall have the same force under the Notes and under this Indenture as if authenticated by such predecessor Trustee. (e) Notwithstanding the replacement of the Trustee pursuant to Section 7.08, the Company’s obligations under Section 7.05 shall continue for the benefit of the retiring Trustee with respect to matters or actions arising prior to such replacement. Section 7.10. Appointment of Authenticating Agent. (a) At any time when any Notes remain Outstanding, the Trustee may, at the expense of the Company, appoint an authenticating agent or agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes issued upon original issuance, exchange, registration of transfer or redemption thereof or pursuant to Section 2.12 (an “Authenticating Agent”), and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder (it being understood that wherever reference is made in this Indenture to the authentication and delivery of Notes by the
93 Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent). Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by Federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 7.10Section 7.11, the combined capital and surplus of such Authenticating Agent 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 an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 7.10. (b) Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 7.10, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. (c) An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid, to all Noteholders as their names and addresses appear in the Note Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 7.10. (d) The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 7.10, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 7.05. (e) If an appointment is made pursuant to this Section 7.10, the Notes may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
94 “This Note is one of the Notes referred to in the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: As Authenticating Agent By: Authorized Officer Section 7.11. Appointment of Note Registrar, Paying Agents and Transfer Agent. The Company initially appoints Citibank, N.A., as Note Registrar, Principal Paying Agent and Transfer Agent and Banque Internationale à Luxembourg SA, as Luxembourg Paying Agent and Transfer Agent in Luxembourg in connection with the Notes. The agents hereby appointed accept such appointment and agree and undertake to comply with all the provisions of this Indenture. In acting hereunder and in connection with the Notes, each of the Principal Paying Agent, the Note Registrar and the Transfer Agent shall act solely as agents of the Issuer, and will not thereby assume any obligations towards or relationship of agency or trust for or with any Holder, except as expressly stated elsewhere in this Indenture (including, for the avoidance of doubt, Sections 7.04 and 7.05 hereof). So long as the Notes are listed on the Luxembourg Stock Exchange, the Company will maintain a Paying Agent and Transfer Agent in Luxembourg. If the Notes are listed on any other securities exchange, the Company will satisfy any requirement at such securities exchange as to paying agents. So long as the Notes are listed on the Luxembourg Stock Exchange, any change in the Luxembourg Paying Agent shall be notified to Noteholders by publication of notices to the Noteholders in accordance with the provisions of Section 13.04 of this Indenture. Copies of all written information provided by the Company hereunder, including without limitation, all such information and financial statements provided to the Trustee under Section 5.14 hereof, shall be sent by first class mail to the Luxembourg Paying Agent at its offices at 69, route d’Esch, L-2953 Luxembourg, or such other address as shall be designated by the Luxembourg Paying Agent to the Trustee and the Company. Section 7.12. Reports by Trustee. (a) So long as any Notes are Outstanding hereunder, the Trustee shall transmit to the Noteholders, at intervals of not more than 12 months, a brief report with respect to any of the following events which solely with respect to clause (v) below, may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted):
95 (i) Its eligibility under Section 7.07, or in lieu thereof, if to the best of its knowledge it has continued to be eligible under such Section, a written statement to such effect; (ii) The character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Notes, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 0.5% of the principal amount of the Notes Outstanding on the date of such report; (iii) The amount, interest rate and maturity date of all other Indebtedness owing by the Company (or any other obligor on the Notes) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor; (iv) The property and funds, if any, physically in the possession of the Trustee as such on the date of such report; (v) Any additional issue of Notes which the Trustee has not previously reported; and (vi) Any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Notes.\ (b) A copy of each such report shall, at the time of such transmission to Noteholders, be filed by the Trustee with each stock exchange upon which the Note are listed and with the Company. The Company will notify the Trustee when the Notes are listed on any stock exchange. Section 7.13. Waiver of Damages. Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee or any Agent be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee or such Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. ARTICLE 8 CONCERNING THE HOLDERS Section 8.01. Acts of Noteholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders (collectively, an “Act” of such Noteholders, which term also shall refer to the instruments or record evidencing or embodying the same) may be embodied
96 in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are received by the Trustee and, where it is hereby expressly required, by the Company. 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 7.01) conclusive in favor of the Trustee, and the Company, if made in the manner provided in this Section 8.01. (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 such Person’s 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 which the Trustee deems sufficient. (c) The ownership of the Notes, the principal amount and serial numbers of Notes held by any Person, and the date or dates of holding the same, shall be proved by the Note Register and the Trustee shall not be affected by notice to the contrary. (d) Any Act of any Noteholder (i) shall bind the Holder of such Note and every future Noteholder of the same Note and the Noteholder of every Note issued upon the transfer thereof or the exchange therefore or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, or the Company in reliance thereon, whether or not notation of such action is made upon such Note. (e) The Company may fix any day as the record date for the purpose of determining the Noteholders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Noteholders. If not set by the Company prior to the first solicitation of a Noteholder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Noteholders required to be provided pursuant to Section 2.19) prior to such first solicitation or vote, as the case may be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action. (f) The Notes shall vote and consent together on all matters as one class, and none of the Notes, and no tranche of Notes, shall have the right to vote or consent as a separate class on any matter. Section 8.02. Notes Owned by Company and Affiliates Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any request, demand, authorization, direction, notice, consent and
97 waiver or other Act under this Indenture, Notes which are owned by the Company or any Affiliate of either of the foregoing shall be disregarded and deemed not to be Outstanding for the purpose of any such determination except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Notes for which a Responsible Officer of the Trustee has received written notice of such ownership as conclusively evidenced by the Note Register shall be so disregarded. The Company shall furnish the Trustee, upon its reasonable request, with a list of such Affiliates. In case of a dispute as to such right, any decision by the Trustee, taken upon the advice of counsel, shall be full protection to the Trustee. ARTICLE 9 RESERVED ARTICLE 10 SUPPLEMENTAL INDENTURES Section 10.01. Supplemental Indenture with Consent of Noteholders. (a) With the consent of the Majority Noteholders, by act of said Noteholders 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 Noteholders under this Indenture (including, without limitation, any modification to the provisions of this Indenture with respect to any Offer to Purchase, provided such modifications are effected prior to the mailing to any Noteholder of an Offer with respect to such Offer to Purchase); provided, however, that no such supplemental indenture shall, without the consent of the Holders of 90% of the aggregate principal amount of then Outstanding Notes affected thereby, (i) change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change the Place of Payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right of the Noteholders to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Early Tax Redemption Date, the Optional Redemption Date or the Payment Date, as the case may be), or (ii) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Noteholders is required for any such supplemental indenture, or the consent of whose Noteholders is required for any waiver (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided for in this Indenture, or (iii) following the mailing to a Noteholder of an Offer with respect to an Offer to Purchase and until the Expiration Date of such Offer to Purchase,
98 modify the provisions of this Indenture with respect to such Offer to Purchase in a manner adverse to such Noteholder. (b) It shall not be necessary for any Act of Noteholders under this Section 10.01 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Section 10.02. Supplemental Indentures Without Consent of Noteholders. Without the consent of any Noteholders, the Company, when authorized by a Board Resolution, and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes: (a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company, as applicable, and in the Notes, as applicable; or (b) to add to the covenants of the Company for the benefit of the Noteholders, or to surrender any right or power herein conferred upon the Company; or (c) to secure the Notes pursuant to the requirements of Section 5.08 or otherwise; or (d) 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 which shall not be inconsistent with the provisions of this Indenture, provided that such action pursuant to this clause (d) shall not adversely affect the interests of the Noteholders in any material respect; or (e) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof; or (f) to modify, eliminate or add to the provisions of this Indenture to permit or facilitate the issuance of Global Notes and matters related thereto, provided that such action pursuant to this clause (f) shall not adversely affect the interests of the Noteholders in any material respect. Section 10.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article 10 or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.01, an Officer’s Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and all conditions precedent to the execution of such supplemental indenture have been met. The Trustee may, but shall not be obligated
99 to, enter into any such supplemental indenture which affect the Trustee’s own rights, duties or immunities under this Indenture, the Notes or otherwise. Section 10.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article 10, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 10.05. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 10 may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and upon receipt of a Company Order, authenticated and delivered by the Trustee in exchange for Outstanding Notes. ARTICLE 11 SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when: (a) either (i) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for whose payment money has been deposited in trust and thereafter repaid to the Issuer, have been delivered to the Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and the Issuer has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non- callable Government Securities, or a combination of cash in U.S. dollars and non- callable Government Securities, in each case, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Debt on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption; (b) the Issuer has paid or caused to be paid all sums payable by it under this Indenture; and
100 (c) the Issuer has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be. In addition, the Issuer must deliver an Officer’s Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied; provided that any such counsel may rely on any Officer’s Certificate as to matters of fact (including as to compliance with the foregoing clauses (a), (b) and (c) of this Section 11.01. (d) Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to Section 11.01(a)(ii), the provisions of Section 11.02 and Section 7.04(c) hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.05 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture. Section 11.02. Application of Trust Money. All money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it 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 Noteholders for whose payment or redemption such money has been deposited with the Trustee, of all sums due and to become due thereon for principal (and premium, if any) and interest; but such money need not be segregated from other funds except to the extent required by law. ARTICLE 12 DEFEASANCE Section 12.01. Company’s Option to Effect Defeasance or Covenant Defeasance. Each of the Company may at its option by a Board Resolution, at any time, elect to have either Section 12.02 or Section 12.03 applied to the Outstanding Notes upon compliance with the conditions set forth below in this Article 12. Section 12.02. Defeasance and Discharge. Upon the Company’s exercise of the option provided in Section 12.01 to have this Section 12.02 applied to the Outstanding Notes, the Company may be deemed to have been discharged from its obligations with respect to the Outstanding Notes on the date the conditions in Section 12.04 are satisfied (a “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes and to have satisfied all its other obligations under the Notes and this Indenture (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 such Noteholders to receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such Section 12.04, payments in respect of the principal of (and premium, if any) and interest (including any Additional Amounts) on the Notes when such payments are due, (b) the Company’s obligations, as applicable, with respect to such Notes under Sections
101 2.12, 2.13, 5.01, and 7.05, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article 12 and the Company’s obligations to the Trustee under Section 7.05. Subject to compliance with this Article 12, the Company may exercise its option under this Section 12.02 notwithstanding the prior exercise of its option under Section 12.03. Section 12.03. Covenant Defeasance. Upon the Company’s exercise of the option provided in Section 12.01 to have this Section 12.03 applied to the Notes, (i) the Company may be released from its obligations under Article 5 with respect to the Notes and (ii) the occurrence of a breach or violation of any such covenant (except with respect to Section 6.01(a) and (b)) shall not be deemed to be an Event of Default (a “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or clause, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or clause or by reason of any reference in any such Section or clause to any other provision herein or in any other document, but the remainder of this Indenture and such Notes shall be unaffected thereby. Section 12.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 12.02 or Section 12.03 to the then Outstanding Notes: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.07 who shall agree to comply with the provisions of this Article 12 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 Noteholders, (i) U.S. dollars, or (ii) U.S. Government Obligations or (iii) a combination thereof, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one Business Day before the due date of any payment, money in an amount, sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and each installment of interest on the Notes on the Stated Maturity of such principal of or installment of interest in accordance with the terms of this Indenture and such Notes. For this purpose, “U.S. Government Obligations” means securities that are (x) direct obligations of the United States for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States, which, in either case, are not callable or redeemable at the option of the company thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the
102 account of the holder of such depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository receipt. (b) In the case of an election under Section 12.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable United States Federal income tax law or the interpretation thereof, in either case to the effect that, and based thereon such opinion shall confirm that, the Noteholders will not recognize gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred. (c) In the case of an election under Section 12.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Noteholders will not recognize gain or loss for United States Federal income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to United States Federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and Covenant Defeasance had not occurred. (d) No Default or Event of Default (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit) shall have occurred and be continuing on the date of such deposit or, insofar as Section 6.01(h) are concerned with respect to the Company, 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). (e) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound. (f) The Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent provided for relating to either the Defeasance under Section 12.02 or the Covenant Defeasance under Section 12.03, as the case may be, have been complied with. Section 12.05. Deposited Money and U.S. Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. (a) Subject to the provisions of Section 7.04, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee pursuant to Section 12.04 in respect of such Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Noteholders, of all
103 sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. Money so held in trust shall not be subject to the provisions of this Article 12. (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 12.04 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 Noteholders. (c) Anything in this Article 12 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company any money or U.S. Government Obligations held by it as provided in Section 12.04 which, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (at the Company’s expense), are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance. Section 12.06. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 12.02 or 12.03 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article 12 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 12.02 or 12.03; provided, however, that if the Company makes any payment of principal of (and premium, if any) or interest on or Additional Amounts in respect of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Noteholders to receive such payment from the money held by the Trustee or the Paying Agent. ARTICLE 13 MISCELLANEOUS Section 13.01. Compliance Certificates and Opinions. (a) Upon any written application or request by the Company to the Trustee that the Trustee take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and, if so requested by the Trustee, 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 particular application or request as to which the furnishing of 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. (b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
104 (i) a statement substantially to the effect that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) 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; (iii) a statement substantially to the effect that, in the opinion of each such individual, such examination or investigation has been made as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. (c) With the delivery of this Indenture, the Company is furnishing to the Trustee, and from time to time thereafter may furnish, an Officer’s Certificate identifying and certifying the incumbency and specimen signatures of the Authorized Representatives. Until the Trustee receives a subsequent Officer’s Certificate, the Trustee shall be entitled to conclusively rely on the last such Officer’s Certificate delivered to it for purposes of determining the Authorized Representatives of the Company. Section 13.02. Form of Documents Delivered to Trustee. (a) 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 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. (b) 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 has reason to believe that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous or otherwise inaccurate. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate of, or representations by, an Authorized Representative of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or representations with respect to such matters are erroneous. (c) Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. (d) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
105 Section 13.03. Notices, etc. to Trustee. Any Act of Noteholders or other document required or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Trustee, the Company shall be deemed to have been made or given, as applicable, only if such notice is in writing and delivered personally, or by registered or certified first-class United States mail with postage prepaid and return receipt requested, or made, given or furnished in writing by confirmed telecopy or facsimile transmission, or by prepaid courier service to the appropriate party as set forth below: Trustee: Citibank, N.A. 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust - Telefónica Celular del Paraguay Senior Notes Telephone No.: (212) 816-5805 Facsimile No.: (212) 816-5527 Company: Telefónica Celular del Paraguay, S.A. Avda. Mcal. López c/ Tte. Insaurralde Fernando De La Mora, Paraguay Attention : Ramiro Pascual Telephone No.: +595-21-6189000 Email: [email protected] Any party may change its address by giving notice of such change in the manner set forth herein. Any notice given to a party by mail or by courier or by facsimile or other electronic transmission shall be deemed delivered upon receipt thereof (unless the party refuses to accept delivery, in which case the party shall be deemed to have accepted delivery upon presentation). In respect of this Indenture, the Trustee shall not have any duty or obligations to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on authorized instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties. Section 13.04. Notices to Noteholders; Waiver. (a) If and for so long as the Notes are represented by one or more Global Notes and interests therein are shown on the records of the Registered Depositary or other clearing agency appointed by the Company,
106 all notices to Noteholders will be delivered to the Registered Depositary for communication to each member of, or participant in, the Registered Depositary. (b) Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Noteholder affected by such event, at its address as it appears in the Note Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given. (c) Notices of redemption pursuant to Section 4.01, 4.02, 4.03 or Section 4.10 or an Offer to Purchase the Notes will be sufficiently given if made (i) by publication in a leading newspaper having a general circulation in The City of New York (which is expected to be the Wall Street Journal) and London (which is expected to be the Financial Times) and (ii) by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date or the Expiration Date, as the case may be, to each Noteholder to be notified, at his address appearing in the Note Register. Notices given by publication will be deemed given on the first date on which publication is made and notices by first-class mail, postage prepaid, will be deemed given five calendar days after mailing. (d) If the Company gives a notice or communication to Noteholders, it shall give a copy at the same time to the Trustee and, for so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such exchange so require, the Luxembourg Stock Exchange. For so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such exchange so require, the Company shall also cause a copy of such notice to be published in a daily newspaper with general circulation in Luxembourg (which is expected to be the Luxemburger Wort). If and so long as the Notes are listed on any other Notes exchange, notices will also be given in accordance with any applicable requirements of such Notes exchanges. Section 13.05. 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 13.06. Successors and Assigns. All covenants, agreements, representations and warranties in this Indenture by the Trustee and the Company shall bind and, to the extent permitted hereby, shall inure to the benefit of and be enforceable by their respective successors and assigns, whether so expressed or not. Section 13.07. Severability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and
107 enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 13.09. Legal Holidays. In any case where the Optional Redemption Date, the Early Tax Redemption Date or any Interest Payment Date with respect to any Note or of any installment of principal thereof or payment of interest thereon, or any date on which any defaulted interest is proposed to be paid, shall not be a Business Day, then (notwithstanding any other provision of this Indenture or such Note) payment of interest and/or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Optional Redemption Date, the Early Tax Redemption Date or on the Interest Payment Date, or on the date on which the defaulted interest is proposed to be paid, and, except as provided in any Supplemental Indenture setting forth the terms of such Note, if such payment is timely made, no interest shall accrue on account of such delay for the period from and after such Optional Redemption Date, Early Tax Redemption Date or Interest Payment Date, or date for the payment of defaulted interest, as the case may be, to the date of such payment. Section 13.10. Communication by Noteholders with other Noteholders. (a) The Company shall furnish or cause to be furnished to the Trustee at stated intervals of not more than six months, and at such other times as the Trustee may request in writing, all information in the possession or control of the Company, as to the names and addresses of the Noteholders, and the Trustee hereby agrees to preserve, in as current a form as is reasonably practicable, all such information so furnished to it or received by it in the capacity of Principal Paying Agent. (b) Within five business days after the receipt by the Trustee of a written application by any three or more Noteholders stating that the applicants desire to communicate with other Noteholders with respect to their rights under this Indenture or under the Notes, and accompanied by a copy of the form of proxy or other communication which such Noteholders propose to transmit, and by reasonable proof that each such Noteholder has owned a Note for a period of at least six months preceding the date of such application, the Trustee shall, at its election, either: (i) Afford to such Noteholders access to all information so furnished to or received by the Trustee; or (ii) Inform such Noteholders as to the approximate number of Noteholders according to the most recent information so furnished to or received by the Trustee, and as to the approximate cost of mailing to such Noteholders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to all such
108 Noteholders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing, unless within five days after such tender, the Trustee shall mail to such applicants, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Noteholders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. (c) The disclosure of any such information as to the names and addresses of the Noteholders in accordance with the provisions of this Section 13.10, regardless of the source from which such information was derived, shall not be deemed to be a violation of any existing law, or of any law hereafter enacted which does not specifically refer to this section, nor shall the Trustee be held accountable by reason of mailing any material pursuant to a request made under subsection (b) of this section. Section 13.11. Governing Law. This Indenture shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflicts of laws principles. For the avoidance of doubt, articles 84 to 94-8 of the Luxembourg law on commercial companies dated August 10, 1915 (as amended) (the “Luxembourg Companies Law”) are excluded. Section 13.12. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders. No director, officer, employee, incorporator, member or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Notes or this Indenture or for any claim based on, in respect of, or by reason of, such obligations. Each Noteholder by accepting a Note waives and releases all such liability. The waiver and release are an integral part of the consideration for issuance of the Notes. Section 13.13. Waiver of Jury Trial. THE COMPANY, THE TRUSTEE, THE PRINCIPAL PAYING AGENT AND THE LUXEMBOURG PAYING AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE TRUSTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF. Section 13.14. Waiver of Immunity. This Indenture and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Company the Principal Paying Agent, and the Luxembourg Paying Agent. Each of such Persons irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or
109 from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself of any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture or any document delivered pursuant hereto, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdiction, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 13.14 shall have the fullest scope permitted under the United States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act. Section 13.15. Submission to Jurisdiction, Waivers. (a) The Company, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent each irrevocably and unconditionally (i) submits itself and its property to, and agrees that any legal suit, action or proceeding against the Company brought by any Noteholder or the Trustee arising out of or based upon this Indenture may be instituted in the courts of the State of New York, sitting in the Borough of Manhattan, The City of New York, the courts of the United States for the Southern District of New York, appellate courts from any thereof and courts of its own corporate domicile, (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the non- exclusive jurisdiction of such courts in any such suit, action or proceeding. (b) The Company has appointed CT Corporation System, 111 Eighth Avenue, New York, NY 10011, as its authorized agent (the “Process Agent”) upon whom process may be served in any such action arising out of or based on this Indenture which may be instituted in any such court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company represents and warrants that the Process Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Process Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company. (c) Each of the Principal Paying Agent and the Luxembourg Paying Agent hereby irrevocably appoints and empowers the Trustee as its authorized agent to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceeding in any New York State court or United States Federal court sitting in The City of New York, New York, United States and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts. The Principal Paying Agent and the Luxembourg Paying Agent will take any and all action necessary to continue such designation in full force and effect and to advise the Company of any change of address of the Trustee; should the Trustee become unavailable for this purpose for any reason, the
110 Principal Paying Agent and the Luxembourg Paying Agent will promptly and irrevocably designate a new authorized agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c). Each of the Principal Paying Agent and the Luxembourg Paying Agent irrevocably consents and agrees to the service and any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 13.03 or to any other address of which it shall have given notice pursuant to Section 13.03 or to its Process Agent. Service upon the Principal Paying Agent and the Luxembourg Paying Agent or the Trustee as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Trustee to give any notice of such service to the Principal Paying Agent and the Luxembourg Paying Agent shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Section 13.16. Execution in Counterparts. This Indenture and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by telecopier or electronic transmission shall be effective as delivery of an original executed counterpart of this Indenture. Section 13.17. Entire Agreement. This Indenture, together with the Notes, and the Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.
A-1-1 EXHIBIT A-1 FORM OF RULE 144A GLOBAL NOTE RULE 144A GLOBAL NOTE THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF TELEFONICA CELULAR DEL PARAGUAY S.A. (THE “COMPANY”) THAT THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON WHO THE SELLER REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A) IN ACCORDANCE WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT SHALL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ONLY AT THE OPTION OF THE COMPANY. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH PARAGRAPH (5) ABOVE, THE ISSUER RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS, OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
A-1-2 TELEFÓNICA CELULAR DEL PARAGUAY S.A. 5.875% SENIOR UNSECURED NOTES DUE 2027 RULE 144A GLOBAL NOTE No. R-1 CUSIP No.: 87936V AB3 ISIN No.: US87936VAB36 Principal Amount: U.S.$ [ ] Initial Issuance Date: April 5, 2019 This Note is one of a duly authorized issue of Notes of Telefónica Celular del Paraguay S.A., a corporation (sociedad anónima) incorporated and existing under the laws of Paraguay (the “Company”); designated as its 5.875% Senior Unsecured Notes due 2027 (the “Notes”), issued in an initial aggregate principal amount of U.S.$300,000,000, under an indenture (the “Indenture”) dated as of April 5, 2019, among the Company, Citibank, N.A., as trustee (in such capacity, the “Trustee”), principal paying agent, note registrar and transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg (the “Luxembourg Paying Agent”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Noteholders, and of the terms upon which the Notes are authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The Company, for value received, hereby promises to pay to Cede & Co. or registered assigns, as nominee of The Depository Trust Company (“DTC”) and the holder of record of this Note (the “Holder” or “Noteholder”), the principal amount specified above in U.S. dollars on April 15, 2027 (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below. The Company promises to pay interest on the outstanding principal amount hereof from the Initial Issuance Date, or from the most recent payment date to which interest has been paid or duly provided for, semi-annually on April 15 and October 15 of each year (each an “Interest Payment Date”) (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing October 15, 2019, at an initial note rate equal to 5.875% per annum. Principal, interest and other amounts due on this Note on any Interest Payment Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the April 1 or October 1, as applicable, preceding the Interest Payment Date.
A-1-3 Payment of the principal of and interest and other amounts on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Note Register. In the event the date for any payment of the principal of or interest and other amounts on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months. This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The Notes are subject to redemption by the Company on the terms and conditions specified in the Indenture. If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes shall become or may be declared due and payable in the manner and with the effect provided in the Indenture. Modifications of the Indenture may be made by the Company and the Trustee only to the extent and in the circumstances permitted by the Indenture. The Notes shall be issued only in fully registered form, without coupons in denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee, the Note Registrar and any agent of the Company, as the case may be, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Note Registrar nor any agent thereof shall be affected by notice to the contrary. Unless the certificate of authentication hereon has been duly executed by the Trustee or its Authenticating Agent by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK. FOR THE AVOIDANCE OF DOUBT, ARTICLES 84 TO 94-8 OF THE LUXEMBOURG LAW ON COMMERCIAL COMPANIES DATED AUGUST 10, 1915 (AS AMENDED) (THE “LUXEMBOURG COMPANIES LAW”) ARE EXCLUDED.
A-1-4 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. Dated: TELEFÓNICA CELULAR DEL PARAGUAY S.A., as the Company By: Name: Title: By: Name: Title:
A-1-5 CERTIFICATE OF AUTHENTICATION This is one of the Notes referred to in the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: Authorized Officer Date:
A-1-6 ASSIGNMENT FORM For value received hereby sells, assigns and transfers unto (Please insert social security or other identifying number of assignee) (Please print or type name and address, including zip code, of assignee:) the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises. Date: Your Signature: (Sign exactly as your name appears on the face of this Note)
A-2-1 EXHIBIT A-2 FORM OF REGULATION S GLOBAL NOTE REGULATION S GLOBAL NOTE THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY OTHER APPLICABLE JURISDICTION.
A-2-2 TELEFÓNICA CELULAR DEL PARAGUAY S.A. 5.875% SENIOR UNSECURED NOTES DUE 2027 REGULATION S GLOBAL NOTE No. R-1 CUSIP No.: P90475 AB3 ISIN No.: USP90475AB31 Principal Amount: U.S.$ [ ] Initial Issuance Date: April 5, 2019 This Note is one of a duly authorized issue of Notes of Telefónica Celular del Paraguay S.A., a corporation (sociedad anónima) incorporated and existing under the laws of Paraguay (the “Company”); designated as its 5.875% Senior Unsecured Notes due 2027 (the “Notes”), issued in an initial aggregate principal amount of U.S.$300,000,000, under an indenture (the “Indenture”) dated as of April 5, 2019, among the Company, Citibank, N.A., as trustee (in such capacity, the “Trustee”), principal paying agent, note registrar and transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg (the “Luxembourg Paying Agent”), to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Noteholders, and of the terms upon which the Notes are authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The Company, for value received, hereby promises to pay to Cede & Co. or registered assigns, as nominee of The Depository Trust Company (“DTC”) and the holder of record of this Note (the “Holder” or “Noteholder”), the principal amount specified above in U.S. dollars on April 15, 2027 (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below. The Company promises to pay interest on the outstanding principal amount hereof from the Initial Issuance Date, or from the most recent payment date to which interest has been paid or duly provided for, semi-annually on April 15 and October 15 of each year (each an “Interest Payment Date”) (or if such date is not a Business Day, the next succeeding Business Day following such day), commencing October 15, 2019, at an initial note rate equal to 5.875% per annum. Principal, interest and other amounts due on this Note on any Interest Payment Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the April 1 or October 1, as applicable, preceding the Interest Payment Date. Payment of the principal of and interest and other amounts on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Note
A-1-3 Register. In the event the date for any payment of the principal of or interest and other amounts on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months. This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The Notes are subject to redemption by the Company on the terms and conditions specified in the Indenture. If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes shall become or may be declared due and payable in the manner and with the effect provided in the Indenture. Modifications of the Indenture may be made by the Company and the Trustee only to the extent and in the circumstances permitted by the Indenture. The Notes shall be issued only in fully registered form, without coupons in denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee, the Note Registrar and any agent of the Company, as the case may be, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Note Registrar nor any agent thereof shall be affected by notice to the contrary. Unless the certificate of authentication hereon has been duly executed by the Trustee or its Authenticating Agent by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK. FOR THE AVOIDANCE OF DOUBT, ARTICLES 84 TO 94-8 OF THE LUXEMBOURG LAW ON COMMERCIAL COMPANIES DATED AUGUST 10, 1915 (AS AMENDED) (THE “LUXEMBOURG COMPANIES LAW”) ARE EXCLUDED.
A-2-4 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. Dated: TELEFÓNICA CELULAR DEL PARAGUAY S.A. By: Name: Title: By: Name: Title:
A-2-5 CERTIFICATE OF AUTHENTICATION This is one of the Notes referred to in the within-mentioned Indenture. CITIBANK, N.A., as Trustee By: Authorized Officer Date:
A-2-6 ASSIGNMENT FORM For value received hereby sells, assigns and transfers unto (Please insert social security or other identifying number of assignee) (Please print or type name and address, including zip code, of assignee:) the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises. Date: Your Signature: (Sign exactly as your name appears on the face of this Note)
B-1 EXHIBIT B FORM OF AUTHENTICATION AND DELIVERY ORDER [Date] CITIBANK, N.A., as Trustee 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Ladies and Gentlemen: Pursuant to Section 2.2 of the Indenture dated as of April 5, 2019 (the “Indenture”) by and among Telefónica Celular del Paraguay S.A., as Company, Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent, and Banque Internationale à Luxembourg SA, as Luxembourg paying agent, you are hereby ordered in your capacity as Trustee to authenticate U.S.$ [ ] of the Company’s 5.875% Senior Unsecured Notes due 2027, in the manner provided in the Indenture in global form and in the amounts of U.S$ [ ] in respect of the Rule 144A Global Note (CUSIP No. 87936V AB3) and U.S.$[ ] in respect of the Regulation S Global Note (CUSIP No. P90475 AB3) heretofore duly executed by the proper Authorized Representative of the Company and delivered to you as provided in the Indenture and to hold the Notes in your capacity as custodian for The Depository Trust Company. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture. In rendering this Authentication and Delivery Order, we have read Section 2.02 of the Indenture and such other provisions of the Indenture as we have deemed relevant, and have examined and investigated such other matters as we have deemed necessary, to enable us to express an informed opinion as to whether the conditions precedent set forth in the Indenture relating to the delivery and authentication of the Notes have been complied with. Based upon the foregoing, in our opinion all conditions precedent to the delivery and authentication of the Notes contained in the Indenture have been complied with. Very truly yours, TELEFÓNICA CELULAR DEL PARAGUAY S.A. By: Name: Title:
C-1 EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS OR EXCHANGES OF RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE [Date] CITIBANK, N.A., as Trustee 480 Washington Boulevard, 30th Floor Jersey City, NJ 07310 Attention: Agency & Trust Re: Telefónica Celular del Paraguay S.A. 5.875% Senior Unsecured Notes due 2027 (the “Notes”) Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of April 5, 2019 (as amended and supplemented from time to time, the “Indenture”), among Telefónica Celular del Paraguay S.A. (the “Company”), as Company, Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent and Banque Internationale à Luxembourg SA, as Luxembourg paying agent, note registrar and transfer agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. In connection with our proposed sale of U.S.$ aggregate principal amount of the Notes [in the case of a transfer of an interest in a Restricted Global Note: which represent an interest in a Restricted Global Note beneficially owned by] [in the case of a transfer of a certificated Note: held in the name of] the undersigned (“Transferor”), we confirm that such sale has been effected pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, we represent that: (a) the offer of the Notes was not made to a Person in the United States; (b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any Person acting on our behalf reasonably believed that the transferee was outside the United States (within the meaning of Regulation S) or (ii) the transaction is being executed in, on or through the facilities of a designated off-shore securities market (within the meaning of Regulation S) and neither we nor any Person acting on our behalf knows that the transaction has been pre- arranged with a buyer in the United States;
C-2 (c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; (d) if the transfer is being effected in accordance with Rule 903 under the Securities Act, the requirements of Rule 903(b)(2) have been satisfied; (e) if the transfer is being effected in accordance with Rule 904 under the Securities Act, we are not a distributor of the Notes, an affiliate of the Company, an affiliate of any distributor of the Notes or a Person acting on behalf of any of the foregoing; (f) if the transfer is being effected in accordance with Rule 904 under the Securities Act and we are a dealer in Notes or have received a selling concession, fee or other remuneration in respect of the Notes transferred hereby, and the transfer is to occur during the “distribution compliance period” within the meaning of Regulation S, then the requirements of Rule 904(b)(1) have been satisfied; (g) if the transfer is being effected in accordance with Rule 904 under the Securities Act and we are an affiliate of the Company or of a distributor solely by virtue of holding a position as an officer or director of such Person, then requirements of Rule 904(b)(2) have been satisfied; (h) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (i) we are the beneficial owner of the principal amount of Notes being transferred. In addition, if the sale is made during the period ending forty (40) days after the original issuance of the Notes and the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, such beneficial interest will be held immediately after such transfer only in or through accounts maintained at the Registered Depositary by Euroclear or Clearstream (or by agent members acting for the account thereof).
C-3 You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Very truly yours, [Name of Transferor] By: Name: Title: [Authorized Signature]
D-1 EXHIBIT D FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE [Date] CITIBANK, N.A., as Trustee 480 Washington Boulevard, 30th Floor Jersey City, NJ 07310 Attention: Agency & Trust Re: Telefónica Celular del Paraguay S.A. 5.875% Senior Unsecured Notes due 2027 (the “Notes”) Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of April 5, 2019 (as amended and supplemented from time to time, the “Indenture”), among Telefónica Celular del Paraguay S.A. (the “Company”), as Company, Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent and Banque Internationale à Luxembourg SA, as Luxembourg paying agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. This letter relates to U.S.$ aggregate principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note in the name of (the “Holder”) through the Registered Depositary. [The Holder has requested a transfer of such beneficial interest in a Regulation S Global Note for a beneficial interest in a Rule 144A Global Note to be held in the name of (the “Transferee”) through the Registered Depositary.] [The Holder has requested an exchange of such beneficial interest in a Regulation S Global Note for a beneficial interest in a Rule 144A Global Note to be held in the name of the Holder through the Registered Depositary.] In connection with such request, the Holder does hereby certify that the [Transferee is a Qualified Institutional Buyer] [Holder reasonably believes that the Transferee is a Qualified Institutional Buyer, is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction]. This certificate and the statements contained herein are made for your benefit. [INSERT NAME OF HOLDER] By: Name: Title:
E-1 EXHIBIT E FORM OF QUALIFIED INSTITUTIONAL BUYER CERTIFICATION [Letterhead of Prospective Note Purchaser/Exchanger] [Date] CITIBANK, N.A., as Trustee 480 Washington Boulevard, 30th Floor Jersey City, NJ 07310 Attention: Agency & Trust Re: Telefónica Celular del Paraguay S.A. 5.875% Senior Unsecured Notes due 2027 (the “Notes”) Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of April 5, 2019 (as amended and supplemented from time to time, the “Indenture”), among Telefónica Celular del Paraguay S.A. (the “Company”), as Company, Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent, and Banque Internationale à Luxembourg SA, as Luxembourg paying agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. In connection with the undersigned’s purchase of the Notes, as set forth below, the undersigned hereby represents, acknowledges and agrees as follows: It is (A)(I) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933, as amended, and is acquiring the Notes in reliance on the exemption from Securities Act registration provided by Rule 144A thereunder. Name of Purchaser: By: Name: Title:
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE
among
Telefónica Celular del Paraguay S.A.E.,
as Company,
Citibank, N.A.,
as Trustee, Note Registrar, Transfer Agent and Principal Paying Agent,
and
Banque Internationale à Luxembourg SA,
as Luxembourg Paying Agent.
among
Telefónica Celular del Paraguay S.A.E.,
as Company,
Citibank, N.A.,
as Trustee, Note Registrar, Transfer Agent and Principal Paying Agent,
and
Banque Internationale à Luxembourg SA,
as Luxembourg Paying Agent.
Relating to 5.875% Senior Unsecured Notes due 2027
Dated as of January 28, 2020
#92758030v8
THIS FIRST SUPPLEMENTAL INDENTURE (this “First Supplemental Indenture”), dated as of January 28, 2020, among Telefónica Celular del Paraguay S.A.E., a corporation (sociedad anónima) incorporated and existing under the laws of Paraguay (the “Company”), Citibank, N.A., as trustee (in such capacity, the “Trustee”), principal paying agent, note registrar and transfer agent, and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg (the “Luxembourg Paying Agent”).
RECITALS
WHEREAS, the Company, the Trustee and the Luxembourg Paying Agent entered into an indenture, dated as of April 5, 2019 (as amended, supplemented or otherwise modified, the “Indenture”), relating to the Company’s 5.875% Senior Unsecured Notes due 2027 (the “Notes”) and pursuant to which the Company initially issued U.S.$300,000,000 aggregate principal amount of Notes (the “Initial Notes”);
WHEREAS, Section 2.03 of the Indenture provides that Additional Notes may be created and issued from time to time under the Indenture by the Company (subject to the Company’s compliance with Section 5.04 of the Indenture) without notice to or consent of the Holders and that such Additional Notes will be consolidated and treated as a single class for all purposes under the Indenture, including, without limitation, waivers, amendments, redemptions, and offers to purchase, with the Notes initially issued pursuant to the Indenture;
WHEREAS, pursuant to Section 10.02(e) of the Indenture, the Trustee and the Company are authorized to execute and deliver this First Supplemental Indenture without the consent of the Noteholders;
WHEREAS, the Company has duly authorized the issuance of Additional Notes and is, on the date hereof, issuing U.S.$250,000,000 in aggregate principal amount of its 5.875% Senior Unsecured Notes due 2027 under the Indenture (the “New Notes”);
WHEREAS, the Company has duly authorized the execution and delivery of this
First Supplemental Indenture to provide for the issuance of the New Notes and the authentication and delivery thereof by the Trustee; and
WHEREAS, all things necessary to make the New Notes, when executed by the Company and authenticated and delivered by the Trustee as provided in the Indenture,
the valid, binding and legal obligations of the Company, and to constitute a valid indenture and agreement according to its terms, have been done.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual covenants herein contained and intending to be legally bound, the parties to this First Supplemental Indenture hereby agree as follows:
Section 1. Capitalized terms used herein and not otherwise defined herein are used as defined in the Indenture.
Section 2. As of the date hereof, the Company shall issue the New Notes pursuant to the Indenture. The New Notes shall constitute Additional Notes issued pursuant to Section 2.03 of the Indenture and shall be consolidated and treated as a single class with the Initial Notes for all purposes under the
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Indenture, including, without limitation, waivers, amendments, redemptions, and offers to purchase. The New Notes shall have the same terms as to status, redemption and otherwise as the Initial Notes, except that interest shall accrue on the New Notes from October 15, 2019. The New Notes shall be issued on January 28, 2020 at a re-offer price of 106.375% of principal amount, plus accrued and unpaid interest, in the amount of U.S.$4,202,256.94 in the aggregate, for the period from and including October 15, 2019 up to but excluding January 28, 2020. The New Notes issued in the form of Global Notes will be issued under the same CUSIP/ISIN numbers as the Initial Notes (except that New Notes issued pursuant to Regulation S under the Securities Act will trade separately under different CUSIP/ISIN numbers until at least 40 days after the issue date of the New Notes and thereafter, subject to the terms hereof); it being understood that any New Notes issued in the form of a definitive Note may be exchanged for a beneficial interest in a Global Note in accordance with the provisions of the Indenture. The aggregate principal amount of the New Notes that may be authenticated and delivered pursuant to this First Supplemental Indenture shall be U.S.$250,000,000. Promptly following the termination of 40 days following the issue date of the New Notes, the Company shall cause the beneficial interests in New Notes in the form of Regulation S Global Notes to be exchanged for beneficial interests in the Initial Note Regulation S Global Note (CUSIP P90475 AB3) pursuant to the rules and procedures of the Registered Depositary. The Company shall deliver to the Trustee a Company Order to process such mandatory exchange, along with an Officer’s Certificate and Opinion of Counsel.
Section 3. This First Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflicts of laws principles. For the avoidance of doubt, articles 84 to 94-8 of the Luxembourg law on commercial companies dated August 10, 1915 (as amended) (the “Luxembourg Companies Law”) are excluded.
EACH OF THE COMPANY, THE TRUSTEE, THE PRINCIPAL PAYING AGENT AND THE LUXEMBOURG PAYING AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS FIRST SUPPLEMENTAL INDENTURE, THE INDENTURE OR THE NEW NOTES, THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, OR THE ACTIONS OF THE TRUSTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Section 4. As of the date hereof, the Company will issue, and the Trustee is directed to authenticate and deliver, the New Notes under the Indenture, substantially in the form as set forth in the applicable portion of Exhibit A to the Indenture.
Section 5. This First Supplemental Indenture may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this
First Supplemental Indenture by telecopier or electronic transmission shall be effective as delivery of an original executed counterpart of this First Supplemental Indenture.
Section 6. This First Supplemental Indenture is an amendment supplemental to the Indenture and the Indenture and this First Supplemental Indenture will henceforth be read together.
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Section 7. The Trustee accepts the amendment of the Indenture effected by this First Supplemental Indenture, but only upon the terms and conditions set forth in this First Supplemental Indenture. The Trustee makes no representation as to and shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this First Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company. All of the provisions contained in the Indenture in respect of the rights, privileges, immunities, powers, and duties of the Trustee shall be applicable in respect of this First Supplemental Indenture as fully and with like force and effect as though fully set forth in full herein. The Trustee shall not be accountable for the use or application by the Company of the New Notes or the proceeds thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the date first above written.
| TELEFÓNICA CELULAR DEL PARAGUAY S.A.E., as the Company | |||||
| By: | |||||
Name: [⦁] | |||||
Title: [⦁] | |||||
| By: | |||||
Name: [⦁] | |||||
Title: [⦁] | |||||
[Signature page to First Supplemental Indenture]
#92758030v8
| CITIBANK, N.A. solely in its capacity as Trustee, Principal Paying Agent, Note Registrar and Transfer Agent | |||||
| By: | |||||
| Name: Danny Lee | |||||
| Title: Senior Trust Officer | |||||
[Signature page to First Supplemental Indenture]
#92758030v8
| BANQUE INTERNATIONALE À LUXEMBOURG SA, as Luxembourg Paying Agent | |||||
| By: | |||||
| Name: Jean-Jacques Kinnen | |||||
| Title: Senior Manager | |||||
| By: | |||||
| Name: Biagio Grasso | |||||
Title: [⦁] | |||||
[Signature page to First Supplemental Indenture]
#92758030v8
i TABLE OF CONTENTS PAGE ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions ................................................................................................1 Section 1.02. Construction ...........................................................................................36 ARTICLE 2 THE NOTES Section 2.01. Designation ............................................................................................38 Section 2.02. Authentication and Delivery of Notes ....................................................38 Section 2.03. Aggregate Amount; Additional Notes ....................................................39 Section 2.04. ..........................................................39 Section 2.05. Form of the Notes ..................................................................................39 Section 2.06. Maturity of the Notes .............................................................................41 Section 2.07. Interest ...................................................................................................41 Section 2.08. Record Date ...........................................................................................41 Section 2.09. Issuance .................................................................................................41 Section 2.10. Denominations, etc ................................................................................41 Section 2.11. Execution of Notes .................................................................................42 Section 2.12. Registration; Restrictions on Transfer and Exchange ...........................42 Section 2.13. Mutilated, Destroyed, Lost and Stolen Notes ........................................49 Section 2.14. Payment of Interest; Interest Rights Preserved .....................................50 Section 2.15. Taxation .................................................................................................51 Section 2.16. Persons Deemed Owners; Etc ...............................................................53 Section 2.17. Cancellation ...........................................................................................53 Section 2.18. CUSIP and ISIN Numbers .....................................................................54 Section 2.19. Noteholder Lists .....................................................................................54 Section 2.20. Panamanian Note ..................................................................................54 Section 2.21. Repurchase of the Panamanian Notes ...................................................54 Section 2.22. No Mandatory Redemption or Sinking Fund .........................................55 ARTICLE 3 RESERVED ARTICLE 4 REDEMPTION Section 4.01. Tax Redemption .....................................................................................55 Section 4.02. Optional Redemption .............................................................................56 Section 4.03. Optional Redemption upon Equity Offerings of the Company ..............57 Section 4.04. Method and Effect of Redemption ..........................................................57 Section 4.05. Deposit of Redemption Price .................................................................59 Section 4.06. Notes Payable on Redemption Date ......................................................59
ii Section 4.07. Selection by Trustee of Notes to be Redeemed ......................................60 Section 4.08. Notes Redeemed in Part .........................................................................60 Section 4.09. Offer to Purchase ...................................................................................60 Section 4.10. Optional Redemption upon Certain Tender Offers ................................63 ARTICLE 5 COVENANTS OF THE COMPANY Section 5.01. Maintenance of Office or Agency ..........................................................63 Section 5.02. Notice of Defaults and Events of Default ...............................................64 Section 5.03. Compliance Certificates ........................................................................64 Section 5.04. Limitation on Debt .................................................................................64 Section 5.05. Limitation on Restricted Payments ........................................................67 Section 5.06. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries ............................................................................................71 Section 5.07. Listing ....................................................................................................73 Section 5.08. .................................................................73 Section 5.09. ..........73 Section 5.10. Limitation on Asset Dispositions ...........................................................74 Section 5.11. Transactions with Affiliates ...................................................................76 Section 5.12. [Reserved] ..............................................................................................77 Section 5.13. Payment of Taxes ...................................................................................77 Section 5.14. Provision of Financial Information .......................................................77 Section 5.15. Limited Condition Transaction ..............................................................78 Section 5.16. Limitation on Lines of Business .............................................................80 Section 5.17. Reporting and Payments to Regulatory, Stock Exchange and Clearing Agency ....................................................................................80 Section 5.18. Unrestricted Subsidiaries ......................................................................80 Section 5.19. Subsidiary Guarantors ...........................................................................80 Section 5.20. Release from Certain Covenants ...........................................................81 Section 5.21. Merger, Consolidations and Certain Sales of Assets of the Company ................................................................................................81 Section 5.22. Change of Control .................................................................................82 ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.01. Events of Default ....................................................................................82 Section 6.02. Acceleration of Maturity; Rescission and Annulment ...........................84 Section 6.03. Delay or Omission Not Waiver ..............................................................85 Section 6.04. Waiver of Past Defaults .........................................................................85 Section 6.05. Trustee May File Proofs of Claim .........................................................85 Section 6.06. Trustee May Enforce Claims Without Possession of Notes ...................86 Section 6.07. Application of Money Collected ............................................................86 Section 6.08. Limitation on Suits .................................................................................87
iii Section 6.09. Unconditional Right of Noteholders to Receive Principal and Interest and Other Amounts ...................................................................87 Section 6.10. Restoration of Rights and Remedies ......................................................87 Section 6.11. Rights and Remedies Cumulative ..........................................................87 Section 6.12. Control by Noteholders ..........................................................................88 Section 6.13. Undertaking for Costs ............................................................................88 Section 6.14. Waiver of Stay or Extension Laws .........................................................88 ARTICLE 7 CONCERNING THE TRUSTEE Section 7.01. Certain Rights and Duties of Trustee ....................................................89 Section 7.02. Trustee Not Responsible for Recitals; Etc .............................................91 Section 7.03. Trustee and Others May Hold Notes .....................................................91 Section 7.04. Moneys Held by Trustee or Paying Agent .............................................91 Section 7.05. Compensation of the Trustee .................................................................92 Section 7.06. Counsel ..................................................................................................93 Section 7.07. Persons Eligible for Appointment as Trustee ........................................93 Section 7.08. Resignation and Removal of Trustee; Appointment of Successor .........94 Section 7.09. Acceptance of Appointment by Successor Trustee .................................95 Section 7.10. Appointment of Authenticating Agent ....................................................96 Section 7.11. Appointment of Note Registrar, Paying Agents and Transfer Agent .....97 Section 7.12. Reports by Trustee .................................................................................98 Section 7.13. Waiver of Damages ................................................................................98 ARTICLE 8 CONCERNING THE HOLDERS Section 8.01. Acts of Noteholders ................................................................................99 Section 8.02. Notes Owned by Company and Affiliates Deemed Not Outstanding ...100 ARTICLE 9 RESERVED ARTICLE 10 SUPPLEMENTAL INDENTURES Section 10.01. Supplemental Indenture with Consent of Noteholders ........................100 Section 10.02. Supplemental Indentures Without Consent of Noteholders .................101 Section 10.03. Execution of Supplemental Indentures ................................................102 Section 10.04. Effect of Supplemental Indentures .......................................................102 Section 10.05. Reference in Notes to Supplemental Indentures ..................................102 ARTICLE 11 SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture .............................................102
iv Section 11.02. Application of Trust Money .................................................................103 ARTICLE 12 DEFEASANCE Section 12.01. ....104 Section 12.02. Defeasance and Discharge ..................................................................104 Section 12.03. Covenant Defeasance ..........................................................................104 Section 12.04. Conditions to Defeasance or Covenant Defeasance ............................104 Section 12.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions ..........................................................106 Section 12.06. Reinstatement .......................................................................................106 ARTICLE 13 MISCELLANEOUS Section 13.01. Compliance Certificates and Opinions ................................................106 Section 13.02. Form of Documents Delivered to Trustee ............................................107 Section 13.03. Notices, etc. to Trustee .........................................................................108 Section 13.04. Notices to Noteholders; Waiver ...........................................................109 Section 13.05. Effect of Headings and Table of Contents ...........................................109 Section 13.06. Successors and Assigns ........................................................................110 Section 13.07. Severability Clause ..............................................................................110 Section 13.08. Benefits of Indenture ............................................................................110 Section 13.09. Legal Holidays .....................................................................................110 Section 13.10. Communication by Noteholders with other Noteholders .....................110 Section 13.11. Governing Law ....................................................................................111 Section 13.12. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders ..................................................................111 Section 13.13. Waiver of Jury Trial .............................................................................111 Section 13.14. Waiver of Immunity ..............................................................................112 Section 13.15. Submission to Jurisdiction, Waivers ....................................................112 Section 13.16. Execution in Counterparts ...................................................................113 Section 13.17. Entire Agreement .................................................................................113 EXHIBIT A-1 Form of Rule 144A Global Note EXHIBIT A-2 Form of Regulation S Global Note EXHIBIT B Form of Authentication and Delivery Order EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers or Exchanges of Rule 144A Global Notes to Regulation S Global Notes EXHIBIT D Form of Certificate for Transfer or Exchange of Regulation S Global Note to Rule 144A Global Note EXHIBIT E Form of Qualified Institutional Buyer Certification EXHIBIT F Form of Panamanian Note EXHIBIT G Form of Written Statement for Cancellation of Panamanian Note(s)
1 Indenture October 28, 2019, among Cable Onda, S.A. Company sociedad anónima) incorporated and existing under the laws of Panama; Citibank, N.A., as trustee (in such capacity, the Trustee Internationale à Luxembourg Luxembourg Paying Agent W I T N E S S E T H: WHEREAS, the Company has duly authorized the issuance of its notes in such principal amount or amounts as may from time to time be authorized in accordance with this Indenture and is, on the date hereof, issuing $600,000,000 of its 4.500% Senior Notes due 2030 Notes WHEREAS, the Company has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Notes and the authentication and delivery thereof by the Trustee; WHEREAS, all things necessary to make the Notes, when executed by the Company and authenticated and delivered by the Trustee as provided in this Indenture, the valid, binding and legal obligations of the Company, and to constitute a valid indenture and agreement according to its terms, have been done; and WHEREAS, each of the parties hereto is entering into this Indenture for the benefit of the other parties and for the equal and ratable benefit of the Holders of the Notes. NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION Section 1.01. Definitions. The following capitalized terms shall have the meanings set forth below: Acquired Debt he Company or its Subsidiary: (i) Incurred and outstanding on the date on which a Subsidiary (a) was acquired by the Company or any of its Subsidiaries or (b) is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) the Company or its Subsidiary; or (ii) Incurred to provide all or part of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Subsidiary of the Company or was otherwise acquired by the Company or its Subsidiary; provided that, after giving pro forma effect to the transactions by which such Person became a Subsidiary of the Company or is merged, consolidated, amalgamated or
2 otherwise combined with the Company or its Subsidiary, (a) the Company would have been able to Incur $1.00 of additional Debt pursuant to Section 5.04(a), or (b) the Leverage Ratio would not be greater than such ratio before giving effect to such transactions. Acquired Debt shall be deemed to have been Incurred, with respect to clause (i) on the date such Person becomes a Subsidiary of the Company and, with respect to clause (ii) on the date of consummation of such acquisition of assets. Act en used with respect to any Noteholder, has the meaning set forth in Section 8.01. Additional Amounts Section 2.15(a). Additional Notes Section 2.03(b). Affiliate controlling or controlled by or under direct or indirect common control with such any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by correlative to the foregoing. Agent Note Registrar, Transfer Agent or Paying Agent. Agent Member Depositary. ASEP La Autoridad Nacional de los Servicios Públicos (The National Authority for Public Services) of Panama and any successor thereto. Asset Disposition disposition by the Company or any Restricted Subsidiary (including a consolidation or merger or other sale of any such Restricted Subsidiary with, into or to another Person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary of the Company, but excluding a disposition by a Restricted Subsidiary of the Company to the Company or a Restricted Subsidiary of the Company which is an 80% or more owned Subsidiary of the Company) of (i) qualifying shares and shares to be held by third parties to satisfy applicable legal requirements) or other ownership interests of a Restricted Subsidiary of the Company, (ii) substantially all of the assets of the Company or any Restricted Subsidiary representing a division or line of business or (iii) other assets or rights of the Company or any Restricted Subsidiary outside of the ordinary course of business; provided that the Asset Disposition (a) any disposition of Tower Equipment, including any Sale/Leaseback Transaction in connection therewith; provided that any cash or Cash Equivalents received
3 in connection with such disposition or Sale/ Leaseback Transaction must be applied in accordance with Section 5.10; (b) a transfer of assets between or among the Company and any of its Restricted Subsidiaries; (c) the issuance of Capital Stock by a Subsidiary of the Company to the Company or to another Subsidiary of the Company; (d) dispositions of assets of the Company or any Restricted Subsidiary, or the issuance or sale of Capital Stock of any Restricted Subsidiary in a single transaction or series of related transactions with an aggregate fair market value in any calendar year for all such dispositions, issuances or sales under this clause (d) of less than the greater of $25.0 million and 3.0% of Total Assets (with unused amounts in any calendar year being carried over to the next succeeding year); (e) any disposition of Capital Stock of a Subsidiary of the Company pursuant to an agreement or other obligation with or to a Person (other than the Company or its Subsidiary) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition; (f) the sale, lease or other transfer of products, services, accounts receivable, inventory or other assets in the ordinary course of business and any sale or other disposition of damaged, surplus, worn-out or obsolete assets; (g) dispositions in connection with Permitted Liens; (h) disposals of assets, rights or revenue not constituting part of the Related Business and other disposals of non-core assets acquired in connection with any acquisition permitted under this Indenture; (i) licenses and sublicenses of the Company or any of its Subsidiaries in the ordinary course of business; (j) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business; (k) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings; (l) the granting of Liens not prohibited by Section 5.08; (m) a transfer or disposition of assets that is governed by Section 5.21; (n) a transfer or disposition of assets that is governed by Section 5.05;
4 (o) the sale or other disposition of cash or Cash Equivalents; (p) the foreclosure, condemnation or any similar action with respect to any property or other assets; (q) sales of accounts receivable and related assets or an interest therein of the type Entity, and Investments in a Receivables Entity consisting of cash or Securitization Obligations; (r) any disposition or expropriation of assets or Capital Stock which the Company or any of its Subsidiaries is required by, or made in response to concerns raised by, a regulatory authority or court of competent jurisdiction; (s) any disposition of Capital Stock, Debt or other securities of an Unrestricted Subsidiary; (t) any disposition of assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by the Company or any of its Subsidiaries to such Person; (u) any disposition of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; provided that any cash or Cash Equivalents received in such disposition is applied in accordance with the requirements of Section 5.10; (v) contractual arrangements under long-term contracts with customers entered into by the Company or a Restricted Subsidiary in the ordinary course of business which are treated as sales for accounting purposes; provided that there is no transfer of title in connection with such contractual arrangement; (w) any sale or disposition with respect to property built, repaired, improved, owned or otherwise acquired by the Company or any of its Subsidiaries pursuant to customary Sale/Leaseback Transactions, asset securitizations and other similar financings permitted by this Indenture; (x) any dispositions constituting the surrender of tax losses by the Company or any of its Subsidiaries (1) to the Company or a Subsidiary of the Company; (2) in order to eliminate, satisfy or discharge any tax liability of any Person that was formerly a Subsidiary of the Company which has been disposed of pursuant to a disposal permitted by the terms of this Indenture, to the extent that the Company or a Subsidiary of the Company would have a liability (in the form of an indemnification obligation or otherwise) to one or more Persons in relation to such tax liability if not so eliminated, satisfied or discharged; and (y) Permitted Asset Swaps.
5 Auction Purchaser purchase Notes through the PSE Auction. Authenticating Agent Section 7.10(a). Authorized Agent Agent, Authenticating Agent or Note Registrar or other agent appointed by the Company or the Trustee in accordance with this Indenture to perform any function that this Indenture authorizes the Trustee or such agent to perform. Authorized Officer who shall be duly authorized by appropriate corporate action on the part of the Trustee to authenticate Notes. Authorized Representative chief executive officer, president, chief operating officer, chief financial officer or any vice president or any member of its Board of Directors or any other governing body of such entity. The Company shall provide the Trustee with a list of Authorized Representatives on the Issue Date. Beneficial Owner -3 and Rule 13d-5 under the Exchange Act, except that in calculating the Beneficial Ownership ht to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The Beneficially Owns Beneficially Owned Board of Directors Board of Directors of such corporation or any committee of that board duly authorized to act for it, and when used with respect to a limited liability company, partnership or other entity other than a corporation, any Person or body authorized by the organizational documents or by the voting equity owners of such entity to act for them. Board Resolution Company certified by the President and Secretary of the Company to have been duly adopted by the Board of Directors or a committee thereof and to be in full force and effect on the date of such certification, and delivered to the Trustee. Business Day which is not a day on which banking institutions in the Borough of Manhattan, the City of New York, in London, England, or in Panama are authorized or obligated by law or executive order to close. Capital Lease Obligation other payment amounts under a lease of real or personal property of such Person which is required to be classified and accounted for as a capital lease on the face of a balance sheet of such Person in accordance with IFRS. The Stated Maturity of such obligation shall be
6 the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of Debt represented by such obligation shall be the capitalized amount thereof that would appear on the face of a balance sheet of such Person in accordance with IFRS. Capital Stock all shares, interests, participation or other equivalents (however designated) of corporate stock or other equity participation, including partnership interests, whether general or limited, of such Person. Cash Equivalents son: (i) (a) Government Securities and (b) any direct obligations of, or obligations guaranteed by, a member of the European Union for the payment of which obligations or guarantee the full faith and credit of such member of the European Union is pledged and which have a remaining weighted average life to maturity of not more than one year from the date of Investment therein; (ii) term deposit accounts (excluding current and demand deposit accounts), certificates of deposit and Eurodollar time deposits and money market deposits and Revolving Credit Facility, (b) any bank located in Panama and any of its respective Affiliates, provided, in each case in this subclause (b), that any such bank or Affiliate has no less than an Investment Grade international rating or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act), (c) a bank or trust company which is organized under the laws of the United States of America, any state thereof, the United Kingdom, Panama, Switzerland, Canada, Australia or any member state of the European Union, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $100.0 million (or the - such similar equivalent rating) or higher by at least one nationally recognized statistical rating organization (as defined in Rule 436 under the Securities Act), or (d) any money market fund sponsored by a U.S. registered broker dealer or mutual fund distributor; (iii) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (ii)(a) and (b) entered into with any financial institution meeting the qualifications specified in clause (ii)(b) above; (iv) commercial paper having one of the two highest ratings obtainable from either of the Rating Agencies and in each case maturing within 365 days after the date of acquisition; (v) money market mutual funds at least 95% of the assets of which constitute Cash Equivalents of the types described in clauses (i) through (iv) of this definition; (vi) with respect to any Person organized under the laws of, or having its principal business operations in, a jurisdiction outside the United States, the United Kingdom or the European Union, those Investments that are of the same type as investments in
7 clauses (i), (iii) and (iv) of this definition except that the obligor thereon is organized under the laws of the country (or any political subdivision thereof) in which such Person is organized or conducting business; and (vii) up to $2.0 million in aggregate of other Investments held by the Company or its Restricted Subsidiaries. Cash Management Loans management and cash pooling arrangements between the Restricted Group and Millicom and its Subsidiaries in the ordinary course of business. Change in Law Change of Control whereby (i) any Person or group of Persons acting in concert (which does not have control of the Company at the date hereof) acquires control of the Company (whether directly or indirectly), provided, however, that this clause shall not be triggered if such control is acquired by a Person or Persons who are themselves directly or indirectly controlled by Millicom or if such control is acquired through the acquisition of control of Millicom or (ii) all or substantially all of the assets or business of the Company are sold. 50% of the Voting Stock of such Person, the power to appoint and/or remove all or a majority of the members of the board of directors of such Person or otherwise directly or indirectly to control or have the power to control the affairs and policies of such Person. Change of Control Triggering Event Change of Control has occurred and a Rating Decline occurs. Clearstream Société Anonyme, Luxembourg. Code 1986, as amended. Commission time constituted, created under the Exchange Act, or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the U.S. Trust Indenture Act of 1939, then the body performing such duties at such time. Common Stock 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 such Person, to shares of Capital Stock of any other class of such Person. Company means the party named as such in the preamble to this Indenture until a successor replaces it and, thereafter, means the successor. Company Order Company by one or more of its Authorized Representatives delivered to the Trustee and,
8 in the case of an Company Order given pursuant to Section 2.02(a), substantially in the form of Exhibit B. Comparable Treasury Issue ited States Treasury security selected by the Independent Investment Banker that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities with a maturity of January 30, 2025. Comparable Treasury Price the average of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) on the third Business Day preceding that redemption date, as set forth in the daily statistical release designated H.l5 (or any successor release) published by the Board of Governors of the U.S. Federal Reserve ch release (or any successor release) is not published or does not contain such prices on such Business Day, the average of the Reference Treasury Dealer Quotations for that redemption date. Consolidated EBITDA loss of the Restricted Group, as such amount is determined in accordance with IFRS, plus the sum of the following amounts, in each case, without double counting (losses shall be added (as a positive number) and gains shall be deducted, in each case, to the extent such amounts were included in calculating operating profit): (i) depreciation and amortization expenses; (ii) the net loss or gain on the disposal and impairment of assets; (iii) share-based compensation expenses; (iv) on, other non-cash charges reducing operating profit (provided that if any such non-cash charge represents an accrual of or reserve for potential cash charges in any future period, the cash payment in respect thereof in such future period shall reduce operating profit to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period) less other non-cash items of income increasing operating income (excluding any such non-cash item of income to the extent it represents (a) a receipt of cash payments in any future period, (b) the reversal of an accrual or reserve for a potential cash item that reduced operating income in any prior period and (c) any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase operating income in such prior period); (v) any material extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge, including any charges or reserves in respect of any restructuring, redundancy, relocation, refinancing, integration or severance or other post- employment arrangements, signing, retention or completion bonuses, transaction costs, acquisition costs, disposition costs, business optimization, information technology implementation or development costs, costs related to governmental investigations and curtailments or modifications to pension or postretirement benefits schemes, litigation or
9 any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events); (vi) financial statements pursuant to IFRS (including inventory, property, equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items) attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated acquisition or joint venture Investment or the amortization or write-off or write-down of amounts thereof, net of taxes; (vii) any reasonable expenses, charges or other costs related to any Equity Offering, Investment, acquisition, disposition, recapitalization or the Incurrence of any Debt, in each case, as determined in good faith by a responsible financial or accounting officer of the Company; (viii) any gains or losses on associates; (ix) any unrealized gains or losses due to changes in the fair value of equity Investments; (x) any unrealized gains or losses due to changes in the fair value of Interest Rate, Currency or Commodity Price Agreements; (xi) any unrealized gains or losses due to changes in the carrying value of put options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary of the Company, joint venture or associate; (xii) any unrealized gains or losses due to changes in the carrying value of call options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary of the Company, joint venture or associate; (xiii) any net foreign exchange gains or losses; (xiv) cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies; (xv) accruals and reserves that are established or adjusted within twelve months after the closing date of any acquisition that are so required to be established or adjusted as a result of such acquisition in accordance with IFRS; (xvi) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the Company or a Restricted Subsidiary has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable
10 event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period); (xvii) the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets; (xviii) any net gain (or loss) realized upon any Sale/Leaseback Transaction that is not sold or otherwise disposed of in the ordinary course of business, determined in good faith by a responsible financial or accounting officer of the Company; (xix) the amount of loss on the sale or transfer of any assets in connection with an asset securitization program, receivables factoring transaction or other receivables transaction (including, without limitation, a Qualified Receivables Transaction); and (xx) Specified Legal Expenses. For the purposes of calculating Consolidated EBITDA for any period, as of such date of determination: (1) if, since the beginning of such period the Company or any Restricted Subsidiary has made any Asset Disposition or disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a Sale calculation to be made hereunder, then Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period; (2) if, since the beginning of such period the Company or any Restricted Subsidiary (by merger or otherwise) will have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquires any company, any business, or any group of assets constituting an operating unit of a business (any such Purchase connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period; (3) if, since the beginning of such period any Person (that became a Restricted Subsidiary or was merged with or into the Company or any Restricted Subsidiary since the beginning of such period) will have made any Sale or any Purchase that would have required an adjustment pursuant to clauses (1) or (2) above if made by the Company or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period, including anticipated synergies and cost savings as if such Sale or Purchase occurred on the first day of such period;
11 (4) whenever pro forma effect is applied, the pro forma calculations will be as determined in good faith by a responsible financial or accounting officer of the Company (including in respect of anticipated synergies and cost savings) as though the full effect of synergies and cost savings were realized on the first day of the relevant period and shall also include the reasonably anticipated full run rate cost savings effect (as calculated in good faith by a responsible financial or chief accounting officer of the Company) of cost savings programs that have been initiated by the Company or its Subsidiaries as though such cost savings programs had been fully implemented on the first day of the relevant period; provided that if the aggregate amount of such anticipated synergies and cost savings exceed 5.0% of Consolidated EBITDA (calculated without reference to the applicable Purchase or Sale), such amounts are confirmed by a reputable, independent third party advisor; (5) for the purposes of determining the amount of Consolidated EBITDA under this definition denominated in a foreign currency, the Company may, at its option, calculate the U.S. Dollar equivalent amount of such Consolidated EBITDA based on either (i) the weighted average exchange rates for the relevant period used in the consolidated financial statements of the Company for such relevant period or (ii) the relevant currency exchange rate in effect on the Issue Date; and (6) the amount of any fees payable by any person in the Restricted Group to another person in the Restricted Group or Millicom or any of its Subsidiaries in connection with any services rendered (including, without limitation, any Value Creation Fees and similar fees) shall be excluded. For the purpose of calculating the Consolidated EBITDA of the Company, any Joint Venture Consolidated EBITDA shall be added to the amount determined in accordance with the foregoing. Consolidated Interest Expense expense included in a consolidated income statement (without deduction of interest income) of the Company and its Restricted Group for such period calculated on a consolidated basis in accordance with IFRS, including without limitation or duplication (or, to the extent not so included, with the addition of), (i) the amortization of Debt or similar facilities; (iii) fees with respect to interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements; (iv) Preferred Stock dividends (other than with respect to Redeemable Stock) declared and paid or payable; (v) accrued Redeemable Stock dividends, whether or not declared or paid; and (vi) interest on Debt guaranteed by the Company or any member of its Restricted Group. Capital Lease Obligations, or (b) interest on Debt owed to Millicom or any Subsidiary of Millicom. Corporate Trust Office Registrar at which the corporate trust business of the Trustee or Note Registrar, as the
12 case may be, shall at any particular time be principally administered, which at the time of the execution of this Indenture (a) for Note transfer/surrender purposes, is located at 480 Washington Boulevard, 30th Floor, Jersey City, New Jersey 07310, Facsimile: (973) 461- 7191 or (973) 461-7192, Attention: Agency & Trust - Cable Onda S.A., and (b) for all other purposes, is located at 388 Greenwich Street, New York, New York 10013, Facsimile: (212) 816-5527, Attention: Agency & Trust Cable Onda S.A. Covenant Defeasance Section 12.03. Credit Facility purchase agreement, indenture, purchase money financing, commercial paper facility or overdraft facility with banks or other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Debt, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended, in whole or in part from time to time, and in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including, but not limited to, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents). Without Credit Facility agreement or instrument (i) changing the maturity of any Debt Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Company as additional borrowers or guarantors thereunder, (iii) increasing the amount of Debt Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof. Debt is to all or a portion of the assets of such Person and whether or not contingent: (i) the principal of and premium, if any, in respect of every obligation of such Person for money borrowed; (ii) the principal of and premium, if any, in respect of every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments; (iii) every acceptances or similar facilities issued for the account of such Person (but only to the extent such obligations are not reimbursed within 30 days following receipt by such Person of a demand for reimbursement); and (iv) the principal component of every obligation of the type referred to in clauses (i) through (iii) of another Person and all dividends of another Person the payment of which, in either case, such Person has Guaranteed or is responsible or liable for, directly or indirectly, as obligor, Guarantor or mination as used herein represented by (1) any Debt issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with IFRS, (2) any Redeemable Stock, shall be the maximum fixed redemption or repurchase price in respect thereof, and (3) any amount of Debt that has been cash-collateralized, to
13 the extent so cash-collateralized, shall be excluded from any calculation of Debt. Notwithstanding anything else to the contrary, for all purposes under this Indenture, the amount of Debt Incurred, repaid, redeemed, repurchased or otherwise acquired by a Subsidiary of the Company shall equal the liability in respect thereof determined in accordance with IFRS and reflected on financial position. Debt (a) Cash Management Loans; (b) any liability of the Company or any of its Subsidiaries attributable to a synthetic instrument or any other arrangement or agreement to the extent such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS and recorded as a current financial position; (c) any Restricted MFS Cash; (d) any liability of the Company attributable to a put option or similar instrument, arrangement or agreement entered into after the Issue Date granted by the Company relating to an interest in any other entity, in each case to the extent such option has not been exercised or such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS, and recorded as a current l financial position; (e) any standby letter of credit, performance bond or surety bond provided by the Company or any of its Subsidiaries that is customary in the Related Business to the extent such letters of credit or bonds are not drawn upon or, if and to the extent drawn upon, are honored in accordance with their terms; (f) any deposits or prepayments received by the Company or a Subsidiary of the Company from a customer or subscriber for its service and any other deferred or prepaid revenue; (g) any obligations to make payments in relation to earn outs; (h) Debt which is in the nature of equity (other than Redeemable Stock) or equity derivatives; (i) Capital Lease Obligations or operating leases; (j) Receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any debt in respect of Qualified Receivables Transactions, including without limitation guarantees by a Receivables Entity of the obligations of another Receivables Entity;
14 (k) pension obligations or any obligation under employee plans or employment agreements; (l) other Debt; (m) any payments or liability for assets acquired or services supplied deferred (including trade payables) in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied; (n) the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Redeemable Stock or, with respect to any Subsidiary, any Preferred Stock (including, in each case, any accrued dividends); (o) any Debt (contingent or otherwise) which, when incurred, is without recourse to the Company or any Restricted Subsidiary, as applicable; and (p) the net obligations of such Person under any Interest Rate, Currency or Commodity Price Agreement. Default means an event that with the passing of time or the giving of notice, or both would constitute an Event of Default. Defaulted Interest Section 2.14(b). Defeasance Section 12.02. DTC Early Tax Redemption Section 4.01(a). Early Tax Redemption Date Section 4.01(c). Early Tax Redemption Price Section 4.01(c). Equity Offering Holding Company of the Company pursuant to which the Net Cash Proceeds are contributed to the Company in the form of a subscription for, or a capital contribution in respect of, Qualified Capital Stock of the Company. Euroclear System, N.V. Euro MTF embourg Stock Exchange. Event of Default Section 6.01.
15 Excess Proceeds . Excess Proceeds Offer Exchange Act and in effect from time to time. Excluded Additional Amounts Section 2.15(a). Excluded Contributions from: (i) contributions to its common equity capital; (ii) any stockholder loans; or (iii) the sale (other than to a Subsidiary of the Company or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of the Company or any of its Subsidiaries) of Capital Stock (other than Redeemable Stock) of the Company; Certificate executed by the principal financial officer of the Company on the date such capital contributions are made or the date such equity interests are sold, as the case may be. Expiration Date Section 4.09(b). FATCA First Redemption Date January 30, 2025. Fiscal Year each calendar year, subject to modification from time to time which shall be promptly notified to the Trustee in writing. Fitch itch Ratings, Inc. and its successors. GAAP Global Note the Registered Depositary (or its nominee), as depositary for the beneficial owners thereof, including any Rule 144A Global Note or any Regulation S Global Note. Government Securities by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged and which have a remaining weighted average life to maturity of not more than one year from the date of Investment therein.
16 Governmental Authority body, any court, tribunal or authority or any public legal entity or public agency of Panama or the United States or any other jurisdiction whether created by federal, provincial or local government, or any other legal entity now existing or hereafter created, or now or hereafter controlled, directly or indirectly, by any public legal entity or public agency of any of the foregoing. Gradation change to another + - Categories (e.g., a decline from BB+ to BB would constitute a decrease of one tegories (e.g., a decline from Ba1 to Ba2 would constitute a decrease of one Gradation), or (iii) the Guarantee such Person guaranteeing, or having the economic effect of guaranteeing, any Debt of and including, without limitation, any obligation of such Person, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Debt, (ii) to purchase property, securities or services for the purpose of assuring the holder of such Debt of the payment of such Debt, or (iii) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so , provided, however, that the Guarantee by any Person shall not include endorsements by such Person for collection or deposit, in either case, in the ordinary course of business. Holding Company legally and Beneficially Owns more than 50% of the Voting Stock and/or Capital Stock of another Person, either directly or through one or more Subsidiaries. IFRS the International Accounting Standards Board or any successor board or agency as in effect on the Issue Date; provided that the Company may, at any time, irrevocably elect by written notice to the Trustee to use IFRS as in effect from time to time, and, upon such notice, references herein to IFRS shall thereafter be construed to mean IFRS as in effect from time to time. The Company also may, at any time, irrevocably elect by written notice to the Trustee to use GAAP as in effect from time to time in lieu of IFRS and, upon such notice, references herein to IFRS shall thereafter be construed to mean GAAP as in effect from time to time. Incur create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other obligation, including by acquisition of Subsidiaries (the Debt of any other Person becoming a Subsidiary of such
17 Person being deemed for this purpose to have been incurred at the time such other Person becomes a Subsidiary), or the recording, as required pursuant to IFRS or otherwise, of any su foregoing); provided, however, that a change in IFRS that results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt. Indebtedness present, future, actual or contingent) pursuant to an agreement or instrument involving or evidencing money borrowed or received, the advance of credit, a conditional sale or transfer with recourse or with an obligation to repurchase or pursuant to a lease with substantially the same economic effect as any such agreement or instrument and which, under IFRS, would constitute a capitalized lease obligation. Indenture Independent Investment Banker Initial Purchasers Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, BNP Paribas Securities Corp., Morgan Stanley & Co. LLC and Scotia Capital (USA) Inc., acting as such pursuant to the Purchase Agreement. Interest Payment Date Section 2.07. Interest Period ending on the day before the next Interest Payment Date, or, in the case of the initial Interest Period, the period beginning on the Issue Date and ending on the day before the first Interest Payment Date. Interest Rate, Currency or Commodity Price Agreement means any forward contract, futures contract, swap, option or other financial agreement or arrangement (including, without limitation, caps, floors, collars and similar agreements) relating to, or the value of which is dependent upon, interest rates, currency exchange rates or commodity prices or indices (excluding contracts for the purchase or sale of goods in the ordinary course of business). Intergroup Subordinated Loans ans (a) Debt of the Restricted Group owed to Millicom or any of its Subsidiaries (other than the Restricted Group) and (b) Debt of Millicom or any of its Subsidiaries (other than the Restricted Group) owed to any of the Restricted Group that, in each case, (1) will not have the benefit of any negative pledge covenant, collateral or security interest, (2) the terms of which provide that, in the event that (a) an installment of interest with respect to such Debt is not paid on the applicable interest payment date or (b) the principal of, or premium, if any, on any such Debt is not paid on the stated maturity or other date set for redemption, then the obligation to make such payment on such interest payment date, maturity date or other redemption date will not be a default under such Debt until after the maturity date of the Notes, and (3) the
18 terms of which provide that no amount will be payable in bankruptcy, liquidation or any similar proceeding with respect to the Person Incurring such Debt until all claims of senior creditors of such Person, including, without limitation, the Holders of the Notes, admitted in such proceeding have been satisfied. Investment extension of credit or capital contribution (by means of transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise) to, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person, including any payment on a Guarantee of any obligation of such other Person, but shall not include (a) trade accounts receivable in the ordinary course of business on credit terms made generally available to the customers of such Person, or (b) commission, travel, payroll, entertainment, relocation and similar advances to officers and employees and profit sharing and other employee benefit plan contributions made in the ordinary course of business. Investment Grade - or above in the case of Fitch (or its equivalent under any successor Rating Categories of Fitch), (ii) Baa3 or above, in the and (iii) the equivalent in respect of the Rating Categories of any other Rating Agencies. Issue Date November 1, 2019. Joint Venture Consolidated EBITDA of (i) the Consolidated EBITDA of any joint venture (determined in good faith by a responsible financial or accounting officer of the Company on the same basis as provided n was to such joint venture) whose financial results are not consolidated with those of the Company in accordance with IFRS and (ii) a percentage equal to the direct equity ownership percentage of the Company and/or its Subsidiaries in the Capital Stock of such joint venture and its Subsidiaries. LatinClear Law ordinance, treaty, order, decree, judgment, decision, certificate, holding, or injunction, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority charged with the interpretation or administration thereof. LCT Election LCT Test Date Legend Section 2.12(j).
19 Leverage Ratio, Incurrence) of Debt, means the ratio of (i) the consolidated principal amount of Debt of the Company and its Restricted Group outstanding as of the most recent available quarterly or annual balance sheet, after giving pro forma effect to (a) the Incurrence of such Debt and any other Debt Incurred since such balance sheet date, (b) the receipt and application of the proceeds thereof and (c) (without duplication) the repayment, redemption or repurchase of any other Debt since such balance sheet date, to (ii) Consolidated EBITDA for the last four full fiscal quarters prior to the Incurrence of such Debt for which consolidated financial statements are available, determined on a pro forma basis as if any such Debt had been Incurred and the proceeds thereof had been applied, or such other Debt had been repaid, redeemed or repurchased, as applicable, at the beginning of such four fiscal quarter period. Lien mortgage, pledge, security interest, lien, charge, encumbrance, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing). Limited Condition Transaction each case, by one or more of the Company and its Restricted Subsidiaries of any assets, business or Person whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment. Luxembourg Paying Agent Agent in the preamble to this Indenture and its successors and assigns, according to Section 7.12(b). Majority Noteholders principal amount of the Notes then Outstanding at any time. Market Capitalization and outstanding shares of Capital Stock of the Company on the date of the declaration of the relevant dividend, multiplied by (ii) the arithmetic mean of the closing prices per share of such Capital Stock for the 30 consecutive trading days immediately preceding the date of the declaration of such dividend. Material Subsidiary -02(w) of Regulation S-X under the Securities Act of 1933, as amended in effect on the date hereof. Maturity respect to any Note, means the date on which the principal of such Note becomes due and payable as therein provided or as provided in
20 this Indenture, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise. Millicom and its successors. s Service, Inc. and its successors. Net Available Proceeds marketable cash equivalents received (including by way of sale or discounting of a note, installment receivable or other receivable, but excluding any Related Assets and other consideration received in the form of assumption by the acquiror of Debt or other obligations relating to such properties or assets) therefrom by the Company or any Restricted Subsidiary, net of (i) all legal, title and recording tax expenses, commissions and other fees and expenses Incurred and all federal, state, provincial, foreign and local taxes required to be accrued as a liability as a consequence of such Asset Disposition; (ii) all payments made by the Company or any Restricted Subsidiary, on any Debt which is secured by such assets in accordance with the terms of any Lien upon or with respect to such assets or which must by the terms of such Debt or Lien, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition; (iii) all distributions and other payments made to result of such Asset Disposition; and (iv) appropriate amounts to be provided by the Company or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS, against any liabilities associated with such assets and retained by the Company or any Restricted Subsidiary, as the case may be, after such Asset Disposition, including, without limitation, liabilities under any indemnification obligations and severance and other employee termination costs associated with such Asset Disposition, in each case as determined by the Board of Directors, in its reasonable good faith judgment evidenced by a resolution of the Board of Directors filed with the Trustee; provided, however, that any reduction in such reserve within twelve months following the consummation of such Asset Disposition will be treated for all purposes of this Indenture and the Notes as a new Asset Disposition at the time of such reduction with Net Available Proceeds equal to the amount of such reduction. Net Cash Proceeds any Incurrence of Debt, means the cash proceeds of such issuance or sale or such fees, listing fees, discounts or commissions and brokerage, consultant and other fees, expenses and charges actually Incurred in connection with such issuance or sale or such Incurrence and net of taxes paid or payable (in the good faith determination of the Company) in connection with such issuance or sale or such Incurrence (including any repatriation of the proceeds of such sale or Incurrence). Non-Permitted Holder Section 2.12(n). Non-U.S. Person U.S. person Regulation S under the Securities Act.
21 Note Guarantee Noteholder Holder the Note Register. Note Rate Section 2.07. Note Register Section 2.12(a). Note Registrar Section 2.12(a). Notes Offer Section 4.09(b). Offer to Purchase Section 4.09(a). Offering Memorandum the Notes dated as of October 28, 2019. of the Board, any Director, the Chief Executive Officer, the Chief Operating Officer, any Senior Vice President, or the Secretary of the Board of the Company, and delivered to the Trustee. Opinion of Counsel requirements of Section 13.01 from any Person either expressly referred to herein or otherwise reasonably satisfactory to the Trustee which may include, without limitation, counsel for the Company, whether or not such counsel is an employee of the Company. Optional Redemption the Company as set forth in Sections 4.02, 4.03 and 4.10. Optional Redemption Date to Sections 4.02, 4.03 or 4.10. Optional Redemption Price pursuant to Sections 4.02, 4.03 or 4.10. Outstanding used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except: (i) Notes theretofore cancelled by the Trustee or delivered to the Trustee for cancellation; (ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company
22 shall act as its own Paying Agent) for the Holders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; and (iii) Notes which have been paid or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which the Trustee knows to be so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the the Company or any other obligor upon the Notes or any Affiliate of the Company or of such other obligor. Panamanian Note 2.20 of this Indenture. Pari Passu Debt of payment to the Notes. Paying Agent that is authorized by the Company to pay the principal of or any premium or interest on any Notes on behalf of the Company in accordance with this Indenture. Payment Date other date on which payments on the Notes in respect of principal, interest or other amounts, including as a result of any acceleration of the Notes, are required to be paid pursuant to this Indenture or the Notes. Permitted Asset Swap or exchange of related business assets or a combination of related business assets, cash and Cash Equivalents between the Company or any of its Subsidiaries and another Person. Permitted Debt Section 5.04(b). Permitted Investments Investments in (a) Cash Equivalents or (b) deposit accounts, certificates of deposit and time deposits and money market deposits, or trust company which is organized under the laws of the jurisdiction in which the
provided provided
24 rel -off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution; (c) Liens on the property of the Company or any Restricted Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance bids, trade contracts, letters of credit performance or return-of-money bonds, surety bonds or other obligations of a like nature and Incurred in a manner consistent with industry practice, in each case which are not Incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Company and the Restricted Group taken as a whole; (d) Liens on property at the time the Company or any Restricted Subsidiary acquired such property, including any acquisition by means of a merger or consolidation with or into the Company or any Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company or any Restricted Subsidiary; (e) Liens on the property of a Person at the time such Person becomes a Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of the Company or any other Restricted Subsidiary that is not a direct or, prior to such time, indirect Subsidiary of such Person; (f) pledges or deposits by the Company or any Restricted Subsidiary under good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which the Company or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of the Company or any Restricted Subsidiary or deposits for the payment of rent, in each case Incurred in the ordinary course of business; (g) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character; (h) any provision for the retention of title to any property by the vendor or transferor of such property which property is acquired by the Company or a Restricted Subsidiary in a transaction entered into in the ordinary course of business of the Company or a Restricted Subsidiary and for which kind of transaction it is customary market practice for such retention of title provision to be included; (i) Liens arising by means of any judgment, decree or order of any court, to the extent not otherwise resulting in a Default hereunder so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order have not been fully terminated or the period within which such proceedings may be initiated has not expired and any Liens that are required to protect or enforce rights in
25 any administrative, arbitration or other court proceeding in the ordinary course of business; (j) Liens securing any Credit Facility permitted under clause (iii) of Section 5.04(b), or any Interest Rate, Currency or Commodity Price Agreement; (k) Liens on and pledges of the Capital Stock of any Unrestricted Subsidiary to secure Debt of that Unrestricted Subsidiary; (l) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which the Company or any Restricted Subsidiary has easement rights or on any real property leased by the Company or any Restricted Subsidiary or similar agreements relating thereto and any condemnation or eminent domain proceedings or compulsory purchase order affecting real property; (m) Liens existing on the date of this Indenture; (n) Liens in favor of the Company or any Restricted Subsidiary; (o) Liens on insurance policies and the proceeds thereof, or other deposits, to secure insurance premium financings in respect of the Company or any of its Restricted Subsidiaries; (p) Liens arising from financing statement filings (or other similar filings in any applicable jurisdiction) regarding operating leases entered into by any Restricted Subsidiary of the Company in the ordinary course of business; (q) Liens on goods (and the proceeds thereof) and documents of title and the property covered thereby securing Debt in respect of commercial letters of credit issued to facilitate the purchase, shipment or storage of such inventory or other goods; (r) Liens on property of the Company or any Restricted Subsidiary of the Company to secure Debt Incurred by the Company or such Restricted Subsidiary pursuant to clauses (viii), (ix), (x) and (xi) of Section 5.04(b); (s) Liens for the purpose of securing the payment of all or a part of the purchase price of Capital Lease Obligations or payments Incurred by the Company or its Subsidiaries to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that such Liens do not encumber any other assets or property of the Company or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto; (t) Liens on the property of the Company or any Restricted Subsidiary to replace in whole or in part, any Lien described in the foregoing clauses (a) through (s); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could
26 secure) the Debt being refinanced or in respect of property that is the security for a Permitted Lien hereunder; (u) any interest or title of a lessor under any Capital Lease Obligation or operating lease; (v) Liens on any escrow account used in connection with an acquisition of property or Capital Stock of any Person or pre-funding a refinancing of Debt otherwise permitted by this Indenture; (w) financial institutions arising from any netting or set-off arrangement substantially consistent with its current practice for the purpose of netting debt and credit balances substantially consistent with the arrangements; (x) Liens Incurred in the ordinary course of business of the Company or any of its Subsidiaries with respect to obligations that do not exceed the greater of $20.0 million or 3.0% of Total Assets at any one time outstanding and that do not in the aggregate materially detract from the value of the property of the Company and the Restricted Subsidiaries, taken as a whole, or materially impair the use thereof in the operation of business by the Company or such Restricted Subsidiary; (y) Liens over cash or other assets that secure collateralized obligations Incurred as Permitted Debt; provided that the amount of cash collateral does not exceed the principal amount of the Permitted Debt; (z) Liens on Receivables and related assets of the type described in the Receivables Transaction, and Liens on Investments in Receivables Entities; (aa) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Transaction; (bb) Liens for the purpose of perfecting the ownership interests of a purchaser of Receivables and related assets pursuant to any Qualified Receivables Transaction; (cc) Liens arising in connection with other sales of Receivables permitted hereunder without recourse to the Company or any of its Subsidiaries; (dd) Liens securing Debt or other obligations of a Restricted Subsidiary owing to the Company or another Restricted Subsidiary; (ee) Liens in respect of the ownership interests in, or assets owned by, any joint ventures or similar arrangements, other than joint ventures and similar arrangements that are Restricted Subsidiaries, securing obligations of such joint ventures or similar agreements;
27 (ff) any encumbrance or restriction (including, but not limited to, put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement; (gg) Liens for the benefit of the holders of the Notes; and (hh) Liens over rights under loan agreements relating to, or over notes or similar instruments evidencing, the on-loan of proceeds received by a Restricted Subsidiary from the issuance of Debt, which Liens are created to secure payment of such Debt. Permitted Refinancing Debt defeasances, discharges, refinancings or replacements (each, for purposes of this definition and clause (vii) of Section 5.04(b) refinancing Company or a Restricted Subsidiary of the Company or pursuant to this definition, including any successive refinancings, as long as: (i) such Permitted Refinancing Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (a) the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value plus all accrued interest) then outstanding of the Debt being refinanced; and (b) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing; (ii) such Permitted Refinancing Debt has (a) a Stated Maturity that is either (1) no earlier than the Stated Maturity of the Debt being refinanced or (2) after the Stated Maturity of the Notes and (b) a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Debt being refinanced; and (iii) if the Debt being refinanced is subordinated in right of payment to the Notes, such Permitted Refinancing Debt is subordinated in right of payment to the Notes on terms at least as favorable to the Holders of Notes as those contained in the documentation governing the Debt being refinanced; and (iv)if the Company was the obligor on the Debt being refinanced, such Permitted Refinancing Debt is Incurred by the Company. Permitted Refinancing Debt in respect of any Credit Facility or any other Debt may be Incurred from time to time after the termination, discharge or repayment of all or any part of such Credit Facility or other Debt. Person partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature. Place of Payment, agency of the Trustee maintained pursuant to Section 5.01 and such other place or places, if any, where the principal of and interest on the Notes are payable as specified herein.
28 Predecessor Note Note evidencing all or a portion of the same Indebtedness as that evidenced by such particular Note; for the purposes of this definition, any Note authenticated and delivered under Section 2.13 in exchange for or in lieu of a mutilated, lost, destroyed or stolen Note shall be deemed to evidence the same Indebtedness as the mutilated, lost, destroyed or stolen Note. Preferred Stock Capital Stock of such Person of any class or classes (however designated) that ranks 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 such Person, to shares of Capital Stock of any other class of such Person. Principal Paying Agent initially Citibank, N.A., in its capacity as the principal Paying Agent and its successors and assigns. Process Agent Section 13.15(b). PSE Bolsa de Valores de Panamá). PSE Auction the date hereof. Purchase Agreement October 28, 2019, among the Company and the Initial Purchasers. Purchase Amount Section 4.09(b)(iii). Purchase Date Section 4.09(b). Purchase Money Obligations the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise. Purchase Price Section 4.09(b)(iv). Purchasing Party Section 4.09(a). QIB Rule 144A under the Securities Act. Qualified Capital Stock Person other than Redeemable Stock. Qualified Receivables Transaction transactions that may be entered into by the Company or any of its Restricted Subsidiaries pursuant to which the Company or any of its Restricted Subsidiaries may
29 sell, convey or otherwise transfer to (i) a Receivables Entity (in the case of a transfer by the Company or any of the Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by a Receivables Entity), or may grant a Lien in, any Receivables (whether now existing or arising in the future) of the Company or any of the Restricted Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Receivables, all contracts and all Guarantees or other obligations in respect of such accounts receivable, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which Liens are customarily granted, in connection with asset securitization involving Receivables and any Interest Rate, Currency or Commodity Price Agreement entered into by the Company or any such Restricted Subsidiary in connection with such Receivables. Rating Agency nationally recognized U.S. rating agency or agencies, as the case may be, selected by the Rating Category + - , CCC, , Baa, Ba, B, Caa, Ca, and C (or equivalent successor categories), and (iii) the equivalent Rating Decline will be deemed to have occurred if at any time from the earlier of the date of public notice of (i) a Change of Control or (ii) the the intention of any Person to effect a Change of Control until the end of the 90 day period following the occurrence of a Change of Control (which period shall in either event be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by a Rating Agency), the rating of the Notes is decreased by either Rating Agency by two or more Gradations and such rating decline is expressly stated to be due to a Change of Control. Receivable eans a right to receive payment arising from a sale or lease of goods or the performance of services by a Person pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an Commercial Code as in effect in as so defined. Receivables Entity another Person in which the Company or any Subsidiary of the Company makes an Investment or to which the Company or any Subsidiary of the Company transfers Receivables and related assets) which engages in no activities other than in connection
31 dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller. Record Date January 15 or July 15, as the case may be, immediately preceding an Interest Payment Date. Redeemable Stock any Person means any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including upon the occurrence of an event) matures or is required to be redeemed (pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time prior to the final Stated Maturity of the Notes. Reference Treasury Dealer Securities LLC, BNP Paribas Securities Corp., Morgan Stanley & Co. LLC and Scotia Capital (USA) Inc. or any of their respective affiliates which are primary United States Government security dealers; provided, however, that if any of the foregoing shall cease Primary Treasury Dealer investment banking firm that is a Primary Treasury Dealer. Reference Treasury Dealer Quotation Treasury Dealer and any redemption date, the average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third Business Day preceding that redemption date. Registered Depositary whole or in part in the form of one or more Global Notes, The Depository Trust Company, having a principal office at 55 Water Street, New York, New York 10041- 0099, together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its securities payment and transfer operations, for so long as it shall be a clearing agency registered under the Exchange Act, or such successor as the Company shall designate Regulation S amended and in effect from time to time. Regulation S Global Note Section 2.05(c). Related Assets and properties, whether tangible or intangible (including ownership interests), used or intended for use in connection with a Related Business. Related Business are engaged, directly or indirectly, that consists primarily of, or are related to, operating,
32 acquiring, developing or constructing any telecommunications services (including, without limitation, fixed and mobile telephony, broadband internet, network-related services, cable television, broadcast content, network-neutral services, electronic, transactional, financial and commercial services related to the provision of telephony or internet services) and related businesses. Related Person indirectly owning (a) 5% or more of the outstanding Common Stock of such Person (or, in the case of a Person that is not a corporation, 5% or more of the equity interest in such Person) or (b) 5% or more of the combined voting power of the Voting Stock of such Person. Relevant Taxing Jurisdiction Section 2.15(a). Remaining Scheduled Payments Note to be redeemed, the sum of (i) the redemption price of such Note on the First Redemption Date, such redemption price being set forth in Section 4.02(b), plus (ii) all required interest payments due on such Note through the First Redemption Date that would be due after the date on which such Note is being redeemed; provided, however, that, if that redemption date is not an interest payment date with respect to such Note, the amount of the next succeeding scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to that redemption date. Repurchase Event Repurchase Price Responsible Officer in the Corporate Trust Office having direct responsibility for the administration of this Indenture (or any successor group of the Trustee), or any other officer of the Trustee to familiarity with the particular subject and who shall have direct responsibility for the administration of this Indenture. Restricted Cash in accordance with IFRS. Restricted Group, s the Company and the Restricted Subsidiaries, taken together on a consolidated basis. Restricted MFS Cash to any cash paid in or deposited by or held on behalf of any customer or dealer of, or any consolidated statement of financial position of the Company, together with any interest thereon. Restricted Payment Section 5.05.
33 Restricted Subsidiary n an Restricted Subsidiaries Subsidiary, collectively. Revolving Credit Facility 2017, by and among Millicom International Cellular S.A., and The Bank of Nova Scotia, BNP Paribas, Citigroup Global Markets Limited, DNB Markets, a part of DNB Bank DNB Nordea Bank AB (Publ), Standard Chartered Bank, the other Lenders party thereto, and DNB, acting as agent, relating to a credit facility initially providing for loans in a total aggregate principal amount of up to $600,000,000. Rule 144 and in effect from time to time. Rule 144A means Rule 144A promulgated under the Securities Act, as amended and in effect from time to time. Rule 144A Global Note Section 2.05(b) hereof. Sale/Leaseback Transaction owned or hereafter acquired whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from such Person. Securities Act from time to time. Securitization Obligation Receivables Entity. Senior Secured Debt of any date of determination, any Debt of the Company or any Restricted Subsidiary that is secured by a security interest in any assets of the Company or any of its Subsidiaries. Shareholder Loans Company that is issued to and held by an equity owner of the Company or such Subsidiary, other than the Company or a Subsidiary of the Company, that, in each case, (1) will not have the benefit of any negative pledge covenant, collateral or security interest, (2) the terms of which provide that, in the event that (a) an installment of interest with respect to such Debt is not paid on the applicable interest payment date or (b) the principal of, or premium, if any, on any such Debt is not paid on the stated maturity or other date set for redemption, then the obligation to make such payment on such interest payment date, maturity date or other redemption date will not be a default under such Debt until after the maturity date of the Notes, and (3) the terms of which provide that no amount will be payable in bankruptcy, liquidation or any similar proceeding with respect to the Person Incurring such Debt until all claims of senior creditors of such Person,
34 including, without limitation, the Holders, admitted in such proceeding have been satisfied. SMV (Superintendencia de Mercado de Valores de Panamá). Special Record Date Section 2.14(b). Specified Legal Expenses extraordinary, non- penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative). Standard Securitization Undertakings covenants and indemnities entered into by the Company or any Subsidiary of the Company which are reasonably customary in a securitization of Receivables transactions, including, without limitation, those relating to the servicing of the assets of a Receivables Entity, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking. Stated Maturity interest thereon, means the date specified in such security as the fixed date on which the principal of such security or such installment of interest is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred). Subsidiary combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof. Subsidiary Guarantor provided a Note Guarantee and its respective successors until released from its obligations under its Note Guarantee and this Indenture in accordance with the terms of this Indenture, as amended and supplemented. Taxes Section 2.15(a). Telefónica Panamá successors.
35 Total Assets ancial position prepared on the basis of IFRS prior to the relevant date of determination calculated to give pro forma effect to any acquisitions (including through mergers or consolidations) and dispositions that have occurred subsequent to such period, including any such acquisitions to be made with the proceeds of Debt giving rise to the need to calculate Total Assets. Tower Equipment services, excluding telecommunications equipment, but including, without limitation, towers (including tower lights and lightning rods), power breakers, deep cycle batteries, generators, voltage regulators, main AC power, rooftop masts, cable ladders, grounding, walls and fences, access roads, shelters, air conditioners and BTS batteries owned by the Company or any Subsidiary of the Company. Transaction Documents Transfer Agent initially Citibank, N.A., in its capacity as the Transfer Agent and its successors and assigns and any other Person appointed as a Transfer Agent hereunder in accordance with the terms hereof. Treasury Rate ate per annum equal to the semiannual equivalent yield to the First Redemption Date (computed as of the third Business Day immediately preceding the redemption date of such Note) of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for that redemption date. Trustee Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, a United States U.S. Unrestricted Subsidiary of the Company designated below and (2) any Subsidiary of provided (A) no Default with respect to any Debt of such Subsidiary or any Subsidiary (other than any Unrestricted Subsidiary) of such Subsidiary (including any right which the holders thereof may have to take enforcement action against such Subsidiary) would permit (upon notice, lapse of time or both) any holder of Debt to declare a Default on such Debt or cause the payment thereof to be accelerated or payable prior to its Stated Maturity, and (B) if the Subsidiary to be so designated has total assets in excess of $250,000, the Company could make a Restricted Payment as a Permitted Investment in an amount equal to the fair market value Section 5.05 and such
36 amount is thereafter treated as a Restricted Payment for the purpose of calculating the aggregate amount available for Restricted Payments thereunder. U.S. Dollar Equivalent currency other than U.S. Dollars, at any time of determination thereof, the amount of U.S. Dollars obtained by translating such other currency involved in such computation into U.S. Dollars at the spot rate for the purchase of U.S. Dollars with the applicable other currency as published in the Financial Times on the date that is two Business Days prior to such determination. U.S. Dollars $ U.S. Person U.S. person S under the Securities Act. Value Creation Fees stewardship fees, service fees and any other fees paid by any of the Restricted Group to Millicom or any of its Subsidiaries (other than the Restricted Group). Voting Stock n means Capital Stock of such Person which ordinarily has voting power for the election of directors (or Persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency. Weighted Average Life to Maturity Preferred Stock at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Debt or liquidation preference of such Preferred Stock, as the case may be, into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal or upon mandatory redemption, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one- twelfth) that will elapse between such date and the making of such payment. Wholly Owned Subsidiary in respect of any Person, a Person, all of the Capital Stock of which (other than (a) amount of shares required to be owned by other Persons pursuant to applicable law, regulation or to ensure limited liability and (b) in the case of a Receivables Entity, shares held by a Person that is not an Affiliate of the Company solely for the purpose of major events with respect to such Receivables Entity, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or other customary events) is owned by that Person directly or (ii) indirectly by a Person that satisfies the requirements of clause (i). Section 1.02. Construction. For all purposes of this Indenture (and for all purposes of any other Transaction Document or any other instrument or agreement that
37 incorporates provisions of this Indenture by reference), 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 1, and include the plural as well as the singular; (b) except as otherwise expressly provided herein, (i) all accounting terms used herein shall be interpreted, (ii) all financial statements and all certificates and reports as to financial matters required to be delivered to the Trustee hereunder shall be prepared and (iii) all calculations made for the purposes of determining compliance with this Indenture shall (except as otherwise expressly provided herein) be made in accordance with, or by application of, IFRS; (c) unless otherwise specified, all references in this Indenture (including the Articles, Sections and other subdivisions are to the designated Articles, Sections and other subdivisions of this Indenture; (d) import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision; (e) unless the context clearly indicates otherwise, pronouns having a masculine or feminine gender shall be deemed to include the other; (f) unless otherwise expressly specified, any agreement, contract or document defined or referred to herein shall mean such agreement, contract or document as in effect as of the date hereof, as the same may thereafter be amended, supplemented or otherwise modified from time to time in accordance with the terms of this Indenture and the other Transaction Documents and shall include any agreement, contract, instrument or document in substitution or replacement of any of the foregoing entered into in accordance with the terms of this Indenture and the other Transaction Documents; (g) any reference to any Person shall include its permitted successors and assigns in accordance with the terms of this Indenture and the other Transaction Documents including, in the case of any Governmental Authority, any Person succeeding to its functions and capacities; and (h) unless Law particular Law shall include Laws or such particular Law as in effect at each, every and any of the times in question, including any amendments, replacements, supplements, extensions, modifications, consolidations, restatements, revisions or reenactments thereto or thereof, and whether or not in effect at the date of this Indenture.
38 ARTICLE 2 THE NOTES Section 2.01. Designation. (a) There is hereby created a series of 4.500% Senior Notes due 2030 in the initial aggregate principal amount of $600,000,000 which are to be issued pursuant to this Indenture. (b) Each Note shall constitute Indebtedness of the Company payable out of the secured and unsubordinated Indebtedness of the Company and shall at all times rank pari passu present and future unsubordinated, unsecured Indebtedness from time to time outstanding. Section 2.02. Authentication and Delivery of Notes. (a) At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Notes executed by the Company to the Trustee for authentication, together with an Company Order for the authentication and delivery of such Notes, and the Trustee in accordance with such Company Order shall authenticate and deliver such Notes as in this Indenture provided and not otherwise. (b) No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication, in the form provided for in Section 2.04 hereof, executed by the Trustee by the manual signature of any Authorized Officer, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder. (c) The Trustee shall have the right to decline to authenticate and deliver the Notes under this Section 2.02 if the Trustee determines that such action may not lawfully be taken by the Company or the Trustee or if the Trustee in good faith with appropriate authority shall determine that such action does not comply with the provisions of this Indenture or any document or instrument delivered in connection herewith, or could expose the Trustee to personal liability. Prior to the authentication and delivery of the Notes, the Trustee shall also receive such other funds, accounts, documents, certificates, instruments or opinions as may be required hereunder or it may request in order to provide it with assurances that all action necessary in connection herewith has been taken. (d) Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued or sold by the Company, and the Company shall deliver such Note to the Trustee for cancellation as provided in Section 2.17 together with a written statement (which may be in the form of Exhibit G hereto and need not comply with Section 13.02 or be accompanied by an Opinion of Counsel) stating that such Note has never been issued or sold by the Company, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never have been or be entitled to the benefits hereof. The
39 cancellation of any such Note shall be effective upon receipt of such Note together with such written statement in each case either manually or by facsimile. Section 2.03. Aggregate Amount; Additional Notes. (a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited. (b) Subject to compliance with Section 5.04 hereof, the Company may from time to time issue additional n Additional Notes pari passu with each of the Notes and with the same terms as to status, redemption and otherwise as such Notes (except for payment of interest accruing prior to the issue date of such Additional Notes or for the first payment of interest following the issue date of such Additional Notes). The Additional Notes will be consolidated and treated as a single class for all purposes under this Indenture, including, without limitation, waivers, amendments, redemptions, and offers to purchase, with the Notes initially issued pursuant to this Indenture. (c) All Additional Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take benefit of all the terms, conditions and provisions of this Indenture except that interest will accrue on the Additional Notes from their date of issuance; provided, however, that unless such Additional Notes are issued under a separate CUSIP number, such Additional Notes must be fungible with the Notes for U.S. federal income tax purposes. Section 2.04. tion authentication on all Notes shall be in substantially the following form: -mentioned Indenture. Citibank, N.A., as Trustee By: Authorized Officer Section 2.05. Form of the Notes. Forms Generally. (a) The form of the Notes shall be as set forth in the applicable portion of Exhibit A hereto. (b) Rule 144A Global Notes. The Notes initially sold in the United States to any U.S. Person that is a QIB shall be issued in the form of one or more permanent global notes for the Notes in definitive, fully registered form without interest coupons substantially in the form of Exhibit A-1 Rule 144A Global Note alf of the subscribers of such Notes represented thereby with the Trustee as custodian for, and registered in the name of a nominee of, the Registered Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided.
40 (c) Regulation S Global Notes. The Notes initially sold outside the United States to Non-U.S. Persons in accordance with Regulation S may be issued in the form of one or more permanent global notes in definitive, fully registered form without interest coupons substantially in the form of Exhibit A-2 Regulation S Global Note subscribers for such Notes represented thereby with the Trustee as custodian for, and registered in the name of a nominee of, the Registered Depositary for the respective accounts of Euroclear and Clearstream, duly executed by the Company and authenticated by the Trustee as hereinafter provided. (d) Book-Entry Provisions. This Section 2.05(d) shall apply only to Global Notes deposited with or on behalf of the Registered Depositary. (i) Global Notes insofar as interests in such Global Notes are held by the members or participants of Euroclear or Clearstream, as the case may be. (ii) Agent Members shall have no rights under this Indenture with respect to any Global Note held on their behalf by the Trustee, as custodian for the Registered Depositary, and the Registered Depositary may be treated by the Company, the Trustee, and any agent of the Company or the Trustee as the absolute owner of such Global Note for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by the Registered Depositary or impair, as between the Registered Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial interest in any Global Note. (e) At such time as all beneficial interests in a particular Global Note have been exchanged for Notes in definitive form or a particular Global Note has been redeemed, repurchased or canceled in whole and not in part, such Global Note shall be returned to or retained and canceled by the Trustee in accordance with Section 2.17. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or in the form of Notes in definitive form, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Registered Depositary at the direction of the Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Trustee or by the Registered Depositary at the direction of the Trustee to reflect such increase.
41 (f) The forms of Notes may have 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, consistent herewith, be applicable thereto or determined by officers of the Company executing such Notes, as evidenced by their execution thereof. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereof on the face of the Note. If the Notes conflict or are inconsistent with the provisions of this Indenture, then this Indenture shall control. Section 2.06. Maturity of the Notes. The Notes shall mature on January 30, 2030 Stated Maturity provided that no payments in respect of the principal of the Notes shall be paid prior to the Stated Maturity except in the case of the occurrence of an Event of Default and acceleration of the aggregate outstanding principal amount of the Notes or upon redemption prior to the Stated Maturity pursuant to Article 4 hereof or Section 2.21. Section 2.07. Interest. Interest shall accrue on the Notes from the Issue Date at the rate of 4.500 Note Rate shall be paid by the Company to the Trustee pursuant to Section 2.14 and distributed by the Trustee in accordance with this Indenture semiannually in arrears on January 30 and July 30 Interest Payment Date Business Day, the next succeeding Business Day following such day) during which any portion of the Notes shall be Outstanding, commencing on January 30, 2020 to the Person in whose name a Note is registered at the close of business on the preceding Record Date. Interest shall be calculated based on a 360-day year of twelve 30-day months. Notwithstanding anything herein to the contrary, interest on the Notes at the Note Rate shall continue to accrue in the event such interest is not paid on the scheduled Interest deemed to include any Additional Amounts pursuant to Section 2.15 of this Indenture, unless the context otherwise specifically requires. Section 2.08. Record Date. The Trustee and each Authorized Agent may treat the Person in whose name any Note is registered on the applicable Record Date as the Noteholder for all purposes under this Indenture. Section 2.09. Issuance. The Notes shall be issued only in a transaction exempt from registration under the Securities Act to (a) (b) other permitted Persons or entities pursuant to Regulation S under the Securities Act. The Notes shall be subject to restrictions on transfer and resale as provided in Section 2.12 hereof. Section 2.10. Denominations, etc. The Notes shall be issued only in fully registered form, without coupons and as otherwise provided herein. Notes sold pursuant to Rule 144A shall be issued in the form of one or more Rule 144A Global Notes in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof.
42 Notes sold pursuant to Regulation S shall be issued in the form of one or more Global Notes in minimum denominations of $200,000 and integral multiples of $1,000 in excess thereof. Beneficial interests in any Global Notes shall be shown on, and transfers thereof shall be effected only through, the book-entry records maintained by the Registered Depositary and its participants. Notes issued in physical, certificated, non-global form shall not be permitted to be traded through the facilities of the Registered Depositary, except in connection with a transfer of a Note in certificated, non-global form to a transferee that takes delivery in the form of beneficial interests in a Global Note pursuant to Rule 144A or Regulation S, as the case may be. Section 2.11. Execution of Notes. (a) The Notes shall be executed on behalf of the Company by one or more of its Authorized Representatives. The signature of any such officer on the Notes may be manual or facsimile. Notes bearing the manual or facsimile signatures of individuals who were, at the time such signatures were affixed, the proper officers 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 Notes or did not hold such offices at the date of such Notes. (b) Pending the preparation of definitive Notes as contemplated in Section 2.05, the Company may execute, and upon a Company Order, the Trustee shall authenticate and deliver, temporary Notes, including temporary global notes, that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Authorized Representatives executing such Notes may determine, as conclusively evidenced by their execution of such Notes. (c) If temporary Notes are issued, the Company will cause definitive Notes to be prepared without unreasonable delay. The definitive Notes shall be printed, lithographed or engraved, or produced by any combination of these methods, or in any other manner permitted by the rules and regulations of any applicable securities exchange, all as determined by the Authorized Representatives executing such definitive Notes, as evidenced by their execution of such Notes. After the preparation of definitive Notes, the temporary Notes shall be exchangeable for definitive Notes upon surrender of the temporary Notes at the office or agency maintained by the Company for such purpose under Section 5.01, without charge to the Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Company shall execute, and upon receipt of the Company Order, the Trustee shall authenticate and deliver in exchange therefor the same aggregate principal amount of definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as definitive Notes. Section 2.12. Registration; Restrictions on Transfer and Exchange. (a) The Company shall cause to be kept at the Corporate Trust Office of the Note Registrar a register which, subject to such reasonable procedures as the Company may prescribe, shall provide for the registration of Notes and for the registration of transfers and exchanges of Notes. This register and, if there shall be more than one Note Registrar, the
43 combined registers maintained by all such note registrars, are herein sometimes referred to Note Register the purpose of registering Notes and transfers and exchanges of Notes as herein provided. Upon any resignation or removal of the Note Registrar, the Company shall promptly appoint a successor, or in the absence of such appointment, assume the duties of such Note Registrar. The Company may appoint one or more co-registrars. No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Company or the Trustee may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes. (b) If a Person other than the Trustee is appointed by the Company as Note Registrar, the Company will give the Trustee prompt written notice of the appointment of a Note Registrar and of the location, and any change in the location, of the Note Register, and the Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Trustee shall have the right to rely upon such Note Register as to the names and addresses of the Noteholders and the principal amounts and numbers of such Notes. (c) Subject to the provisions of this Section 2.12, at the option of the Noteholder, certificated Notes may be exchanged for other certificated Notes of the same class, in any authorized denominations and of a like original principal amount, upon surrender of the Notes to be exchanged at the Corporate Trust Office of the Trustee or such other office as the Trustee may designate for such purposes. Whenever any certificated Notes are surrendered for exchange, the Company shall execute, and upon receipt of a Company Order, the Trustee or Authenticating Agent shall authenticate and deliver, the certificated Notes that the Noteholder making the exchange is entitled to receive. (d) Every certificated Note presented or surrendered for registration of transfer or exchange shall be duly endorsed or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee, duly executed by the Holder thereof or its attorney duly authorized in writing. (e) No Note may be sold or transferred (including, without limitation, by pledge or hypothecation) unless such sale or transfer is exempt from the registration requirements of the Securities Act and is exempt from applicable state or foreign securities laws. (f) No Note may be offered, sold or delivered as part of the distribution by the Initial Purchasers at any time, or otherwise, within the United States or to, or for the benefit of, U.S. Persons except to Persons that are QIBs. The Notes may be sold or resold, as the case may be, outside the United States to Non-U.S. Persons in accordance with Regulation S under the Securities Act.
44 (g) So long as any Global Note remains Outstanding and is held by or on behalf of the Registered Depositary, transfers and exchanges of such Global Note, in whole or in part, shall only be made in accordance with Section 2.05(d) and this Section 2.12(g). (i) Rule 144A Global Notes to Regulation S Global Notes. If a Holder of a beneficial interest in a Rule 144A Global Note deposited with the Registered Depositary wishes at any time to exchange such Rule 144A Global Note for an interest in the corresponding Regulation S Global Note, or to transfer such interest in such Rule 144A Global Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Regulation S Global Note, such Noteholder, provided that such Noteholder or, in the case of a transfer, the transferee, is a Non-U.S. Person, subject to the rules and procedures of the Registered Depositary, may exchange or transfer, or cause the exchange or transfer of, such interest for an equivalent beneficial interest in the corresponding Regulation S Global Note. Upon receipt by the Note Registrar of (A) instructions given in accordance w Member directing the Note Registrar to credit or cause to be credited a beneficial interest in the corresponding Regulation S Global Note, but not less than the authorized denomination applicable to the beneficial interest in the Rule 144A Global Note to be exchanged or transferred, (B) procedures, containing information regarding the participant account of the Registered Depositary to be credited with such increase and (C) a certificate in the form of Exhibit C attached hereto given by the Holder of such beneficial interest stating that the exchange or transfer of such Note has been made in compliance with the transfer restrictions applicable to the Global Notes, then the Note Registrar shall approve the instruction at the Registered Depositary to reduce the principal amount of the Rule 144A Global Note and to increase the principal amount of the Regulation S Global Note by the principal amount of the beneficial interest in the Rule 144A Global Note to be transferred or exchanged and to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Regulation S Global Note equal to the reduction in the principal amount of the Rule 144A Global Note. (ii) Regulation S Global Note to Rule 144A Global Note. If a Holder of a beneficial interest in a Regulation S Global Note deposited with the Registered Depositary wishes at any time to exchange its interest in such Regulation S Global Note for an interest in the corresponding Rule 144A Global Note or to transfer its interest in such Regulation S Global Note to a Person who wishes to take delivery thereof in the form of an interest in the corresponding Rule 144A Global Note, such Noteholder, subject to the rules and procedures of an Agent Member of the Registered Depositary, as the case may be, may exchange or transfer, or cause the exchange or transfer of such interest for an equivalent beneficial interest in the corresponding Rule 144A Global Note. Upon receipt by the Note Registrar of (A) instructions from Euroclear, Clearstream and/or the Registered Depositary, as the case may be, directing the Note Registrar to cause to be credited a beneficial interest in the corresponding Rule 144A Global Note in
45 an amount equal to the beneficial interest in such Regulation S Global Note, but to be exchanged or transferred, such instructions to contain information regarding the participant account with the Registered Depositary to be credited with such increase, (B) a certificate in the form of Exhibit D attached hereto given by the Holder of such beneficial interest and stating, among other things, that, in the case of an exchange, the Noteholder is a QIB or, in the case of a transfer, the Person transferring such interest in such Regulation S Global Note reasonably believes that the Person acquiring such interest in a Rule 144A Global Note is a QIB, is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction and (C) a certificate in the form of Exhibit E attached hereto given by the proposed transferee stating that it is a QIB, then the Note Registrar shall approve the instruction at the Registered Depositary to reduce, or cause to be reduced, the principal amount of the Regulation S Global Note by the aggregate principal amount of the beneficial interest in the Regulation S Global Note to be transferred or exchanged and the Note Registrar shall approve the instruction at the Registered Depositary, concurrently with such reduction, to credit or cause to be credited to the securities account of the Person specified in such instructions a beneficial interest in the corresponding Rule 144A Global Note equal to the reduction in the principal amount of the Regulation S Global Note. (h) Owners of beneficial interests in the Global Notes will not be entitled to have Global Notes registered in their names, will not receive or be entitled to receive under the Notes unless (i) the Registered Depositary notifies the Trustee that it is unwilling or unable to continue as depository for the Global Notes or DTC, Euroclear or and a successor depository or clearing agency is not appointed by the Trustee within 90 days after receiving such notice, (ii) the Company, at its option, notifies the Trustee in writing that it elects to cause the issuance of certificated Notes, (iii) an Event of Default with respect to the Notes has occurred and is continuing, or (iv) as a result of any amendment to or change in the laws or regulations of Panama, or of any authority therein or thereof having power to tax, or in the interpretation or administration of such laws or regulations which become effective on or after the Issue Date, the Company, the Trustee or the Principal Paying Agent becomes aware that it is or will be required to make any deduction or withholding from any payment in respect of the Global Notes which would not be required if the Global Notes were not represented by a Global Note,
46 in which event the Company will issue or cause to be issued securities in the form of certificated Notes in exchange for the applicable Global Notes to the beneficial owners of such Global Notes as follows: If a Holder of a beneficial interest in a Global Note exchanges such interest in a Global Note for one or more Certificated Notes as set forth above, such Noteholder may exchange or cause the exchange of such interest for an equivalent beneficial interest in one or more such certificated Notes as provided below. Upon receipt by the Note Registrar of (A) instructions from an Agent Member of the Registered Depositary, directing the Trustee to deliver one or more certificated Notes and (B) written instructions from such Noteholder designating the registered name or names, address and payment instructions of such Noteholder and the number and principal amounts of the applicable certificated Notes to be executed and delivered to such Noteholder (the aggregate principal amounts of such certificated Notes being the same as the beneficial interest in the Global Note to be exchanged), then the Note Registrar shall instruct the Registered Depositary to reduce Global Note by the aggregate principal amount of the beneficial interest in the Global Note to be exchanged, shall record the exchange in the Note Register in accordance with Section 2.12(a) and authenticate and deliver one or more certificated Notes registered as specified in the instructions described in clause (B) above, in authorized denominations. (i) Certificated Note to Certificated Note. If a Holder of a certificated Note wishes at any time to transfer such certificated Note to another Person, such Noteholder may transfer, or cause the transfer of, such certificated Note as provided below. Upon receipt by the Note Registrar of (A) such Not endorsed for assignment to the transferee and (B) such certificates and other documents that the Trustee may require given by the proposed transferee, then the Note Registrar shall cancel such certificated Note in accordance with Section 2.17, record the transfer in the Note Register in accordance with Section 2.12(a) and, upon execution by the Company and receipt of a Company Order, authenticate and deliver one or more certificated Notes bearing the same designation as the certificated Notes endorsed for transfer, registered in the names specified in the assignment described in clause (A) above, in principal amounts designated by the transferee (the aggregate of such principal amounts being equal to the aggregate principal amount of the certificated Notes surrendered by the transferor), and in authorized denominations. (j) If Notes are issued upon the registration of transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the applicable legends set forth on the forms of Note attached hereto as Exhibit A-1 and Exhibit A-2 Legend a Note, the Notes so issued shall bear such applicable legend, or such applicable legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an Opinion of Counsel acceptable to it, as may be reasonably required by the Company and the Note Registrar, as applicable (and which shall by its terms permit reliance by the Trustee), to the effect that neither such applicable legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S under the
47 Securities Act or any other applicable law. Upon provision of such satisfactory evidence, the Trustee or the Authenticating Agent, at the written direction of the Company, shall, after due execution by the Company, authenticate and deliver a Note that does not bear such applicable legend. If a Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Company, the Legend shall be reinstated by the Trustee at the written request of the Company. (k) Each Person who becomes a beneficial owner of Notes will be deemed, by its acceptance or purchase thereof, to have represented and agreed with the Company and the Trustee as follows: (i) it is purchasing the Notes for its own account or an account with respect to which it exercises sole investment discretion and it and any such account is either (a) a QIB and is aware that the sale to it is being made pursuant to Rule 144A under the Securities Act or (b) a Non-U.S. Person that is outside the United States; (ii) it acknowledges that the Notes have not been registered under the Securities Act or with any securities regulatory authority of any state and may not be offered or sold within the United States or to, or for the account or benefit of, U.S. Persons except as set forth below; (iii) it understands and agrees that Notes initially offered in the United States to QIBs will be represented by a Global Note and that Notes offered outside the United States pursuant to Regulation S will also be represented by a Global Note; (iv) it will not offer, pledge, resell or otherwise transfer any of such Notes except (a) to the Company or any of its Subsidiaries, (b) within the United States to a QIB in a transaction complying with Rule 144A under the Securities Act, (c) outside the United States in compliance with Rule 903 or 904 of Regulation S under the Securities Act, (d) pursuant to an exemption from registration under the Securities Act (if available) or (e) pursuant to an effective registration statement under the Securities Act, in each case in accordance with all applicable securities laws of the States of the United States and other jurisdictions; (v) it agrees that it will give to each person to whom it transfers the Notes notice of any restrictions on transfer of such Notes; (vi) it acknowledges that prior to any proposed transfer of Notes (other than pursuant to an effective registration statement) the Holder of such Notes may be required to provide certifications relating to the manner of such transfer as provided in this Section 2.12, including in respect of Notes sold or transferred pursuant to Rule 144A or Regulation S under the Securities Act; (vii) it acknowledges that the Trustee, Note Registrar or Transfer Agent for the Notes shall not be required to accept for registration or transfer of any
48 Notes acquired by it, except upon presentation of evidence satisfactory to the Company and the Trustee, Note Registrar or Transfer Agent that the restrictions set forth herein have been complied with; (viii) it acknowledges that the Company, the Initial Purchasers and other Persons will rely upon the truth and accuracy of the foregoing acknowledgements, representations and agreements and agrees that if any of the acknowledgements, representations and agreements deemed to have been made by its purchase of the Notes are no longer accurate, it will promptly notify the Company and the Initial Purchasers; and (ix) if it is acquiring the Notes as a fiduciary or agent for one or more investor accounts, it represents that it has sole investment discretion with respect to each such account and it has full power to make the foregoing acknowledgements, representations and agreements on behalf of each account. (l) The Trustee shall have no responsibility or obligation to any beneficial owner of an interest in a Global Note, a member of, or a participant in, the Registered Depository or other Person with respect to the accuracy of the records of the Registered Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any participant, member, beneficial owner or other Person (other than the Registered Depository) of any notice (including any notice of redemption) or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Global Notes. All notices and communications to be given to the Noteholders and all payments to be made to Noteholders in respect of the Notes shall be given or made only to or upon the order of the registered Noteholders (which shall be the Registered Depository or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Registered Depository subject to the applicable rules and procedures of the Registered Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the Registered Depository with respect to its members, participants and any beneficial owners. (m) None of the Trustee or the Note Registrar shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Note (including transfers between or among participants in the Registered Depositary or beneficial owners of interest in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. (n) If any U.S. Person that is not a QIB and shall become the owner of a beneficial interest in a Rule 144A Global Note, or if any U.S. Person shall become the Non- Permitted Holder
49 such Person is a Non-Permitted Holder, send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that is not a Non-Permitted Holder within 30 days of the date of such notice. If such Non-Permitted Holder fails to so sell its interest, the Company shall have the right, without further notice to the Non-Permitted Holder, to (i)sell such interest in a commercially reasonable sale to a purchaser selected by the Company that is not a Non-Permitted Holder and that certifies to the Company that it meets the requirements of this Indenture or (ii) to redeem such interest for an amount equal to the outstanding principal of the Notes plus accrued and unpaid interest. The Holder of each Note, the Non-Permitted Holder and each other Person in the chain of title from the Holder to the Non-Permitted Holder, by their acceptance of an interest in the Notes, agree to cooperate with the Company to effect such transfers. The proceeds of such sale or redemption, net of any commissions, expenses and taxes due in connection with such sale or redemption, shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale or redemption under this subsection shall be determined in the sole discretion of the Company, and the Company shall not be liable to any Person having an interest in the Notes sold or redeemed as a result of any such sale or redemption or the exercise of such discretion. Section 2.13. Mutilated, Destroyed, Lost and Stolen Notes. (a) If any certificated Note becomes mutilated, defaced, destroyed, lost or stolen, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver in exchange therefor (upon surrender and cancellation thereof) a new certificated Note of like tenor (including the same date of issuance) and equal principal amount, registered in the same manner and dated the date of its authentication and bearing a number not contemporaneously outstanding. In case such certificated Note is destroyed, lost or stolen, the applicant for a substituted certificated Note will furnish to the Company, the Trustee, the Paying Agent and the Note Registrar, as applicable, such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, and, in every case of destruction, loss or theft of the Note, the applicant will also furnish to the Company satisfactory evidence of the destruction, loss or theft of such certificated Note, as the case may be, and of the ownership thereof. Upon the issuance of any such certificated Note, the Company, the Trustee, the Paying Agent and the Note Registrar, as applicable, may require the payment by the registered Holder thereof of a sum sufficient to cover fees and expenses connected therewith. (b) In case any such mutilated, destroyed, lost or stolen certificated Note has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Note, pay such Note. (c) Every new Note issued pursuant to this Section 2.13 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Company, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
50 (d) The provisions of this Section 2.13 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes. Section 2.14. Payment of Interest; Interest Rights Preserved. (a) Interest on any Note which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Record Date for such Interest Payment Date. (b) Any interest on any Note which is payable, but is not punctually paid or Defaulted Interest shall forthwith cease to be payable to the Noteholder on the relevant Record Date by virtue of having been such Noteholder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in clause (i) or (ii) below: (i) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on a special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Note and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special Record Date (the Special Record Date 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 mailed, first-class postage prepaid (or in the case of Global Notes, sent in accordance with the applicable procedures of the Registered Depositary), to each Noteholder at his address as it appears in the Note Register, 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 mailed, such Defaulted Interest shall be paid to the Persons in whose names the Notes (or their respective Predecessor Notes) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (ii). (ii) The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any Notes exchange on which the Notes may be listed, and upon such notice as may be
51 required by such exchange, 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 2.14, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note. Section 2.15. Taxation. (a) All payments by or at the direction of the Company of or in respect of principal, premium, if any, and interest on the Notes shall be made free and clear of, and without withholding or deduction for or on account of, any present or future taxes, levies, imposts or charges of what Taxes imposed by or for the account of Panama, Luxembourg or any political subdivision or taxing authority thereof or therein or imposed by or for account of any other jurisdiction in which the Company is doing business or from or through which payment is made or deemed made by or on behalf of the Company (including the jurisdiction of any paying Relevant Taxing Jurisdiction deduction is required by law. In that event, the Company shall pay such additional amounts in respect of principal (and premium, if any) and interest Additional Amounts paid to the Noteholders or the Trustee, as the case may be, pursuant to the Notes after such deduction or withholding shall equal the respective amounts of principal (and premium, if any) and interest that would have been receivable in respect of the Notes in the case of the Noteholders, or pursuant to Section 7.05, in the case of the Trustee, in the absence of such withholding or deduction. The Company will not, however, be required Excluded Additional Amounts (i) any tax or governmental charge which would not be payable but for the fact that the Holder or beneficial owner of a Note has a present or former connection to the Relevant Taxing Jurisdiction, including being a domiciliary, national or resident of, or engaging in business or maintaining a permanent establishment or being physically present in, Panama or such political subdivision or otherwise having some connection with Panama or such political subdivision other than the mere holding or ownership of such Notes or the collection of principal of (and premium, if any) and interest on such Notes or the enforcement of such Notes; (ii) any tax or other governmental charge that would not have been imposed but for the presentation of a Note (where presentation is required) for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; (iii) any tax or other governmental charge that would not have been imposed but for a failure of the Holder or beneficial owner of the Note to comply
52 with any applicable certification, information, identification, documentation or other reporting requirements concerning the nationality, residence, identity or connection with Panama or any political subdivision thereof if such compliance is required as a precondition to relief or exemption from such tax or other governmental charge (including without limitation a certification that such Noteholder or beneficial owner is not resident in Panama or any political subdivision thereof) to which it is entitled, provided, however, that this clause (iii) shall not apply if the Company shall not have provided the Noteholder with written notice of the applicable requirement at least 30 days prior to the date that the Noteholder is required to comply with such applicable requirement; (iv) any estate, inheritance, gift, sales, excise, transfer, capital gains or personal property tax; (v) any tax imposed in connection with a Note presented for payment by or on behalf of a Noteholder or beneficial owner thereof who would have been able to avoid such tax by presenting the relevant Note to another Paying Agent, provided that such presentation in such other paying agent jurisdiction does not result in any material adverse tax effect to such Noteholder or beneficial owner; (vi) any withholding or deduction imposed on or in respect of Sections 1471 through 1474 of the Internal Revenue Code of 1986, as amended FATCA any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation of FATCA, the laws of any Relevant Taxing Jurisdiction implementing FATCA or any such intergovernmental agreement, any agreement between either the Company and the United States or any authority thereof entered into for FATCA purposes, and any agreements entered into pursuant to Section 1471(b)(1) of the Code; or (vii) any combination of the above. (b) In addition, the Company shall not have any obligation to pay Additional Amounts to a Noteholder that is a fiduciary or partnership or an entity that is not the sole beneficial owner of the payment of the principal or interest on a Note if the laws of the Relevant Taxing Jurisdiction require the payment to be included in the income of a beneficiary or settlor for tax purposes with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to the Additional Amounts had it been the Holder of such Note. (c) At least 10 Business Days prior to the first Interest Payment Date for the Notes, and, if there has been any change with respect to the matters set forth in the below-mentioned certificate at least 10 Business Days prior to each Interest Payment instructing the Trustee as to any circumstances in which payments of principal of or interest on the Notes due on such date shall be subject to deduction or withholding for or on account of any Taxes and the rate of any such deduction or withholding and shall
53 certify that such deduction or withholding amount shall or shall have been paid to the appropriate taxing authority. The Company covenants to indemnify the Trustee and any other Paying Agents for, and to hold each harmless against, any loss, liability or expense reasonably incurred without gross negligence or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Company under the preceding sentence shall survive the resignation or removal of the Trustee, the Registrar or any Paying Agent. Upon written request from the Trustee, the Company shall provide the Trustee with documentation reasonably satisfactory to the Trustee evidencing the payment of Taxes in respect of which the Company has paid any Additional Amounts. Copies of such documentation shall be made available by the Trustee to the Noteholders or the other Paying Agents, as applicable, upon written request therefor. (d) The Company acknowledges that the Trustee and the Principal Paying Agent make no representations as to the interpretation or characterization of the transactions herein undertaken for tax or any other purpose, in any jurisdiction. The Company represents that it has fully satisfied itself as to any tax impact of this Indenture before agreeing to the terms herein, and is responsible for any and all federal, state, local, income, franchise, withholding, value added, sales, use, transfer, stamp or other taxes imposed by any jurisdiction in respect of this Indenture to the extent provided herein. The Company agrees to pay any and all stamp and other documentary taxes or duties which may be payable in connection with the execution, delivery, performance and enforcement of this Indenture by the Trustee or the Principal Paying Agent. Section 2.16. Persons Deemed Owners; Etc. Subject to Section 2.12, prior to due presentment of a Note for registration of transfer, the Company, the Trustee and any agent of the Company may treat the Person in whose name such Note is registered as the owner of such Note for the purpose of receiving payment of principal of (and premium, if any) and interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary. Section 2.17. Cancellation. All Notes surrendered for payment, redemption, registration of transfer, exchange, or pursuant to any Offer to Purchase pursuant to Section 4.09 or deemed lost or stolen shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee for cancellation and may not be reissued or sold. The Company may at any time deliver to the Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever. All Notes so delivered shall be promptly cancelled by the Trustee. For the avoidance of doubt, any Notes that are purchased by the Company in the open market or otherwise may be cancelled, held or resold by the Company as it may determine, provided that any such resales are conducted in compliance with all applicable securities laws. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section 2.17, except as expressly permitted by this Indenture. All cancelled Notes held by the Trustee shall be disposed of by the Trustee in
54 accordance with its standard policy, unless the Company shall direct by a Company Order that they be returned to it. Section 2.18. CUSIP and ISIN Numbers. The Company in issuing the Notes may use CUSIP and ISIN numbers (if then generally in use), and, if so, the Trustee shall use CUSIP and ISIN numbers in notices of redemption or exchange or in Offers to Purchase as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption or exchange and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall cause each CUSIP number obtained for a Rule 144A Global Note to have Trustee in writing of any initial CUSIP and/or ISIN numbers and any change in the CUSIP or ISIN numbers. Section 2.19. Noteholder Lists. The Trustee shall preserve in as current form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders. If the Trustee is not the Note Registrar, the Company shall furnish to the Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Noteholders. Section 2.20. Panamanian Note. Prior to the initial issuance of one or more Global Notes hereunder, the Company may issue one or more certificated Notes Panamanian Note the trading of the Notes on the PSE. Such Panamanian Note or Panamanian Notes shall have terms substantially the same as the terms of the Global Note or Global Notes issued pursuant to this Indenture, shall be substantially in the form set forth in Exhibit F hereto, shall not be entered into the book entry systems of DTC or Euroclear and shall by each of their respective terms, become null and void and of no further effect upon the issuance of a Panamanian Note or Panamanian Notes in an aggregate principal amount equal to the aggregate principal amount of such Panamanian Note or Panamanian Notes, as replacement thereof, or upon the issuance of a Global Note or Global Notes in an aggregate principal amount equal to the aggregate principal amount of such Panamanian Note or Panamanian Notes, as replacement thereof. Except with respect to the authentication of any Panamanian Note (at the written direction of the Company), and the receipt of any documentation with respect to the cancellation of any such Panamanian Note, as set forth in Section 2.02(d) hereof, if applicable, the Trustee shall have no other duties or obligations with respect to any Panamanian Note. Section 2.21. Repurchase of the Panamanian Notes. If, at any time on or after the date hereof up to and including the Issue Date, the Initial Purchasers shall, in accordance with the terms of the Purchase Agreement, deliver a Repurchase Notice (as defined in the Purchase Agreement) to the Company, such delivery shall constitute a Repurchase Event ill
55 become obligated to (x) repurchase on the Issue Date all of the Notes purchased under the PSE Auction through the LatinClear system, and the Company shall repurchase (or, at its sole option, redeem) all of the Notes purchased under the PSE Auction through the LatinClear system on the Issue Date, whether purchased in the PSE Auction by the Initial Purchasers or any other Auction Purchaser, or (y) repurchase a portion of the Notes (as designated by the Initial Purchasers in the Repurchase Notice) purchased by the Initial Purchasers under the PSE Auction through the LatinClear system on the Issue Date, in each case at a price equal to the price payable to the Company for the Notes (the Repurchase Price re Trustee in writing to cancel the Panamanian Note or Panamanian Notes relating to the Notes in the form of Exhibit F hereto (in accordance with the procedures set forth in Section 2.20). The Repurchase Price (and, if redemption of any Notes is elected, the redemption price) shall be equal to the price payable to the Company for the Notes (including any premium, discount and/or prepaid interest) and no make-whole premium or any other amounts shall be payable in connection therewith. In the event the Notes are required to be so repurchased or redeemed, the obligations of the Initial Purchasers (and any other applicable Auction Purchasers who undertook to purchase Notes pursuant to the Panama Stock Exchange bidding process) to pay for the Notes, on the one hand, and the obligation of the Company to pay the Repurchase Price for the Notes to be repurchased or redeemed, on the other hand, will be set off against each other (in the case of any redemption, to the greatest extent possible). Section 2.22. No Mandatory Redemption or Sinking Fund. The Notes shall not be subject to mandatory redemption (except to the extent provided in Section 2.21) or any sinking fund. ARTICLE 3 RESERVED ARTICLE 4 REDEMPTION Section 4.01. Tax Redemption. (a) The Company may redeem the Notes, in whole, but not in part, in accordance with this Section 4.01 Early Tax Redemption accrued and unpaid interest to the date of redemption and any Additional Amounts payable with respect thereto, if: (i) as a result of a change in law (or any rules or regulations thereunder) or treaties of Panama or any political subdivision or taxing authority thereof or therein, or any amendment to or change in an official interpretation, application or administration of such laws, rules or regulations (including a decision of a court of competent jurisdiction or any rules of general applicability thereunder) Change in Law Panama or any political subdivision or taxing authority thereof or therein, the Company has or will become obligated to pay Additional Amounts; and
56 (ii) such obligation cannot be avoided by the Company taking reasonable measures available to it; provided, however, that for this purpose of organization or the location of its principal executive office, or the Incurrence of material out of pocket costs by it or its Affiliates. No such notice of redemption will be given earlier than 90 or later than 30 days prior to the earliest date on which the Company would be obligated to pay such Additional Amounts if a payment in respect of the Notes were then due. (b) Prior to the publication or sending of any notice of redemption of the Notes pursuant to this Section 4.01, the Company shall deliver to the Trustee: (i) an Offic effect such a redemption pursuant to this Indenture; and (ii) if the Trustee so requests, an Opinion of Counsel stating, in addition to the requirements of Section 13.01, that the Company has or will become obligated to pay Additional Amounts due to a Change in Law. The Trustee shall accept such certificate and opinion as sufficient evidence of the satisfaction of the circumstances, as the case may be, set out in Section 4.01(a)(i) or (ii) above, in which event it shall be conclusive and binding on the Noteholders. (c) In the event the Company determines to redeem the Notes as permitted hereunder, the Company shall be required to specify in its notice the proposed date of Early Tax Redemption Date Section 4.05, shall pay to the Trustee (on behalf of the Noteholders) on the Business Day immediately preceding the Early Tax Redemption Date an amount equal to the sum of (i) the aggregate principal amount of the Notes that are then Outstanding, (ii) all accrued but unpaid interest on the Notes at the Note Rate through and excluding the Early Tax Redemption Date and (iii) all other amounts then due on the Notes as provided in this Indenture or the Notes Early Tax Redemption Price not be deemed repaid and cancelled unless and until the Trustee shall have received the Early Tax Redemption Price. Section 4.02. Optional Redemption. (a) At any time and from time to time prior to January 30, 2025, the Company, at its option, may redeem the Notes, in whole or in part, upon the giving of notice as provided in Section 4.04, at a redemption price equal to the greater of the following: (i) 100% of the principal amount of the Notes to be redeemed; and (ii) the sum of the present values of the Remaining Scheduled Payments of principal and interest on the Notes to be redeemed (exclusive of interest accrued to the redemption date) discounted to that redemption date on a semiannual basis (assuming a 360 day year consisting of twelve 30 day months) at the Treasury Rate plus 50 basis points;
57 plus, in either case, accrued and unpaid interest on the principal amount of the Notes being redeemed to, but not including, the date of redemption and any Additional Amounts payable in respect of such interest. (b) At any time and from time to time on or after January 30, 2025, the Company may redeem the Notes, in whole or in part, at a redemption price equal to the applicable percentage of principal amount set forth below plus accrued and unpaid interest to, but not including, the redemption date: 12 month period commencing on Percentage January 30, 2025 102.250% January 30, 2026 101.500% January 30, 2027 100.750% January 30, 2028 and thereafter 100.000% Section 4.03. Optional Redemption upon Equity Offerings of the Company. At any time and from time to time in each case prior to January 30, 2022, the Company may on any one or more occasions redeem up to an aggregate amount of 40% of the original aggregate principal amount of Notes at a redemption price of 104.500% of their principal amount, plus accrued and unpaid interest, if any, to, but not including, the redemption date (subject to the right of the Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date), with the proceeds from one or more Equity Offerings or any sale of Qualified Capital Stock of any Subsidiary of the Company. The Company may only do this, however, if at least 50% of the aggregate principal amount of Notes that were initially issued under this Indenture would remain Outstanding immediately after the proposed redemption. Any notice for such a redemption may be given prior to completing the Equity Offering or sale of Qualified Capital Stock. Section 4.04. Method and Effect of Redemption. (a) Notice of redemption contemplated by Sections 4.01, 4.02, 4.03 and Section 4.10 shall be given by the Company by first-class mail, postage prepaid (or in the case of Global Notes, sent in accordance with the applicable procedures of the Registered Depositary), mailed (or otherwise sent) not less than 10 nor more than 60 days prior to the proposed Optional Redemption Date or the proposed Early Tax Redemption Date, as the case may be, to each Noteholder, at its address appearing in the Note Register. A notice of redemption precedent. All notices of redemption shall state: (i) the proposed date of redemption; (ii) the applicable redemption price; (iii) whether the redemption is being made pursuant to Section 4.01, 4.02, 4.03 or Section 4.10 and, if being made pursuant to Section 4.01, a brief
58 effect such redemption and the (iv) if less than all of the Outstanding Notes are to be redeemed, the identification (and, in the case of partial redemption of any Notes, the principal amounts) of the particular Notes to be redeemed; (v) that, on the redemption date the redemption price will become due and payable upon each such Note to be redeemed and that interest thereon shall cease to accrue from and after said date so long as the Company has deposited with the Paying Agent funds in satisfaction of the redemption price pursuant to this Indenture; (vi) the place or places where such Notes are to be surrendered for payment of the redemption price; (vii) that in the case that a Note is only redeemed in part, the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder of such Note, without service charge, a new Note or Notes in an aggregate amount equal to the unredeemed portion of the Note; (viii) the aggregate principal amount of Notes being redeemed; and (ix) the CUSIP number or numbers of the Notes being redeemed. (b) For so long as the Notes are registered with the SMV and listed on the PSE and/or the Luxembourg Stock Exchange and the rules of such Stock Exchange so require, the Company will comply with the then applicable publishing or notification requirements of any such Exchange, including causing a copy of such notice to be published in a daily newspaper with general circulation in Luxembourg, which is expected to be the Luxembourger Wort, or on the website of the Luxembourg Stock Exchange. In connection with any redemption of the Notes, the Company shall notify the Luxembourg Stock Exchange and the PSE of any change in the principal amount of Notes Outstanding. In addition, the Company will communicate any relevant fact (hecho relevante) in Panama in the manner prescribed by applicable law. (c) If either (i) the Company is not redeeming all Outstanding Notes, or (ii) the Company elects to have the Trustee give notice of redemption, then the Company shall deliver to the Trustee, at least 10 days prior to the date on which such notice (in either case (i) or (ii)) is to be given to the Noteholders (unless the Trustee agrees to a shorter redeemed in accordance with Section 4.07(a) below and/or give notice of redemption and setting forth the information required by paragraph (a) of this Section 4.04 (with the exception of the identification of the particular Notes, or portions of the particular Notes, to be redeemed in case of a partial redemption). If the Company elects to have the Trustee give notice of redemption, the Trustee shall give notice in the name of the
59 (d) Except pursuant to Sections 4.01, 4.02, 4.03 and 4.10 hereof, the Notes are acquiring the Notes by means other than a redemption, whether pursuant to a tender offer, open market purchase or otherwise, so long as the acquisition does not otherwise violate the terms of this Indenture. In each case set forth in Sections 4.01, 4.02, 4.03 and 4.10, the Company may make any Optional Redemption or Early Tax Redemption or notice of redemption subject to the satisfaction of conditions precedent. If such Optional Redemption or Early Tax Redemption or notice of redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, i discretion, the Optional Redemption Date or Early Tax Redemption Date, as the case may be, may be delayed until such time (but no more than 60 days after the date of the notice of redemption) as any or all such conditions shall be satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the Optional Redemption Date or Early Tax Redemption Date, as the case may be, or by the Optional Redemption Date or Early Tax Redemption Date so delayed, as the case may be. In addition, the Company may provide in such notice that payment of the Optional Redemption Price or Early Tax Redemption ns with respect to such redemption may be performed by another Person. If an Optional Redemption Date or Early Tax Redemption Date, as the case may be, is not a Business Day, payment may be made on the next succeeding day that is a Business Day, and no interest shall accrue on any amount that would have been otherwise payable on such redemption date if it were a Business Day for the intervening period. If the Optional Redemption Date or Early Tax Redemption Date, as the case may be, is on or after an interest Record Date and on or before the related Interest Payment Date, the accrued and unpaid interest, if any, will be paid to the Person in whose name the Note is registered at the close of business on such Record Date and no additional interest will be payable to Holders whose Notes will be subject to redemption. Section 4.05. Deposit of Redemption Price. On or before 10:00 a.m. (New York City time) at least one Business Day prior to any Optional Redemption Date or Early Tax Redemption Date, as the case may be, 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) an amount of money sufficient to pay the Optional Redemption Price or the Early Tax Redemption Price, as applicable, of and (except if the date of redemption shall be an Interest Payment Date) accrued interest on all the Notes which are to be redeemed on that date. Section 4.06. Notes Payable on Redemption Date. Notice of Optional Redemption or Early Tax Redemption having been given as aforesaid, the Notes to be redeemed shall, on the Optional Redemption Date or the Early Tax Redemption Date, as the case may be, become due and payable at the Optional Redemption Price or the Early Tax Redemption Price, as applicable, therein specified and on and after such date (unless the Company shall default in the payment of the Optional Redemption Price or the Early Tax Redemption Price, as applicable) such Notes shall cease to bear interest. Upon surrender of such Notes for redemption in accordance with the notice, such Notes shall be paid by the Company at the Optional Redemption Price or the Early Tax Redemption
60 Price, as applicable. Installments of interest maturing on or prior to the Optional Redemption Date or Early Tax Redemption Date, as the case may be, shall continue to be payable (but without interest thereon, unless the Company shall default in the payment thereof) to the Noteholders registered as such on the relevant Record Dates. If any Note called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid, bear interest from the Optional Redemption Date or the Early Tax Redemption Date, as applicable, at the Note Rate. Section 4.07. Selection by Trustee of Notes to be Redeemed. (a) If fewer than all the Notes are to be redeemed, the particular Notes to be redeemed shall be selected not more than 60 days prior to the redemption date by the Trustee pro rata, by lot or by such method as the Trustee shall deem fair and appropriate (or, in the case of Global Notes, based on a method as the Registered Depositary may require) and which may provide for the selection for redemption of portions (equal to $200,000 or any integral multiple of $1,000 in excess thereof) of the principal amount of Notes of a denomination larger than $200,000. (b) The Trustee shall promptly notify the Company and each Note Registrar in writing of the Notes selected for redemption and, in the case of any Notes selected for partial redemption, the principal amount thereof to be redeemed. (c) For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Notes shall relate, in the case of any Notes redeemed or to be redeemed only in part, to the portion of the principal amount of such Notes which has been or is to be redeemed. Section 4.08. Notes Redeemed in Part. Any Note which is to be redeemed only in part shall be surrendered at an office or agency of the Company designated for that purpose pursuant to Section 5.01 (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Noteholder or his attorney duly authorized in writing), and the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder without service charge, a new Note or Notes, of any authorized denomination as requested by such Noteholder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Note so surrendered (or in the case of Global Notes, an appropriate book- entry adjustment will be made). Section 4.09. Offer to Purchase. (a) In the event that, pursuant to Section 5.22 or Section 5.10 hereof, as the case may be, the Company or its Restricted Subsidiaries, as applicable, (each a Purchasing Party Notes either due to a Change of Control Triggering Event or an Asset Disposition, Offer to Purchase chasing Party will follow the procedures specified in this Section 4.09.
61 (b) Offer the Purchasing Party by first class mail, postage prepaid, to each Holder at his address appearing in the Note Register (or, in the case of Global Notes, sent in accordance with the applicable procedures of the Registered Depositary) on the date of the Offer offering to purchase up to the principal amount of Notes specified in such Offer at the purchase price specified in such Offer (as determined pursuant to this Indenture). Unless otherwise required by applicable law, the Offer shall specify an expiratio Expiration Date applicable law, not less than 30 days or more than 60 days after the date of such Offer Purchase Date of Notes within five Business Days after the Expiration Date. The Purchasing Party shall notify the Trustee in writing at least 15 Business Days (or such shorter period as is acceptable to the Trustee) prior to the sending of the Offer of the Purchasing P and the Offer shall be sent by the Trustee in the name and at the expense of the Purchasing Party. The Offer shall contain all instructions and materials necessary to enable such Holders to tender Notes pursuant to the Offer to Purchase. The Offer shall also state: (i) the Section of this Indenture pursuant to which the Offer to Purchase is being made; (ii) the Expiration Date and the Purchase Date; (iii) the aggregate principal amount of the Outstanding Notes offered to be purchased by the Company pursuant to the Offer to Purchase (including, if less than 100%, the manner by which such has been determined pursuant to the Section of this Indenture requiring the Offer to Purchase Purchase Amount (iv) the purchase price to be paid by the Company to be paid by the Company for each $1,000 aggregate principal amount of Notes accepted for payment (as specified pursuant to this Indenture) Purchase Price (v) that the Holder may tender all or any portion of the Notes registered in the name of such Holder and that any portion of a Note tendered must be tendered in minimum amounts of $200,000 and integral multiples of $1,000 in excess thereof; (vi) the place or places where Notes are to be surrendered for tender pursuant to the Offer to Purchase; (vii) that interest on any Note not tendered or tendered but not purchased by the Purchasing Party pursuant to the Offer to Purchase will continue to accrue; (viii) that on the Purchase Date the Purchase Price will become due and payable upon each Note being accepted for payment pursuant to the Offer to Purchase and that interest thereon shall cease to accrue on and after the Purchase
62 Date so long as the Company has deposited with the Paying Agent funds in satisfaction of the Purchase Price pursuant to this Indenture; (ix) that each Holder electing to tender a Note pursuant to the Offer to Purchase will be required to surrender such Note at the place or places specified in the Offer prior to the close of business on the Expiration Date (such Note being, if the Company or the Trustee so requires, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing); (x) that Holders will be entitled to withdraw all or any portion of Notes tendered if the Company (or their Paying Agent) receives, not later than the close of business on the Expiration Date, a telegram, telex, facsimile transmission, letter or other communication acceptable to the Company setting forth the name of the Holder, the principal amount of the Note the Holder tendered, the certificate number of the Security the Holder tendered and a statement that such Holder is withdrawing all or a portion of his tender; (xi) that (A) if Notes in an aggregate principal amount less than or equal to the Purchase Amount are duly tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase all such Notes and (B) if Notes in an aggregate principal amount in excess of the Purchase Amount are tendered and not withdrawn pursuant to the Offer to Purchase, the Company shall purchase Notes having an aggregate principal amount equal to the Purchase Amount on a pro rata basis (with such adjustments as may be deemed appropriate so that only Notes in denominations of $1,000 or integral multiples thereof shall be purchased and provided that Notes of $200,000 or less may only be redeemed in whole and not in part); and (xii) that in the case of any Noteholder whose Note is purchased only in part, the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Noteholder of such Note without service charge, a new Note or Notes, of any authorized denomination as requested by such Noteholder, in an aggregate principal amount equal to and in exchange for the unpurchased portion of the Note so tendered; provided that in the case of Notes represented by Global Notes, appropriate book-entry adjustments will be made to reflect any such purchase in part. (c) Any Offer to Purchase shall be governed by and effected in accordance with the Offer for such Offer to Purchase. (d) For so long as any Notes are listed on the Luxembourg Stock Exchange and the rules of such Stock Exchange so require, the Company will publish notices relating to the Offer to Purchase in a leading newspaper having a general circulation in Luxembourg (which is expected to be the Luxemburger Wort) or on the website of the Luxembourg Stock Exchange. For so long as any Notes are listed on the PSE and the rules of such
63 Stock Exchange so require, the Company will publish notices relating to the Offer to Purchase as prescribed by SMV and PSE regulations. (e) The Company and the Trustee shall perform their respective obligations specified in the Offer. Prior to the Purchase Date, the Purchasing Party shall (i) accept for payment Notes or portions thereof tendered pursuant to the Offer to Purchase, (ii) deposit with the Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust) money sufficient to pay the purchase price of all Notes or portions thereof so accepted and (iii) deliver or cause to be delivered to the Trustee all Notes so accepted for payment by the Purchasing Party. The Paying Agent shall promptly mail or deliver to Noteholders so accepted payment in an amount equal to the purchase price, and upon receipt of a Company Order, the Trustee shall promptly authenticate and mail or deliver to such Noteholders a new Note or Notes equal in principal amount to any unpurchased portion of the Note surrendered as requested by the Noteholder (or in the case of global Notes, an appropriate book-entry adjustment will be made). Any Note not accepted for payment shall be promptly mailed or delivered by the Purchasing Party to the Noteholder. The Purchasing Party shall publicly announce the results of the Offer to Purchase on or as soon as practicable after the Purchase Date. (f) In the event that the Company makes an Offer to Purchase the Notes, the Company will comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations, including the requirements of any applicable securities exchange on which Notes are then listed. Section 4.10. Optional Redemption upon Certain Tender Offers. In connection with any tender offer or other offer to purchase for all of the Notes, if Holders of not less than 90% of the aggregate principal amount of the then Outstanding Notes validly tender and do not validly withdraw such Notes in such tender offer and the Company, or any third party making such tender offer in lieu of the Company, purchases all of the Notes validly tendered and not validly withdrawn by such Holders, the Company or such third party will have the right upon not less than 10 nor more than 60 da such purchase date, to redeem all Notes that remain Outstanding following such purchase at a price equal to the price paid to each other Holder in such tender offer, plus, to the extent not included in the tender offer payment, accrued and unpaid interest, if any, thereon, to, but excluding, such Optional Redemption Date. ARTICLE 5 COVENANTS OF THE COMPANY For so long as the Notes remain Outstanding or any amount remains unpaid on such Notes under this Indenture, the Company will comply with the terms and covenants set forth below (except as otherwise provided in a duly authorized amendment to this Indenture as provided herein). Section 5.01. Maintenance of Office or Agency. The Company will maintain in the Borough of Manhattan, The City of New York, an office or agency where notices to
64 and demands upon the Company in respect of this Indenture and the Notes may be served. Initially this office will be at the Corporate Trust Office and the Company will not change the designation of such office without prior written notice to the Trustee and designation of a replacement office in the same general location. If at any time the Company shall fail to maintain any required office or agency or shall fail to furnish the Trustee with the address thereof, all presentations, surrenders, notices and demands may be 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. Section 5.02. Notice of Defaults and Events of Default. The Company will give notice to the Trustee promptly (but not later than thirty (30) days) after the Company becomes aware of the occurrence of any Default or any Event of Default, accompanied what action the Company proposes to take with respect thereto. Section 5.03. Compliance Certificates. The Company shall deliver to the Trustee within 120 days after the end of each Fiscal Year of the Company an Officer s Certificate signed by its principal executive officer, the principal financial officer or the principal accounting officer stating that in the course of the performance by the signer of his or her duties as an Officer of the Company he or she would normally have knowledge of any Default or Event of Default and whether or not the signer knows of any Default or Event of Default that occurred during such period. If he or she does, the certificate shall describe the Default or Event of Default, its status and what action the Company is taking or proposes to take with respect thereto. Section 5.04. Limitation on Debt. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, Incur any Debt, unless the Leverage Ratio for the most recently completed fiscal quarter for which financial statements are available would be less than 4.00 to 1.00; provided that the Company shall not permit Telefónica Panamá to Incur any Debt under this Section 5.04(a) unless Telefónica Panamá is a Subsidiary Guarantor. (b) Permitted Debt (provided that if Telefónica Panamá is not a Subsidiary Guarantor, it may not Incur Debt under clauses (vii) (other than Permitted Refinancing Debt with respect to Debt it could have itself Incurred) or (xii) below (other than guarantees of Debt it could have itself Incurred)): (i) any direct or indirect obligations owed in connection with the payment obligations on the Notes; (ii) Debt (other than Debt described in another clause of this Section 5.04) outstanding, committed or mandated on the date of this Indenture; (iii) Pari Passu Debt of the Company and Debt of its Subsidiaries under Credit Facilities and any Permitted Refinancing Debt in respect thereof, in an aggregate principal amount at any one time outstanding that does not exceed an
65 amount equal to the greater of (a) $50.0 million (or the U.S. Dollar Equivalent of any other currency) and (b) 6.0% of Total Assets, plus, (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the case of any refinancing of Debt permitted under this clause (iii) or any portion thereof, the aggregate amount of fees, underwriting discounts and commissions, premiums and other costs and expenses Incurred in connection with such refinancing; (iv) Debt owed by the Company to any of its Restricted Subsidiaries or Debt owed by any of the Restricted Subsidiaries to the Company or any other of the Restricted Subsidiaries; provided, however, that upon either (1) the transfer or other disposition by the Company or such Restricted Subsidiary of any Debt so permitted to a Person other than the Company or any of its Restricted Subsidiaries or (2) such Restricted Sub Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition; (v) Acquired Debt; (vi) Shareholder Loans or Intergroup Subordinated Loans; (vii) Permitted Refinancing Debt of the Company or any Restricted Subsidiary Incurred in exchange for or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each case, successive refinancings, extensions and renewals), Debt of the Company or any Restricted Subsidiary Incurred pursuant to Section 5.04(a) or clauses (i), (ii), (v), or this clause (vii), as the case may be; (viii) Debt of the Company or any Restricted Subsidiary represented by health, disability or other employee benefits, payment obligations in connection with self- insurance or similar requirements of the Company or any Restricted Subsidiary in the ordinary course of business; (ix) customary indemnification, adjustment of purchase price or similar obligations, in each case, Incurred in connection with the disposition of any assets of the Company or any Restricted Subsidiary, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than Guarantees of Debt Incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such Incurrence of such Debt will at no time exceed the gross proceeds actually received by the Company or any Restricted Subsidiary in connection with the related disposition;
66 (x) obligations in respect of (a) customs, VAT or other tax guarantees, (b) bid, performance, completion, guarantee, surety and similar bonds, including Guarantees or obligations of the Company or any Restricted Subsidiary with respect to letters of credit supporting such obligations and (c) the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt for borrowed money; (xi) Debt of the Company or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; provided that such Debt is extinguished within five Business Days of Incurrence; (xii) guarantees by the Company or any Restricted Subsidiary of Debt or any other obligation or liability of the Company or any Restricted Subsidiary (other than of any Debt Incurred in violation of this covenant); provided, however, that if the Debt being guaranteed is subordinated in right of payment to the Notes or any Guarantee of the Notes, then such guarantee shall be subordinated substantially to the same extent as the relevant Debt guaranteed; (xiii) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to the Company or any Restricted Subsidiary in connection with the issuance of notes or other similar debt securities intended to be supported primarily by the payment obligations of the Company or any Subsidiary of the Company in connection with any vendor financing platform; (xiv) Debt consisting of Interest Rate, Currency or Commodity Price Agreements; (xv) Debt consisting of (a) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company or a Restricted Subsidiary or (b) Debt otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of the Company or a Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Permitted Refinancing Debt in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Debt Incurred pursuant to this clause (xv) will not exceed the greater of (1) $20.0 million and (2) 2.0% of Total Assets at any time outstanding; or
67 (xvi) Debt not otherwise permitted to be Incurred pursuant to clauses (i) through (xv) above, which, together with any other outstanding Debt Incurred pursuant to this clause (xvi), including any Permitted Refinancing Debt in respect thereof, has an aggregate principal amount at any time outstanding not in excess of the greater of $65.0 million and 8.0% of Total Assets, plus, in the case of any refinancing of Debt permitted under this clause (xvi) or any portion thereof, the aggregate amount of fees, underwriting discounts and commissions, premiums and other costs and expenses Incurred in connection with such refinancing. (c) The Company will not incur any Debt (including Permitted Debt) that is contractually subordinated in right of payment to any other Debt of the Company unless such Debt is also contractually subordinated in right of payment to the Notes on substantially identical terms; provided, however, that no Debt will be deemed to be contractually subordinated in right of payment to any other Debt of the Company solely by virtue of being unsecured or by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the application of waterfall or other payment ordering provisions affecting different tranches of Debt. (d) For the purposes of determining compliance with this covenant, in the event that an item of Debt meets the criteria of more than one of the types of Permitted Debt or is entitled to be Incurred pursuant to the first sentence of Section 5.04(a) the Company in its sole discretion may classify and from time to time reclassify such item of Debt or any portion thereof and only be required to include the amount of such Debt as one of such types. (e) For the purposes of determining compliance with any covenant in this Indenture or whether an Event of Default has occurred, in each case, where Debt is denominated in a currency other than U.S. Dollars, the amount of such Debt will be the U.S. Dollar Equivalent determined on the date of such Incurrence; provided, however, that if any such Debt that is denominated in a different currency is subject to an Interest Rate, Currency or Commodity Price Agreement with respect to U.S. Dollars covering principal and premium, if any, payable on such Debt, the amount of such Debt expressed in U.S. Dollars will be adjusted to take into account the effect of such an agreement. Section 5.05. Limitation on Restricted Payments. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, directly or indirectly, (i) declare or pay any dividend or make any distribution in respect of Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire the (ii) purchase, redeem, or otherwise acquire or retire for value (A) any (B) any options, (A) and (B) above, in each case, other
68 than (x) from the Company or any of its Restricted Subsidiaries and (y) any such acquisition of the shares or rights to acquire shares of a Restricted Subsidiary by the Company or another Restricted Subsidiary); (iii) redeem, repurchase, defease or otherwise acquire or retire for value prior to any scheduled maturity, repayment or sinking fund payment the any direct or indirect obligations by the Company for the sole purpose of effectuating payments on the Notes); or (iv) make any Investment, other than Permitted Investments; (each of clauses (i) through (iv) Restricted Payment unless, at the time of and after giving pro forma effect to such Restricted Payment: (A) no Default or Event of Default shall have occurred and be continuing or would result from such Restricted Payment; and (B) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter period, the Company could Incur at least $1.00 of additional Debt pursuant to Section 5.04(a); and (C) upon giving effect to such Restricted Payment, the aggregate amount of all Restricted Payments from the date of this Indenture (excluding Restricted Payments permitted by subclauses (ii), (iii), (v), (vi), (vii), (ix), (x), (xi), (xii) and (xiii) of clause (c) below) is less than the sum, without duplication, of: (1) the difference of (x) 100% of cumulative Consolidated EBITDA from January 1, 2019 through the last day of the last full fiscal quarter ended immediately prior to the date annual financial statements are available minus (y) the product of 1.5 times cumulative Consolidated Interest Expense from January 1, 2019 through the last day of the last full fiscal quarter ended immediately prior to such Restricted Payment for which financial statements are available; plus (2) the net reduction in the ents in any Unrestricted Subsidiary resulting from payments of interest on Debt, dividends, return of capital, repayments of loans or advances, payments of fees or other transfers of assets, in each case to the Company or any of its Restricted Subsidiaries from such Unrestricted Subsidiary (except to the extent that any such
69 payment is included in the calculation of Consolidated EBITDA) or from redesignations of Unrestricted Subsidiaries as Restricted Subsidiaries; provided that the amount included in this clause (2) shall not exceed the amount of Investments previously made by the Company and its Restricted Subsidiaries in such Unrestricted Subsidiary; plus (3) the cash return, after the Issue Date, on any other Investment made after the Issue Date pursuant to this paragraph, as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (except to the extent that any such cash return is included in the calculation of Consolidated EBITDA), not to exceed the amount of such Investment so made; plus (4) an amount not to exceed the sum of the aggregate net proceeds received by the Company after the date of this Indenture, including the fair market value of property other Directors as evidenced by a resolution of the Board of Directors filed with the Trustee), from contributions of capital or the Redeemable Stock or Excluded Contributions), options, warrants of its Restricted Subsidiaries that has been converted into or ck (other than Redeemable Stock and other than by or from any of the Indenture; provided that any such net proceeds received by the Company from an employee stock ownership plan financed by loans from the Company or any of its Subsidiaries shall be included only to the extent such loans have been repaid with cash on or prior to the date of determination; minus (5) any of the Company or its Restricted depositary institution (and not returned to the Company or one of its Restricted Subsidiaries) as the result of any netting or set-off arrangement entered into by the Company or any of its Restricted Subsidiaries (except to the extent such deposits are used to satisfy obligations solely of the Company or its Restricted Subsidiaries). (b) Prior to the making of any Restricted Payment (other than with respect to an Investment in an amount not to exceed $5.0 million) the Company shall deliver to the Trustee an Of
70 required by clauses (B) and (C) above were made and stating that no Default or Event of Default has occurred and is continuing or would result from such Restricted Payment. (c) Notwithstanding the foregoing, (i) the Company may pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Company could have paid such dividend in accordance with the foregoing provision; (ii) the Company and any of the Restricted Subsidiaries may refinance any Debt as permitted by Section 5.04 in exchange for or out of the net proceeds of the sale of (other than from or to any of the Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from the Company or any Redeemable Stock) or the subordinated obligations of the Company or any Restricted Subsidiary permitted to be Incurred pursuant to Section 5.04 and that, in each case, constitutes Permitted Refinancing Debt; provided, however, that such exchange or repurchase must be made within 90 days of the issuance of Capital Stock or such subordinated obligations; (iii) the Company and any of the Restricted Subsidiaries may purchase, redeem, acquire or retire any shares of its Capital Stock solely in exchange for or out of the net proceeds of (A) the substantially concurrent sale (other than from or to any of the Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from the Company or any of the Restricted Subsidiaries) (B) an Asset Disposition to the extent of Excess Proceeds of an Asset Disposition or (C) a Sale/Leaseback Transaction of Tower Equipment that would have been an Asset Disposition but for the proviso in clause (a) of the Asset Disposition definition, provided that the Company makes an Offer to Purchase Outstanding Notes prior to reliance on this provision at 100% of their principal amount plus accrued interest to the date of purchase and then to the extent of such Excess Proceeds of an Asset Disposition; (iv) the Company and any of the Restricted Subsidiaries may make loans to employees in connecti purchase Capital Stock or otherwise in the ordinary course of business; (v) Restricted Payments that are made with Excluded Contributions; (vi) the Company and any of its Restricted Subsidiaries may repurchase or fund the repurchase of shares of the Company or Millicom held by employees or former employees of the Company or any Restricted Subsidiary in an amount not to exceed $5.0 million in any twelve month period; (vii) the Company and any of its Restricted Subsidiaries may cause a distribution of shares of any Unrestricted Subsidiary;
71 (viii) the Company or any Restricted Subsidiary may pay a Dividend on Capital Stock of any class with the proceeds of any public Equity Offering or any public sale of Qualified Capital Stock of the Company in an amount not to exceed 6.0% of the Market Capitalization of the Company at the time of such public Equity Offering or public sale of Qualified Capital Stock if after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter period the Company could Incur at least $1.00 of additional Debt pursuant to Section 5.04(a); (ix) the Company and any Restricted Subsidiary may make Restricted Payments, including the purchase of Receivables and the payment of fees, in connection with any Qualified Receivables Transaction; (x) the Company and any Restricted Subsidiary may engage in cash management and pooling transactions with Millicom and its Subsidiaries in the ordinary course of business; (xi) the Company and any Restricted Subsidiary may repay Intergroup Subordinated Loans so long as no Default or Event of Default shall have occurred and be continuing or would result from such Restricted Payment; (xii) the Company and any Restricted Subsidiary may make Restricted Payments to Millicom or any Subsidiary thereof so long as the proceeds thereof are transferred to the Company or any Restricted Subsidiary within three (3) days of the making of such Restricted Payment and do not exceed 10.0% of Total Assets; and (xiii) the Company and any of the Restricted Subsidiaries may make Restricted Payments not otherwise permitted hereby in an aggregate amount not to exceed the greater of $50.0 million and 6.0% of Total Assets. Section 5.06. Limitation on Dividend and Other Payment Restrictions Affecting Subsidiaries. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Restricted Subsidiary: (i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock to the Company or any other of its Restricted Subsidiaries or pay any Debt or other obligation owed to the Company or any other such Restricted Subsidiary; (ii) to make loans or advances to the Company or any other of the Restricted Subsidiaries; or (iii) to transfer any of its property or assets to the Company or any other of the Restricted Subsidiaries.
72 (b) Notwithstanding the foregoing, the Company may, and may permit any of its Restricted Subsidiaries to, suffer to exist any such encumbrance or restriction: (i) pursuant to any agreement in effect on the date of this Indenture; (ii) pursuant to an agreement relating to any Debt Incurred by a Person prior to the date on which such Person became such a Restricted Subsidiary and outstanding on such date and not Incurred in anticipation of becoming such a Restricted Subsidiary which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired; (iii) pursuant to an agreement by which the Company or a Restricted Subsidiary obtains financing; provided that (x) such restriction is not materially more restrictive than customary provisions in comparable financing agreements entered make payments on the Notes; (iv) pursuant to an agreement effecting a renewal, refunding or extension of Debt Incurred pursuant to an agreement referred to in clauses (i), (ii) or (iii) above; provided, however, that the provisions contained in such renewal, refunding or extension agreement relating to such encumbrance or restriction are no more restrictive in any material respect than the provisions contained in the agreement the subject management; (v) in the case of clause (a)(iii) above, restrictions contained in any security agreement (including a capital lease) securing Debt of the Company or s otherwise permitted under this Indenture, but only to the extent such restrictions restrict the transfer of the property subject to such security agreement; (vi) in the case of clause (a)(iii) above, customary nonassignment provisions entered into in the ordinary course of business in leases to the extent such provisions restrict the transfer or subletting of any such lease; (vii) pursuant to customary restrictions contained in asset sale agreements limiting the transfer of property subject to such agreements pending the closing of such sales or pursuant to customary restrictions in share purchase agreements otherwise permitted under this Indenture for the sale of Subsidiaries on such sold Subsidiaries; (viii) customary restrictions pursuant to joint venture agreements or similar documents that restrict the transfer of ownership interests in or the payment of dividends or distributions from such joint venture or similar Person or agreements entered into in the ordinary course of business; provided further that
73 ability to make payments on the Notes; or (ix) if such encumbrance or restriction is the result of applicable law or regulation. Section 5.07. Listing. The Company shall register the Notes with the SMV and list them on the PSE. Promptly after such a listing, the Company shall notify the Trustee in writing, which shall, in turn, provide notice thereof to each of the Holders. Upon registration of the Notes with the SMV and the listing of the Notes on the PSE, the Company shall comply with the reporting and other requirements set forth in the Panamanian securities law applicable to companies who have registered their securities with the SMV, as well as any corresponding requirements of the PSE. The Company shall apply to list the Notes on the Official List of the Luxembourg Stock Exchange for trading on the Euro MTF Market of the Luxembourg Stock Exchange. Each of the Company, the Trustee and the Luxembourg Paying Agent (without the need for any approvals, consents or instructions from any Holders, but in accordance with all other provisions applicable thereto) are authorized to join in the execution of any amendment (including amendment and restatement) of this Indenture or the Notes to the extent required to provide such listing. Promptly after such a listing, the Company shall so notify the Trustee, which shall provide notice thereof to each of the Holders. In the event that the Notes are admitted to listing on the Luxembourg Stock Exchange, the Company shall use commercially reasonable efforts to maintain such listing. If the Company determines that it is unduly burdensome to maintain a listing on the Luxembourg Stock Exchange, the Company may delist the Notes from the Luxembourg Stock Exchange and, in the event of such delisting, the Company shall use commercially reasonable efforts to seek an alternative admission to listing, trading and/or quotation for the Notes on a different section of the Luxembourg Stock Exchange or by such other listing authority, stock exchange and/or quotation system inside or outside the European Union as the Company may decide. Section 5.08. Limitat Debt or any Debt. The Company shall not, and shall not permit any of its Restricted Subsidiaries to, Incur or suffer to exist any Lien (other than Permitted Liens) on or with respect to any property or assets now owned or hereafter acquired to secure Debt unless the Notes are equally and ratably secured by such Lien; provided that, if the Debt secured by such Lien is subordinated or junior in right of payment to the Notes, then the Lien securing such Debt shall be subordinated or junior in priority to the Lien securing the Notes. Section 5.09. . The Company may not permit any of its Restricted Subsidiaries, directly or indirectly, to assume, Guarantee or in any other manner become liable with respect to any of the
74 Section 5.10. Limitation on Asset Dispositions. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, make any Asset Disposition in one or more related transactions unless: (i) the Company or such Restricted Subsidiary, as the case may be, receives consideration for such disposition at least equal to the fair market value management or Board of Directors in good faith; (ii) unless the Asset Disposition is a Permitted Asset Swap, at least 75% of the consideration for such disposition consists of (A) cash or Cash Equivalents, (B) Debt or other liabilities (including Debt or liabilities that are subordinated to the Notes) or Debt or other liabilities of such Restricted Subsidiary relating to such assets and, in each case, the Company or the Restricted Subsidiary, as applicable, is released from all liability on the Debt assumed or (C) any Capital Stock or assets of the kind referred to in clauses (4) or (5) of Section 5.10(a)(iii)(A) hereof, or any combination thereof; (iii) (A) within 365 days of such Asset Disposition, the Net Available option): (1) to repay, redeem, retire or cancel outstanding Senior Secured Debt; (2) first, to redeem Notes or purchase Notes pursuant to an offer to all Holders at a purchase price equal to at least 100% of the principal amount thereof, plus accrued and unpaid interest and second, to the extent any Net Available Proceeds from such Asset Disposition remain, to any other use as determined by the Company or the applicable Subsidiary of the Company that is not otherwise prohibited by this Indenture; (3) to repurchase, prepay, redeem or repay Pari Passu Debt; provided that the Company makes an offer to all Holders on a pro rata basis to purchase their Notes in accordance with the provisions set forth below for an Excess Proceeds Offer; (4) to acquire all or substantially all of the assets of, or any Capital Stock of, another Related Business, if, after giving effect to any such acquisition of Capital Stock, the Related Business is or becomes a Subsidiary of the Company; (5) to make a capital expenditure or acquire other assets (other than Capital Stock and cash or Cash Equivalents), rights (contractual or otherwise) and properties, whether tangible
75 or intangible (including ownership interests) that are used or intended for use in connection with a Related Business; (6) to the extent permitted, to redeem Notes as provided under Section 4.02, Section 4.03 or Section 4.10; or (7) any combination of the foregoing subclauses (1) through (6) of this clause (iii)(A); or (B) enter into a binding commitment to apply the Net Available Proceeds pursuant to subclauses (4) and (5) of clause (A); provided that such binding commitment (or any subsequent binding commitment replacing the initial binding commitment that is entered into within 180 days following the aforementioned 365-day period) shall be treated as a permitted application of the Net Available Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period. (b) For purposes of Section 5.10(a), any securities, notes or other obligations received by the Company or any such Restricted Subsidiary from such transferee that are promptly converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion), shall be deemed cash. (c) The amount of such Net Available Proceeds not so used as set forth in the Excess Proceeds such Net Available Proceeds, the Company may temporarily reduce revolving credit borrowings or otherwise use such Net Available Proceeds in any manner that is not prohibited by the terms of this Indenture. (d) When the aggregate amount of Excess Proceeds exceeds $30.0 million, the Company shall, within 15 Business Days of the end of the applicable period in clause (a)(iii) of this Section 5.10 Excess Proceeds Offer from all Holders and from the holders of any Pari Passu Debt, to the extent required by the terms thereof, on a pro rata basis, in accordance with the procedures set forth in this Indenture or the agreements governing any such Pari Passu Debt, the maximum principal amount (expressed as a minimum amount of $200,000 and integral multiples of $1,000 in excess thereof) of the Notes and any such Pari Passu Debt that may be purchased with the amount of the Excess Proceeds. The offer price as to each Note and any such Pari Passu Debt will be payable in cash in an amount equal to (solely in the case of the Notes) 100% of the principal amount of such Note and (solely in the case of Pari Passu Debt) no greater than 100% of the principal amount (or accreted value, as applicable) of such Pari Passu Debt, plus, in each case, accrued and unpaid interest, if any, to the date of purchase.
76 (e) To the extent that the aggregate principal amount of Notes and any such Pari Passu Debt tendered pursuant to an Excess Proceeds Offer is less than the aggregate amount of Excess Proceeds, the Company may use the amount of such Excess Proceeds not used to purchase Notes and Pari Passu Debt for purposes that are not otherwise prohibited by this Indenture. If the aggregate principal amount of Notes and any such Pari Passu Debt validly tendered and not withdrawn by holders thereof exceeds the aggregate amount of Excess Proceeds, the Notes and any such Pari Passu Debt to be purchased will be selected by the Note Registrar or the Paying Agent on a pro rata basis (based upon the principal amount of Notes and the principal amount or accreted value of such Pari Passu Debt tendered by each holder as provided or calculated by the Company or, in the case of Global Notes, based on a method as the Registered Depositary may require). Upon completion of each such Excess Proceeds Offer, the amount of Excess Proceeds will be reset to zero. (f) If the Company is obliged to make an Excess Proceeds Offer, the Company shall purchase the Notes and Pari Passu Debt, at the option of the holders thereof, in whole or in part in a minimum amount of $200,000 and integral multiples of $1,000 in excess thereof on a date that is not later than 60 days from the date the notice of the Excess Proceeds Offer is given to such holders, or such later date as may be required under the Exchange Act. (g) If the Company is required to make an Excess Proceeds Offer, the Company shall comply with the applicable tender offer rules, including Rule 14e-1 under the Exchange Act and any other applicable securities laws and regulations, including the requirements of any applicable securities exchange on which Notes are then listed. To the extent that the provisions of any securities laws or regulations conflict with the provisions of this Section 5.10 or Section 4.09, the Company will comply with such securities laws and regulations and will not be deemed to have breached its obligations described in this Section 5.10 or Section 4.09 by virtue thereof. Section 5.11. Transactions with Affiliates. (a) The Company may not, and may not permit any of its Restricted Subsidiaries to, enter into any transaction that involves in any of the Restricted Subsidiaries), either directly or indirectly, unless such transaction is on terms no less favorable to the Company or such Restricted Subsidiary than those that Affiliate of the Company or such Restricted Subsidiary. For any such transaction that of Directors shall determine that such transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution filed with the Trustee. (b) The foregoing restriction shall not apply to (i) reasonable and customary directors, officers or e reimbursement of reasonable and customary payments or reasonable and customary expenditures made or Incurred by such Persons as directors, officers or employees; (ii) any Restricted Payment permitted under Section 5.05; (iii) any loan or advance by the
77 Company or any of its Restricted Subsidiaries to employees of any of them in the ordinary course of business; (iv) transactions with customers, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with this Indenture; (v) any transaction with a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations; (vi) the payment to Millicom or any Subsidiary of Millicom of all reasonable expenses Incurred by Millicom or any Subsidiary of Millicom in connection with its direct or indirect Investment in the Company, its Subsidiaries and unpaid amounts accrued for prior periods; (vii) the payment to Millicom and its Related Parties of Value Creation Fees of up to the greater of $50.0 million and 6.0% of Total Assets per annum; (viii) the issuance of shares or Intergroup Subordinated Loans; (ix) transactions with Affiliates in their capacity as holders of indebtedness of the Company or any Restricted Subsidiary; (x) Cash Management Loans; (xi) any transaction under any tax sharing agreement or arrangement and payments pursuant thereto between or among Millicom, any Subsidiary of Millicom, the Company, a Restricted Subsidiary or any other Person not otherwise prohibited by this Indenture and any payments or other transactions pursuant to a tax sharing agreement between the Company or a Restricted Subsidiary and any other Person with which the Company or any of the Restricted Subsidiaries files a consolidated tax return or with which the Company or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation; provided that any such payments or other transactions pursuant to a tax sharing agreement under this clause (xi) does not exceed the taxes that would be payable by the Company and its Subsidiaries on a stand-alone basis or as a stand-alone tax group, reduced by any such taxes paid by the Company and/or any of its Subsidiaries; and (xii) contributions to the common equity capital of the Company or the issue or sale of Capital Stock of the Company. Section 5.12. [Reserved]. Section 5.13. Payment of Taxes. The Company will pay or discharge or cause to be paid or discharged, before the same becomes delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Company or any of its Restricted property, and (2) all material lawful claims for labor, materials and supplies which, if provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings, except where failure to pay or discharge such taxes, assessments, governmental charges or claims would not, singly or in the aggregate, have a material adverse effect. Section 5.14. Provision of Financial Information. (a) The Company will furnish to the Trustee and the Holders, in English, without cost to each Holder: (1) within 120 days after the e
78 two most recent years (including income statements, balance sheets, cash flow statements accordance with IFRS, content substantially similar to the corresponding section of the Offering Memorandum after the Issue Date) and, with respect to the annual financial information, a report te of knowledge after due inquiry, the Company during such period has kept, observed, performed and fulfilled each and every covenant and condition contained in this Indenture and that such officer has obtained no knowledge of any Default or Event of Default or, if applicable, describing any failure to keep, observe, perform or fulfill any such covenant or condition and/or describing any such Default or Event of Default and ; (2) within 60 days after the end of each of the first unaudited consolidated financial statements for the period then ended and the comparable period in the prior year (including income statements, balance sheets, cash flow with IFRS, Issue Date); and (3) any other information, report and/or notice of relevant fact (notificación de hecho relevante) delivered by the Company to the SMV and/or the PSE. (b) In addition, so long as the Notes remain Outstanding and during any period during which the Company is not subject to Section 13 or 15(d) of the Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Company will furnish to the Noteholders and prospective purchasers of the Notes upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. (c) So long as the Notes are listed on the Luxembourg Stock Exchange, copies of the information and reports referred to in Section 5.14(a)(1) and (2) will be available during normal business hours at the offices of the Luxembourg Paying Agent in Luxembourg. (d) Delivery of any information, documents and reports to the Trustee pursuant shall not constitute constructive notice of any information contained therein or with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively s Certificate). Section 5.15. Limited Condition Transaction. (a) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this
79 Indenture which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Company, be deemed satisfied, so long as no Default or Event of Default, as applicable, exists on the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into. For the avoidance of doubt, if the Company has exercised its option under the first sentence of this paragraph, and any Default or Event of Default occurs following the date such definitive agreement for a Limited Condition Transaction is entered into and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder. (b) In connection with any action being taken in connection with a Limited Condition Transaction for purposes of: (i) determining compliance with any provision of this Indenture which requires the calculation of any financial ratio or test, including the Leverage Ratio; or (ii) testing baskets set forth in this Indenture (including baskets measured as a percentage of Total Assets); LCT Election date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreement (or other relevant definitive documentation) for LCT Test Date provided, however, that the Company shall be entitled to subsequently elect, in its sole discretion, the date of consummation of such Limited Condition Transaction instead of the LCT Test Date as the applicable date of determination, and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence of Debt and the use of proceeds thereof), as are appropriate and consistent with the pro forma adjustment provisions set forth in the of its Restricted Subsidiaries could have taken such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with. If the Company has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets, of the Company and its Restricted Subsidiaries at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Company has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, test or basket availability under
80 this Indenture (including with respect to the Incurrence of Debt or Liens, or the making of Asset Dispositions, acquisitions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Company or any of its Restricted Subsidiaries or the designation of an Unrestricted Subsidiary) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and the use of proceeds thereof) have been consummated. Section 5.16. Limitation on Lines of Business. The Company, together with its Restricted Subsidiaries, shall not primarily engage in any business other than in a Related Business. Section 5.17. Reporting and Payments to Regulatory, Stock Exchange and Clearing Agency. The Company shall deliver, pay or notify, as applicable, to the PSE and the SMV the following: (i) within 90 days after the end of each fiscal year, the informe annual de actualizatión de la compañía), for the previous fiscal year; (ii) within 60 days after the quarterly financial statements together with its quarterly report (informe de actualización trimestral) within the timeframes prescribed by applicable law, for the previous fiscal quarter; (iii) notification of any material events of importance to noteholders (hechos relevantes); (iv) pay the annual supervision fee and any applicable fees and expenses; (v) pay any applicable fees and expenses to LatinClear; and (vi) prepare or deliver any additional report or information required by applicable law, regulation or PSE rules. So long as the Notes are listed on the PSE, copies of these reports will be made available to investors through the PSE website. Section 5.18. Unrestricted Subsidiaries. The Company may designate any of its subject to the conditions set in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary. Section 5.19. Subsidiary Guarantors. If any or all of the Subsidiaries of the Company represent more than 20%, in the aggregate, of any financial parameter set forth in Rule 1-02(w) of Regulation S-X under the Securities Act of 1933, as amended in effect on the date hereof, then all such Subsidiaries shall become Subsidiary Guarantors within 5 Business Days; provided, however, that any Subsidiary with total assets of less than $250,000 shall not be considered in this calculation nor shall any such Subsidiary be required to become a Subsidiary Guarantor as a result of this provision; provided, further, that Telefónica Panamá shall not be required to become a Subsidiary Guarantor as a result of this Section 5.19.
81 Section 5.20. Release from Certain Covenants. If on any date the Notes have an Investment Grade rating from both Rating Agencies and no Event of Default has occurred and is continuing, and notwithstanding that the Notes may later cease to have such Investment Grade ratings, the Company and its Restricted Subsidiaries shall be released from their obligations to comply with Sections 5.04, 5.05, 5.06, 5.10 and Section 5.21(a)(ii)(C). Section 5.21. Merger, Consolidations and Certain Sales of Assets of the Company. (a) The Company may not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into the Company; or (ii) directly or indirectly, convey, transfer, sell, lease or otherwise unless: (A) in a transaction in which the Company does not survive or in which the Company sells, leases or otherwise disposes of all or substantia (1) shall expressly assume, by a supplemental indenture executed and delivered to obligations under this Indenture and (2) is organized under the laws of (x) Panama or (y) the United States or any State thereof or the District of Columbia or (z) any other country if such successor entity undertakes, in such supplemental indenture, to pay such additional amounts in respect of principal (and premium, if any) and interest as may be necessary in order that the net amounts paid pursuant to the Notes after deduction or withholding of any present or future withholding taxes, levies, imports or charges whatsoever imposed by or for the account of such country or any political subdivision or taxing authority thereof or therein shall equal the respective amounts of principal (and premium, if any) and interest specified in the Notes; (B) immediately after giving effect to such transaction and of its Restricted Subsidiaries as a result of such transaction as having been Incurred by the Company or such Restricted Subsidiary at the time of the transaction, no Default or Event of Default shall have occurred and be continuing; (C) immediately after giving effect to such transaction and any of its Restricted Subsidiaries, as a result of such transaction as having been Incurred at the time of the transaction, (1) the Company (including any successor entity) could Incur at least $1.00 of additional Debt
82 pursuant to Section 5.04(a) or (2) the Leverage Ratio would not be greater than such ratio before giving effect to such transaction; provided, however, that this clause (C)(2) will not apply if the Person merged or consolidated with or into the Company is a Subsidiary of Millicom incorporated in Panama and the transaction is carried out on terms not materially less favorable to the Company than those that might be obtained at the time from Persons that are not Affiliates of the Company, and provided further, that this clause (C) will not apply if, in the good determination shall be evidenced by a Board Resolution, the principal f incorporation; and (D) Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental indenture, comply with this Section 5.21 and that all conditions precedent herein provided for relating to such transaction have been complied with. (b) Upon any consolidation or merger of the Company in which the Company is not the continuing corporation or any transfer (excluding any lease) of all or substantially all of the assets of the Company in accordance with Section 5.21(a), the successor Person shall succeed to, and be substituted for, and may exercise every right and power of, the Company under the Notes and this Indenture with the same effect as if such successor Person had been named as the Company. Section 5.22. Change of Control. Within 60 days of the occurrence of a Change of Control Triggering Event, the Company shall be required to make an Offer to Purchase all Outstanding Notes at a purchase price equal to 101% of their principal amount plus accrued interest and any Additional Amounts thereon to the date of purchase (subject to the right of holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date). ARTICLE 6 EVENTS OF DEFAULT AND REMEDIES Section 6.01. Events of Default Event of Default (a) failure to pay principal of (or premium if any, on) any Note when due; (b) failure to pay any interest (including Additional Amounts) on any Note when due, continued for 15 days;
83 (c) default in the payment of principal and interest on Notes required to be purchased pursuant to an Offer to Purchase as described under Section 5.22 and Section 5.10 when due and payable; (d) failure to perform or comply with the provisions described under Sections 5.21 and 5.04 (e) failure of the Company to perform any other of the covenants or agreements under this Indenture or the Notes which failure continues for 60 days after written notice to the Company by the Trustee or Holders of at least 25% in aggregate principal amount of Outstanding Notes; (f) default or defaults under the terms of any instrument evidencing or securing debt or debt of any Material Subsidiary having an outstanding principal amount of $25.0 million individually or in the aggregate which default or defaults results in the acceleration of the payment of such debt or constitutes the failure to pay such debt when due at Stated Maturity after giving effect to the expiration of any applicable grace periods and such failure to make any payment has not been waived or the Stated Maturity of such debt has not been extended; (g) the rendering of a final judgment or judgments (not subject to appeal) against the Company or any Material Subsidiary in an aggregate amount in excess of $25.0 million which remains undischarged or unstayed for a period of 60 days after the date on which the right to appeal has expired; (h) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law; (B) a decree or order adjudging the Company or any Material 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 Material Subsidiary under any applicable federal, state or foreign law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Material 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 for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or (C) any intervention or notice of impending intervention, both temporary or otherwise, by ASEP or any other regulatory authority of the Panamanian Government, whether (i) in the public interest, (ii) to ensure the continued provision of public services pursuant to Article 51 of Panamanian Law 31 of 1996 or (iii) for any other stated purpose, the effect of which is to prevent the commencement or continuation of any insolvency or liquidation proceedings; and (i) the commencement by the Company or any Material Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order
84 for relief in respect of the Company or any Material Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, government appointed controller pursuant to Panamanian Law 31 of 1996 or other similar official of the Company or any Material Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company or any Material Subsidiary in furtherance of any such action, or the making by it of a petition before the ASEP or any other whether (i) in the public interest, (ii) due to an inability to continue to provide public services pursuant to Article 51 of Panamanian Law 31 of 1996 or (iii) otherwise. Section 6.02. Acceleration of Maturity; Rescission and Annulment. (a) If an Event of Default specified in Sections 6.01(h) or (i) above shall occur, the maturity of all Outstanding Notes shall automatically be accelerated and the principal amount of the Notes, together with any premium, accrued interest or Additional Amounts thereon, shall be immediately due and payable. If any other Event of Default shall occur and be continuing, the Trustee or the Holders of not less than 25% of the aggregate principal amount of the Notes then Outstanding may, by written notice to the Company (and to the Trustee if given by Noteholders), declare the principal amount of the Notes, together with accrued interest thereon, immediately due and payable. The right of the Noteholders to give such acceleration notice shall terminate if the event giving rise to such right shall have been cured before such right is exercised. Any such declaration may be annulled and rescinded by written notice from the Trustee or Majority Noteholders to the Company if (i) all amounts then due with respect to the Notes are paid (other than amount due solely because of such declaration) and all other defaults with respect to the Notes are cured, and (ii) the Company has paid the Trustee its reasonable compensation and reimbursed the Trustee for its reasonable expenses, disbursements and advances in connection with such acceleration and rescission. (b) In case the Company shall fail to comply with its obligations under this Indenture or the Notes and such failure shall be continuing, the Trustee will be under no obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Noteholders, unless such Noteholders shall have offered to the Trustee indemnity and/or security satisfactory to it. The Majority Noteholders will 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 the Trustee may refuse to follow any direction that conflicts with the provisions of this Indenture or applicable law, for which the Trustee is not indemnified and/or provided with security to its satisfaction, may involve the Trustee in personal liability, or for which the Trustee determines may be unduly prejudicial to the rights of other Noteholders not taking part in such direction, instruction or other communication (it
85 being understood that the Trustee shall have no duty to ascertain whether or not such actions or forbearances are or would be unduly prejudicial to such other Noteholders). Section 6.03. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Noteholder 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 6 or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Noteholders, as the case may be. No waiver of any Event of Default, whether by the Trustee or by the Noteholders, shall extend to or shall affect any subsequent Event of Default or shall impair any remedy or right consequent thereon. Section 6.04. Waiver of Past Defaults. (a) The Majority Noteholders may on behalf of the Noteholders of all the Notes waive any past Default hereunder and its consequences, except a Default not theretofore cured: (i) in the payment of the principal of (or premium, if any) or interest on any Note (including any Note which is required to have been purchased pursuant to an Offer to Purchase made by the Company), or (ii) in respect of a covenant or provision hereof which under Article 6 or Article 7 cannot be modified or amended without the consent of the Noteholder of each Outstanding Note affected. (b) 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 impair any right consequent thereon. Section 6.05. Trustee May File Proofs of Claim. (a) In case of pendency in any receivership, insolvency, bankruptcy, liquidation, readjustment, reorganization or any other judicial proceedings relating to the Company or any obligor on the Notes or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for payment of overdue principal or interest) shall be entitled and empowered by intervention in such proceedings or otherwise to: (i) file and prove a claim for the whole amount of principal and interest owed and unpaid in respect of the Notes and to file such other papers or documents as may be necessary and advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 7.05) and of the Noteholders allowed in such judicial proceeding; and
86 (ii) collect and receive any moneys or other property payable or deliverable on any such claims and to distribute same. (b) In any such event, any receiver, assignee, trustee, liquidator or sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Noteholder to make such payment to the Trustee and in the event that the Trustee shall consent to the making of such payments directly to the Noteholders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due to the Trustee under Section 7.05. (c) Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such proceeding. (d) With the consent of the Majority Noteholders, the Trustee shall be entitled to participate as a member of any official committee of creditors in the matters it deems advisable. Section 6.06. Trustee May Enforce Claims Without Possession of Notes. All rights of action and claims under this Indenture or the Notes may be prosecuted and enforced by the Trustee without the possession of any of the Notes or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agent and counsel, be for the ratable benefit of the Noteholders. Section 6.07. Application of Money Collected. Any money collected by the Trustee with respect to the Notes 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 principal or interest, upon presentation of the Notes and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid: FIRST: To the payment of all amounts due the Trustee under Section 7.05 hereof; SECOND: To the payment of all amounts due any Agent (except to the extent the Company or any of its Affiliates is acting as an Agent). THIRD: To the payment of the amounts then due and unpaid upon the Notes for principal and interest, in respect of which or for the benefit of which such money has been collected, ratably among Notes, without preference or priority of any kind, according to the amounts due and payable on such Notes for principal and interest, respectively.
87 Section 6.08. Limitation on Suits. No Noteholder shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Notes or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless: (a) such Noteholder has previously given written notice to the Trustee of a continuing Event of Default with respect to Notes; (b) the Noteholders of not less than 25% in aggregate principal amount of the then Outstanding Notes shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder; (c) such Noteholder or Noteholders have offered to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in compliance with such request; (d) the Trustee for 60 calendar days after its receipt of such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and (e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Majority Noteholders; it being understood and intended that no one or more Noteholders 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 Noteholder, or to obtain or to seek to obtain priority or preference over any other Noteholder or to enforce any right under this Indenture, except in the manner herein provided and for the equal and proportionate benefit of all the Noteholders. Section 6.09. Unconditional Right of Noteholders to Receive Principal and Interest and Other Amounts. Notwithstanding any other provisions in this Indenture, the Noteholders shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest and other amounts on such Note on the respective maturities or due dates expressed in such Note (or, in the case of redemption or repayment, on the Optional Redemption Date, the Early Tax Redemption Date or the Stated Maturity, as the case may be) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder. Section 6.10. Restoration of Rights and Remedies. If the Trustee or any Noteholder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, then and in every such case the Company, the Trustee and the Noteholders shall, subject to any determination in such proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the Noteholders shall continue as though no such proceeding had been instituted. Section 6.11. Rights and Remedies Cumulative. Except as otherwise provided in the last paragraph of Section 2.13, no right or remedy herein conferred upon or reserved to the Trustee or to the Noteholders is intended to be exclusive of any other right or
88 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 6.12. Control by Noteholders. The Majority Noteholders 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 with respect to the Notes; provided that: (a) the Trustee shall have the right to decline to follow any such direction if the Trustee determines that the action so directed may not lawfully be taken or would conflict with this Indenture or if the Trustee in good faith shall, by a Responsible Officer, determine that the proceedings so directed would involve it in personal liability or it believes it will not be indemnified and/or provided security to its satisfaction against the costs, expenses and liabilities which might be incurred by it in complying with its request or be unjustly prejudicial to the Noteholders not taking part in such direction; and (b) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction. Section 6.13. Undertaking for Costs. All parties to this Indenture agree, and each Noteholder by its acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 6.13 shall not apply to any suit instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders, holding in the aggregate more than 10% in principal amount of then Outstanding Notes, or to any suit instituted by any Noteholder for the enforcement of the payment of the principal of or interest on any Note on or after the respective maturities expressed in such Note (or, in the case of redemption or repayment, on or after the applicable redemption date). Section 6.14. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
89 ARTICLE 7 CONCERNING THE TRUSTEE Section 7.01. Certain Rights and Duties of Trustee. (a) Except during the continuance of an Event of Default, (i) the Trustee undertakes to perform 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. (ii) 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; but in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein). (b) In case an Event of Default has occurred (which has not been cured or waived), the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent Person would exercise or use under the circumstances in the conduct of his or her own affairs. (c) Any request, direction, order or demand of the Company mentioned herein respect thereof be herein specifically prescribed); and any resolution of the Board of Directors shall be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Company; (d) The Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture, and may refuse to perform any duty or exercise any such rights or powers unless it shall have been offered security and/or indemnity to its satisfaction against the costs, expenses and liabilities which may be incurred therein or thereby; (e) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that this subsection (e) shall not be construed to limit the effect of subsection (a) of this Section 7.01; (f) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee appointed with due care by it hereunder;
90 (g) 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 Majority Noteholders, 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, under this Indenture; and (h) The Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, entitlement order, approval or other paper or document; (i) The Trustee shall have no obligation to invest and reinvest any cash held pursuant to this Indenture in the absence of timely and specific written investment direction from the Company. In no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Company to provide timely written investment direction; (j) The Trustee shall not be deemed to have knowledge of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a Default or Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Company, the Notes and this Indenture; (k) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder and under the Notes, the Principal Paying Agent and each other Agent, custodian and other Person employed to act hereunder; (l) The Trustee setting forth the names of individuals and/or titles of officers authorized at such time to signed by any P specified as so authorized in any such certificate previously delivered and not superseded; and (m) 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 satisfactory to it against such risk or liability is not reasonably assured to it. 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 7.01.
91 (n) Certificate, from time to time, as necessary or appropriate in order to ascertain compliance with the requirements of this Indenture and the Notes and may consult with counsel and the advice or opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion of counsel. (o) The Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including without limitation, acts of God; earthquakes; fires; floods; wars; civil or military disturbances; sabotage; epidemics; riots; interruptions, loss or malfunctions of utilities, computer (hardware or software) or communications service; accidents; labor disputes; acts of civil or military authority or governmental actions; it being understood that the Trustee shall use reasonable efforts, which are consistent with accepted practices in the banking industry, to resume performance as soon as practicable under the circumstances. (p) The Trustee is not required to give any bond or surety with respect to the performance of its duties or the exercise of its powers under this Indenture. (q) The permissive rights of the Trustee enumerated herein shall not be construed as duties. Section 7.02. Trustee Not Responsible for Recitals; Etc. The recitals contained as the statements of the Company and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the Company of any of the Notes or of the proceeds of such Notes. Section 7.03. Trustee and Others May Hold Notes. The Trustee or any Paying Agent or Note Registrar or any other Authorized Agent, or any Affiliate thereof, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Company or any other obligor on the Notes with the same rights it would have if it were not Trustee, Paying Agent, Note Registrar or such other Authorized Agent. Section 7.04. Moneys Held by Trustee or Paying Agent. (a) Whenever the Company shall have one or more Paying Agents, the Company will on or prior to 10 a.m. (New York City time) one Business Day prior to each due date of the principal of (and premium, if any) or interest on any Notes, make such payments by depositing with the Trustee or a Paying Agent an amount sufficient to make such payments, such amount to be held in trust by the Trustee or the Paying Agent for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Trustee) such Paying Agents will promptly than the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent shall execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
92 with the Trustee, subject to the provisions of this Section 7.04, to the effect that such Paying Agent will: (i) hold all amounts held by it for the making of payments in respect of the Notes in trust for the benefit of the Persons entitled thereto until such amounts shall be paid to such Persons or otherwise disposed of as herein provided; (ii) provide the Trustee notice of any Default by the Company in the making of payments in respect of the Notes; and (iii) at any time during the continuance of any such Default, upon the written request of the Trustee, forthwith pay to the Trustee all amounts so held in trust by such Paying Agent. (b) 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 deliver, or direct any Paying Agent to pay or deliver, to the Trustee all amounts held in trust by the Company or such Paying Agent, such amounts to be held by the Trustee upon the same trusts as those upon which such amounts 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. (c) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the making of any payment in respect of any Note and remaining unclaimed for two years after such payment has become due and payable shall be paid or returned to the Company upon written request by the Company or (if then held by the Company) shall be discharged from such trust; and Noteholders shall thereafter, as unsecured general creditors, seek recourse only to the Company for payment thereof (unless an applicable abandoned property law designates another Person), 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 that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid or redelivered to the Company. Section 7.05. Compensation of the Trustee. (a) The Company agrees: (i) to pay to the Trustee (all references in this Section 7.05 to the Trustee shall be deemed to apply to the Trustee in its capacities as Trustee, Paying Agent, Note Registrar and Transfer Agent) from time to time such compensation as the Company and the Trustee shall from time to time agree in writing for all
93 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); (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and (iii) to indemnify each of the Trustee and its officers, employees, directors and agents for, and to hold them harmless against, any loss, liability, damage, claims or expense (including, without limitation, the fees and expenses of its agents and legal counsel) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim or liabilities in connection with the exercise of its rights and/or performance of any of its powers or duties hereunder. (b) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Sections 6.01(h) or (i), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law. (c) The Trustee and the Principal Paying Agent shall have a lien prior to the Noteholders as to all property and funds held by it hereunder for any amount owing it or any predecessor Trustee or Principal Paying Agent pursuant to this Section 7.05, except with respect to funds held in trust for the benefit of the Holders of particular Notes. (d) The provisions of this Section 7.05 shall survive the termination of this Indenture and the resignation or removal of the Trustee. Section 7.06. Counsel. Before the Trustee acts or refrains from acting with respect to any matter contemp an Opinion of Counsel, which shall conform to the provisions of Section 13.01. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion as set forth in Section 7.01(a)(ii). Section 7.07. Persons Eligible for Appointment as Trustee. There shall at all times be a Trustee hereunder which shall be a corporation organized and doing business under the laws of the United States or of any State, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least $50,000,000, subject to supervision or examination by federal or state authority. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of
94 this Section 7.07, 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. In case at any time the Trustee shall cease to be eligible in accordance with this Section 7.07, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.08. Section 7.08. Resignation and Removal of Trustee; Appointment of Successor. (a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article 7 shall become effective until the acceptance of appointment by the successor Trustee under Section 7.09. (b) The Trustee may resign at any time by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee. (c) The Trustee may be removed at any time by Act of the Majority Noteholders, delivered to the Trustee and to the Company. (d) If at any time: (i) the Trustee shall cease to be eligible under Section 7.07 and shall fail to resign after written request therefor by the Company or by any such Noteholder, or (ii) 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) any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor Trustee. (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, the Company, by a Board Resolution, shall promptly appoint a successor Trustee. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed by Act of the Majority Noteholders 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 Noteholders and accepted appointment in the manner hereinafter provided, any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee.
95 (f) The Company shall give notice of each resignation and each removal of the Trustee and each appointment of a successor Trustee to all Noteholders in the manner provided in Section 13.04. Each notice shall include the name of the successor Trustee and the address of its Corporate Trust Office. Section 7.09. Acceptance of Appointment by Successor Trustee. Every successor Trustee appointed hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment within 60 days of such resignation or removal, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company, or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder. Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts. (a) If an instrument of acceptance shall not have been delivered to the Trustee within 60 days after giving such notice of resignation or removal, as the case may be, the Trustee resigning or being removed, as the case may be, may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee. (b) 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 7. (c) Any Person into which the Trustee may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such successor Trustee shall be qualified and eligible under the provisions of Section 7.07 hereof. (d) In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered by the Trustee then in office, any such successor to such authenticating Trustee may adopt such certificate of authentication and deliver the Notes so authenticated and in such case such certificate shall have the same force under the Notes and under this Indenture as if authenticated by such predecessor Trustee. (e) Notwithstanding the replacement of the Trustee pursuant to Section 7.08, der Section 7.05 shall continue for the benefit of the retiring Trustee with respect to matters or actions arising prior to such replacement.
96 Section 7.10. Appointment of Authenticating Agent. (a) At any time when any Notes remain Outstanding, the Trustee may, at the expense of the Company, appoint an authenticating agent or agents with respect to the Notes which shall be authorized to act on behalf of the Trustee to authenticate Notes issued upon original issuance, exchange, registration of transfer or redemption thereof or pursuant to Section 2.12 Authenticating Agent be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder (it being understood that wherever reference is made in this Indenture to the authentication and delivery of Notes by the include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent). Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation organized and doing business under the laws of the United States, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 7.10, the combined capital and surplus of such Authenticating Agent 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 an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 7.10. (b) Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under this Section 7.10, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent. (c) An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 7.10, the Trustee may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall mail written notice of such appointment by first-class mail, postage prepaid (or in the case of Global Notes, send in accordance with the applicable procedures of the Registered Depositary), to all Noteholders as their names and addresses appear in the Note Register. Any successor Authenticating Agent upon acceptance of its appointment
97 hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 7.10. (d) The Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this Section 7.10, and the Trustee shall be entitled to be reimbursed for such payments, subject to the provisions of Section 7.05. (e) If an appointment is made pursuant to this Section 7.10, the Notes may have endorsed thereon, in addition to th certificate of authentication in the following form: -mentioned Indenture. Citibank, N.A., as Trustee By: As Authenticating Agent By: Authorized Officer Section 7.11. Appointment of Note Registrar, Paying Agents and Transfer Agent. The Company initially appoints Citibank, N.A., as Note Registrar, Principal Paying Agent and Transfer Agent and Banque Internationale à Luxembourg SA, as Luxembourg Paying Agent in connection with the Notes. The agents hereby appointed accept such appointment and agree and undertake to comply with all the provisions of this Indenture. In acting hereunder and in connection with the Notes, each of the Principal Paying Agent, the Note Registrar and the Transfer Agent shall act solely as agents of the Company, and will not thereby assume any obligations towards or relationship of agency or trust for or with any Holder, except as expressly stated elsewhere in this Indenture (including, for the avoidance of doubt, Sections 7.04 and 7.05 hereof). So long as the Notes are listed on the Luxembourg Stock Exchange, the Company will maintain a Paying Agent in Luxembourg. If the Notes are listed on any other securities exchange, the Company will satisfy any requirement at such securities exchange as to paying agents. So long as the Notes are listed on the Luxembourg Stock Exchange, any change in the Luxembourg Paying Agent shall be notified to Noteholders by publication of notices to the Noteholders in accordance with the provisions of Section 13.04 of this Indenture. Copies of all written information provided by the Company hereunder, including without limitation, all such information and financial statements provided to the Trustee
98 under Section 5.14 hereof, shall be sent by first class mail to the Luxembourg Paying - 2953 Luxembourg, attention: Agency Services or by email to [email protected], or such other address and in such other manner as shall be designated by the Luxembourg Paying Agent to the Trustee and the Company. Section 7.12. Reports by Trustee. (a) So long as any Notes are Outstanding hereunder, the Trustee shall transmit to the Noteholders, at intervals of not more than 12 months, a brief report with respect to any of the following events which solely with respect to clause (v) below, may have occurred within the previous 12 months (but if no such event has occurred within such period no report need be transmitted): (i) Its eligibility under Section 7.07, or in lieu thereof, if to the best of its knowledge it has continued to be eligible under such Section, a written statement to such effect; (ii) The character and amount of any advances (and if the Trustee elects so to state, the circumstances surrounding the making thereof) made by the Trustee (as such) which remain unpaid on the date of such report, and for the reimbursement of which it claims or may claim a lien or charge, prior to that of the Notes, on any property or funds held or collected by it as Trustee, except that the Trustee shall not be required (but may elect) to report such advances if such advances so remaining unpaid aggregate not more than 0.5% of the principal amount of the Notes Outstanding on the date of such report; (iii) The amount, interest rate and maturity date of all other Indebtedness owing by the Company (or any other obligor on the Notes) to the Trustee in its individual capacity, on the date of such report, with a brief description of any property held as collateral security therefor; (iv) The property and funds, if any, physically in the possession of the Trustee as such on the date of such report; (v) Any additional issue of Notes which the Trustee has not previously reported; and (vi) Any action taken by the Trustee in the performance of its duties hereunder which it has not previously reported and which in its opinion materially affects the Notes. (b) A copy of each such report shall, at the time of such transmission to Noteholders, be filed by the Trustee with each stock exchange upon which the Note are listed and with the Company. The Company will notify the Trustee when the Notes are listed on any stock exchange. Section 7.13. Waiver of Damages. Anything in this Indenture to the contrary notwithstanding, in no event shall the Trustee or any Agent be liable under or in connection with this Indenture for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits,
99 whether or not foreseeable, even if the Trustee or such Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought. ARTICLE 8 CONCERNING THE HOLDERS Section 8.01. Acts of Noteholders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or Act refer to the instruments or record evidencing or embodying the same) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are received by the Trustee and, where it is hereby expressly required, by the Company. 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 7.01) conclusive in favor of the Trustee, and the Company, if made in the manner provided in this Section 8.01. (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 writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient. (c) The ownership of the Notes, the principal amount and serial numbers of Notes held by any Person, and the date or dates of holding the same, shall be proved by the Note Register and the Trustee shall not be affected by notice to the contrary. (d) Any Act of any Noteholder (i) shall bind the Holder of such Note and every future Noteholder of the same Note and the Noteholder of every Note issued upon the transfer thereof or the exchange therefore or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, or the Company in reliance thereon, whether or not notation of such action is made upon such Note. (e) The Company may fix any day as the record date for the purpose of determining the Noteholders entitled to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized or permitted to be given or taken by Noteholders. If not set by the Company prior to the first solicitation of a Noteholder made by any Person in respect of any such action, or, in the case of any such vote, prior to such vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Noteholders required to be provided pursuant to Section 2.19) prior to such first solicitation or vote, as the case may
100 be. With regard to any record date, only the Holders on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action. (f) The Notes shall vote and consent together on all matters as one class, and none of the Notes, and no tranche of Notes, shall have the right to vote or consent as a separate class on any matter. (g) Without limiting the generality of the foregoing, a Holder, including a Registered Depositary that is the Holder of a Global Note, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Registered Depositary that is the Holder of a Global Note may provide its proxy or proxies to the beneficial owners of interests in any such Global Note through such Registered Section 8.02. Notes Owned by Company and Affiliates Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Notes have concurred in any request, demand, authorization, direction, notice, consent and waiver or other Act under this Indenture, Notes which are owned by the Company or any Affiliate of the Company shall be disregarded and deemed not to be Outstanding for the purpose of any such determination except that for the purposes of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver, only Notes for which a Responsible Officer of the Trustee has received written notice of such ownership as conclusively evidenced by the Note Register shall be so disregarded. The Company shall furnish the Trustee, upon its reasonable request, with a list of such Affiliates. In case of a dispute as to such right, any decision by the Trustee, taken upon the advice of counsel, shall be full protection to the Trustee. ARTICLE 9 RESERVED ARTICLE 10 SUPPLEMENTAL INDENTURES Section 10.01. Supplemental Indenture with Consent of Noteholders. (a) With the consent of the Majority Noteholders, by Act of said Noteholders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, the Trustee and the Luxembourg Paying Agent 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 Noteholders under this Indenture (including, without limitation, any modification to the provisions of this Indenture with respect to any Offer to Purchase, provided such modifications are effected prior to the sending to any Noteholder of an Offer with respect to such Offer to Purchase) and may amend, waive or supplement the Notes; provided, however, that no such supplemental indenture, amendment, waiver or supplement shall, without the consent of the Holders of 90% of the aggregate principal amount of then Outstanding Notes affected thereby,
101 (i) change the Stated Maturity of the principal of, or any installment of interest on, any Note, or reduce the principal amount thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or change the Place of Payment where, or the coin or currency in which, any Note or any premium or interest thereon is payable, or impair the right of the Noteholders to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment, on or after the Early Tax Redemption Date, the Optional Redemption Date or the Payment Date, as the case may be), or (ii) reduce the applicable percentages in principal amount of the Outstanding Notes, the consent of whose Noteholders is required for any such supplemental indenture, or the consent of whose Noteholders is required for any waiver (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided for in this Indenture, (iii) following the sending to a Noteholder of an Offer with respect to an Offer to Purchase and until the Expiration Date of such Offer to Purchase, modify the provisions of this Indenture with respect to such Offer to Purchase in a manner adverse to such Noteholder. (b) It shall not be necessary for any Act of Noteholders under this Section 10.01 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. Any amendments to the terms of the Notes and/or this Indenture pursuant to this Section 10.01 shall comply with Agreement No. 4-2003 of April 11, 2003 of the SMV. Section 10.02. Supplemental Indentures Without Consent of Noteholders. Without the consent of any Noteholders, the Company, when authorized by a Board Resolution, the Trustee and the Luxembourg Paying Agent, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, or amend, waive or supplement the Notes for any of the following purposes: (a) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company, as applicable, and in the Notes, as applicable; or (b) to add to the covenants of the Company for the benefit of the Noteholders, or to surrender any right or power herein conferred upon the Company; or (c) to secure the Notes pursuant to the requirements of Section 5.08 or otherwise; or (d) 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 which shall not be inconsistent with the provisions of this Indenture, provided that such action pursuant to
102 this clause (d) shall not adversely affect the interests of the Noteholders in any material respect; or (e) to provide for the issuance of Additional Notes in accordance with the limitations set forth in this Indenture as of the date hereof; or (f) to modify, eliminate or add to the provisions of this Indenture to permit or facilitate the issuance of Global Notes and matters related thereto, provided that such action pursuant to this clause (f) shall not adversely affect the interests of the Noteholders in any material respect. Any amendments to the terms of the Notes and/or this Indenture pursuant to this Section 10.02 shall comply with Agreement No. 4-2003 of April 11, 2003 of the SMV. Section 10.03. Execution of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article 10 or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon, in addition to the documents required by Section 13.01 Opinion of Counsel each stating that the execution of such supplemental indenture is authorized or permitted by this Indenture and all conditions precedent to the execution of such supplemental indenture have been met. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture duties or immunities under this Indenture, the Notes or otherwise. Section 10.04. Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article 10, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Notes theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. Section 10.05. Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article 10 may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Notes so modified as to conform, in the opinion of the Trustee and the Board of Directors, to any such supplemental indenture may be prepared and executed by the Company and upon receipt of a Company Order, authenticated and delivered by the Trustee in exchange for Outstanding Notes. ARTICLE 11 SATISFACTION AND DISCHARGE Section 11.01. Satisfaction and Discharge of Indenture. This Indenture will be discharged and will cease to be of further effect as to all Notes issued hereunder, when: (a) either
103 (i) all Notes that have been authenticated, except lost, stolen or destroyed Notes that have been replaced or paid and Notes for the payment of which money has been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee for cancellation; or (ii) all Notes that have not been delivered to the Trustee for cancellation have become due and payable by reason of the sending of a notice of redemption or otherwise or will become due and payable within one year and the Company has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non- callable Government Securities, or a combination of cash in U.S. dollars and non- callable Government Securities, in each case, in amounts as will be sufficient, without consideration of any reinvestment of interest, to pay and discharge the entire Debt on the Notes not delivered to the Trustee for cancellation for principal, premium and Additional Amounts, if any, and accrued interest to the date of maturity or redemption; (b) the Company has paid or caused to be paid all sums payable by it under this Indenture; and (c) the Company has delivered irrevocable instructions to the Trustee under this Indenture to apply the deposited money toward the payment of the Notes at maturity or on the redemption date, as the case may be. In addition, the Company to the Trustee stating that all conditions precedent to satisfaction and discharge have been satisfied; provided matters of fact (including as to compliance with the foregoing clauses (a), (b) and (c) of this Section 11.01. (d) Notwithstanding the satisfaction and discharge of this Indenture, if money has been deposited with the Trustee pursuant to Section 11.01(a)(ii), the provisions of Section 11.02 and Section 7.04(c) hereof will survive. In addition, nothing in this Section 11.01 will be deemed to discharge those provisions of Section 7.05 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture. Section 11.02. Application of Trust Money. All money deposited with the Trustee pursuant to Section 11.01 shall be held in trust and applied by it 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 Noteholders for whose payment or redemption such money has been deposited with the Trustee, of all sums due and to become due thereon for principal (and premium, if any) and interest; but such money need not be segregated from other funds except to the extent required by law.
104 ARTICLE 12 DEFEASANCE Section 12.01. . The Company may at its option by a Board Resolution, at any time, elect to have either Section 12.02 or Section 12.03 applied to the Outstanding Notes upon compliance with the conditions set forth below in this Article 12. Section 12.02. Defeasance and Discharge option provided in Section 12.01 to have this Section 12.02 applied to the Outstanding Notes, the Company may be deemed to have been discharged from its obligations with respect to the Outstanding Notes on the date the conditions in Section 12.04 are satisfied Defeasance deemed to have paid and discharged the entire Indebtedness represented by the Outstanding Notes and to have satisfied all its other obligations under the Notes and this Indenture (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 such Noteholders to receive, solely from the trust fund described in Section 12.04 and as more fully set forth in such Section 12.04, payments in respect of the principal of (and premium, if any) and interest (including any Additional Amounts) on the Notes when such payments are due, (b) gations, as applicable, with respect to such Notes under Sections 2.12, 2.13, 5.01, and 7.05, (c) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (d) this Article 12 under Section 7.05. Subject to compliance with this Article 12, the Company may exercise its option under this Section 12.02 notwithstanding the prior exercise of its option under Section 12.03. Section 12.03. Covenant Defeasance ercise of the option provided in Section 12.01 to have this Section 12.03 applied to the Notes, (i) the Company may be released from its obligations, if any, under Article 5 with respect to the Notes and (ii) the occurrence of a breach or violation of any such covenant (except with respect to Section 6.01(a) and (b)) shall not be deemed to be an Event of Default (a Covenant Defeasance Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or clause, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or clause or by reason of any reference in any such Section or clause to any other provision herein or in any other document, but the remainder of this Indenture and such Notes shall be unaffected thereby. Section 12.04. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of either Section 12.02 or Section 12.03 to the then Outstanding Notes: (a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee (or another trustee satisfying the requirements of Section 7.07 who shall
105 agree to comply with the provisions of this Article 12 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 Noteholders, (i) U.S. dollars, or (ii) Government Securities or (iii) a combination thereof, which through the scheduled payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one Business Day before the due date of any payment, money in an amount, sufficient, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the principal of (and premium, if any) and each installment of interest on the Notes on the Stated Maturity of such principal of or installment of interest in accordance with the terms of this Indenture and such Notes. (b) In the case of an election under Section 12.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (i) the Company has received from, or there has been published by, the U.S. Internal Revenue Service a ruling, or (ii) since the date of this Indenture there has been a change in the applicable United States federal income tax law or the interpretation thereof, in either case to the effect that, and based thereon such opinion shall confirm that, the Noteholders will not recognize gain or loss for United States federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit, defeasance and discharge had not occurred. (c) In the case of an election under Section 12.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Noteholders will not recognize gain or loss for United States federal income tax purposes as a result of such deposit and Covenant Defeasance and will be subject to United States federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and Covenant Defeasance had not occurred. (d) No Default or Event of Default (other than an Event of Default resulting from the borrowing of funds to be applied to such deposit) shall have occurred and be continuing on the date of such deposit or, insofar as Sections 6.01(h) or (i) are concerned with respect to the Company, 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). (e) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company is a party or by which it is bound. (f) and an Opinion of Counsel each stating that all conditions precedent provided for relating to either the Defeasance under Section 12.02 or the Covenant Defeasance under Section 12.03, as the case may be, have been complied with.
106 Section 12.05. Deposited Money and Government Securities to Be Held in Trust; Other Miscellaneous Provisions. (a) Subject to the provisions of Section 7.04, all money and Government Securities (including the proceeds thereof) deposited with the Trustee pursuant to Section 12.04 in respect of such Notes shall be held in trust and applied by the Trustee, in accordance with the provisions of the Notes and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Noteholders, of all sums due and to become due thereon in respect of principal (and premium, if any) and interest, but such money need not be segregated from other funds except to the extent required by law. Money so held in trust shall not be subject to the provisions of this Article 12. (b) The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Securities deposited pursuant to Section 12.04 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 Noteholders. (c) Anything in this Article 12 to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon request of the Company any money or Government Securities held by it as provided in Section 12.04 which, in the opinion of an internationally recognized firm of independent public accountants expressed in a written certification thereof delive expense), are in excess of the amount thereof which would then be required to be deposited to effect an equivalent defeasance or covenant defeasance. Section 12.06. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 12.02 or 12.03 by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations of the Company under this Indenture and the Notes shall be revived and reinstated as though no deposit had occurred pursuant to this Article 12 until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 12.02 or 12.03; provided, however, that if the Company makes any payment of principal of (and premium, if any) or interest on or Additional Amounts in respect of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Noteholders to receive such payment from the money held by the Trustee or the Paying Agent. ARTICLE 13 MISCELLANEOUS Section 13.01. Compliance Certificates and Opinions. (a) Upon any written application or request by the Company to the Trustee that the Trustee take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Indenture relating to the proposed action have been complied with and, if so requested by the Trustee, 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 particular application or request as to which the furnishing of documents is specifically
107 required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished. (b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include: (i) a statement substantially to the effect that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto; (ii) 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; (iii) a statement substantially to the effect that, in the opinion of each such individual, such examination or investigation has been made as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and (iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with. (c) On the Issue Date, the Company shall furnish to the Trustee, and from time the incumbency and specimen signatures of the Authorized Representatives. Until the of determining the Authorized Representatives of the Company. Section 13.02. Form of Documents Delivered to Trustee. (a) 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 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. (b) 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 has reason to believe that the certificate or opinion opinion is based are erroneous or otherwise inaccurate. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate of, or representations by, an Authorized Representative of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or representations with respect to such matters are erroneous.
108 (c) Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion. (d) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument. Section 13.03. Notices, etc. to Trustee. Any Act of Noteholders or other document required or permitted by this Indenture to be made upon, given or furnished to, or filed with, the Trustee, the Company shall be deemed to have been made or given, as applicable, only if such notice is in writing and delivered personally, or by registered or certified first-class United States mail with postage prepaid and return receipt requested, or made, given or furnished in writing by confirmed telecopy or facsimile transmission or email, or by prepaid courier service to the appropriate party as set forth below: Trustee: Citibank, N.A. 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 Company: Cable Onda, S.A. Urb. Costa del Este, Ave. de la Rotonda MGT Building, 4th Floor Panama City, Panama Attention: David Garcia Telephone No.: +507-390-7646 Email: [email protected] Any party may change its address by giving notice of such change in the manner set forth herein. Any notice given to a party by mail or by courier or by facsimile or other electronic transmission shall be deemed delivered upon receipt thereof (unless the party refuses to accept delivery, in which case the party shall be deemed to have accepted delivery upon presentation). In respect of this Indenture, the Trustee shall not have any duty or obligations to verify or confirm that the Person sending instructions, directions, reports, notices or other communications or information by electronic transmission is, in fact, a Person authorized to give such instructions, directions, reports, notices or other communications or information on behalf of the party purporting to send such electronic transmission; and the Trustee shall not have any liability for any losses, liabilities, costs or expenses incurred or sustained by any party as a result of such reliance upon or compliance with such instructions, directions, reports, notices or other communications or information. Each other party agrees to assume all risks arising out of the use of electronic methods to submit instructions, directions, reports, notices or other communications or information to the Trustee, including without limitation the risk of the Trustee acting on authorized
109 instructions, notices, reports or other communications or information, and the risk of interception and misuse by third parties. Section 13.04. Notices to Noteholders; Waiver. (a) If and for so long as the Notes are represented by one or more Global Notes and interests therein are shown on the records of the Registered Depositary or other clearing agency appointed by the Company, all notices to Noteholders will be delivered to the Registered Depositary for communication to each member of, or participant in, the Registered Depositary. (b) Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Noteholder affected by such event, at its address as it appears in the Note Register, not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given. (c) Notices of redemption pursuant to Section 4.01, 4.02, 4.03 or Section 4.10 or an Offer to Purchase the Notes will be sufficiently given if (i) Global Notes are Outstanding, provided to the depositary for such Global Notes as the registered owner thereof and (ii) in the case of definitive Notes, made by first-class mail, postage prepaid, mailed not less than 30 nor more than 60 days prior to the redemption date or the Expiration Date, as the case may be, to each Noteholder to be notified, at his address appearing in the Note Register. Notices given by publication will be deemed given on the first date on which publication is made, notices given by email will be deemed given at the time of sending, subject to no delivery failure notification being received by the sender within 24 hours of the time of sending and notices by first-class mail, postage prepaid, will be deemed given five calendar days after mailing. (d) If the Company gives a notice or communication to Noteholders, it shall give a copy at the same time to the Trustee and, for so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such exchange so require, the Luxembourg Stock Exchange. For so long as the Notes are listed on the Luxembourg Stock Exchange and the rules of such exchange so require, the Company shall also cause a copy of such notice to be published in a daily newspaper with general circulation in Luxembourg (which is expected to be the Luxemburger Wort) or on the website of the Luxembourg Stock Exchange. If and so long as the Notes are listed on any other Notes exchange, notices will also be given in accordance with any applicable requirements of such Notes exchanges. Section 13.05. 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.
110 Section 13.06. Successors and Assigns. All covenants, agreements, representations and warranties in this Indenture by the Trustee and the Company shall bind and, to the extent permitted hereby, shall inure to the benefit of and be enforceable by their respective successors and assigns, whether so expressed or not. Section 13.07. Severability Clause. In case any provision in this Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Section 13.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture. Section 13.09. Legal Holidays. In any case where the Optional Redemption Date, the Early Tax Redemption Date or any Interest Payment Date with respect to any Note or of any installment of principal thereof or payment of interest thereon, or any date on which any defaulted interest is proposed to be paid, shall not be a Business Day, then (notwithstanding any other provision of this Indenture or such Note) payment of interest and/or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Optional Redemption Date, the Early Tax Redemption Date or on the Interest Payment Date, or on the date on which the defaulted interest is proposed to be paid, and, except as provided in any Supplemental Indenture setting forth the terms of such Note, if such payment is timely made, no interest shall accrue on account of such delay for the period from and after such Optional Redemption Date, Early Tax Redemption Date or Interest Payment Date, or date for the payment of defaulted interest, as the case may be, to the date of such payment. Section 13.10. Communication by Noteholders with other Noteholders. (a) The Company shall furnish or cause to be furnished to the Trustee at stated intervals of not more than six months, and at such other times as the Trustee may request in writing, all information in the possession or control of the Company, as to the names and addresses of the Noteholders, and the Trustee hereby agrees to preserve, in as current a form as is reasonably practicable, all such information so furnished to it or received by it in the capacity of Principal Paying Agent. (b) Within five Business Days after the receipt by the Trustee of a written application by any three or more Noteholders stating that the applicants desire to communicate with other Noteholders with respect to their rights under this Indenture or under the Notes, and accompanied by a copy of the form of proxy or other communication which such Noteholders propose to transmit, and by reasonable proof that each such Noteholder has owned a Note for a period of at least six months preceding the date of such application, the Trustee shall, at its election, either: (i) Afford to such Noteholders access to all information so furnished to or received by the Trustee; or
111 (ii) Inform such Noteholders as to the approximate number of Noteholders according to the most recent information so furnished to or received by the Trustee, and as to the approximate cost of mailing to such Noteholders the form of proxy or other communication, if any, specified in such application. If the Trustee shall elect not to afford to such applicants access to such information, the Trustee shall, upon the written request of such applicants, mail to all such Noteholders copies of the form of proxy or other communication which is specified in such request, with reasonable promptness after a tender to the Trustee of the material to be mailed and of payment, or provision for the payment, of the reasonable expenses of such mailing, unless within five days after such tender, the Trustee shall mail to such applicants, together with a copy of the material to be mailed, a written statement to the effect that, in the opinion of the Trustee, such mailing would be contrary to the best interests of the Noteholders or would be in violation of applicable law. Such written statement shall specify the basis of such opinion. (c) The disclosure of any such information as to the names and addresses of the Noteholders in accordance with the provisions of this Section 13.10, regardless of the source from which such information was derived, shall not be deemed to be a violation of any existing law, or of any law hereafter enacted which does not specifically refer to this section, nor shall the Trustee be held accountable by reason of mailing any material pursuant to a request made under subsection (b) of this section. Section 13.11. Governing Law. This Indenture shall be governed by, and construed in accordance with, the laws of the State of New York without regard to its conflicts of laws principles. Section 13.12. No Liability of Directors, Officers, Employees, Incorporators, Members and Stockholders. No director, officer, employee, incorporator, member or stockholder of the Company, as such, will have any liability for any obligations of the Company under the Notes or this Indenture, or for any claim based on, in respect of, or by reason of, such obligations of the Company. Each Noteholder by accepting a Note waives and releases all such liability. The waiver and release are an integral part of the consideration for issuance of the Notes. Section 13.13. Waiver of Jury Trial. THE COMPANY, THE TRUSTEE, THE PRINCIPAL PAYING AGENT AND THE LUXEMBOURG PAYING AGENT HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, LEGAL PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE TRUSTEE IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
112 Section 13.14. Waiver of Immunity. This Indenture and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Company, the Trustee, the Principal Paying Agent, and the Luxembourg Paying Agent. Each of such Persons irrevocably and unconditionally and to the fullest extent permitted by law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself of any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture or any document delivered pursuant hereto, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdiction, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 13.14 shall have the fullest scope permitted under the United States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act. Section 13.15. Submission to Jurisdiction, Waivers. (a) The Company, the Trustee, the Principal Paying Agent and the Luxembourg Paying Agent each irrevocably and unconditionally (i) submits itself and its property to, and agrees that any legal suit, action or proceeding against the Company brought by any Noteholder or the Trustee arising out of or based upon this Indenture or the Notes may be instituted in any New York State court or United States federal court sitting in The City of New York, New York, United States and any appellate court from any thereof, and courts of its own corporate domicile, (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such proceeding and (iii) submits to the non-exclusive jurisdiction of such courts in any such suit, action or proceeding. (b) The Company has appointed CT Corporation System, 28 Liberty Street, New York, New York 10005 Process Agent process may be served in any such action arising out of or based on this Indenture or the Notes which may be instituted in any such court, expressly consents to the jurisdiction of any such court in respect of any such action, and waives any other requirements of or objections to personal jurisdiction with respect thereto. Such appointment shall be irrevocable. The Company represents and warrants that the Process Agent has agreed to act as such agent for service of process and agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Process Agent and written notice of such service to the Company shall be deemed, in every respect, effective and binding service of process upon the Company. (c) Each of the Principal Paying Agent and the Luxembourg Paying Agent hereby irrevocably appoints and empowers the Trustee as its authorized agent to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceeding in any New York State court or United States federal court sitting in The City of New York, New York, United States and any appellate court from any
113 thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts. The Principal Paying Agent and the Luxembourg Paying Agent will take any and all action necessary to continue such designation in full force and effect and to advise the Company of any change of address of the Trustee; should the Trustee become unavailable for this purpose for any reason, the Principal Paying Agent and the Luxembourg Paying Agent will promptly and irrevocably designate a new authorized agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (c). Each of the Principal Paying Agent and the Luxembourg Paying Agent irrevocably consents and agrees to the service and any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 13.03 or to any other address of which it shall have given notice pursuant to Section 13.03 or to its Process Agent. Service upon the Principal Paying Agent and the Luxembourg Paying Agent or the Trustee as provided for herein will, to the fullest extent permitted by law, constitute valid and effective personal service upon it and the failure of the Trustee to give any notice of such service to the Principal Paying Agent and the Luxembourg Paying Agent shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon. Section 13.16. Execution in Counterparts. This Indenture and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and by different parties thereto in separate counterparts, each of which when so executed shall be deemed to be an original, and all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Indenture by telecopier or electronic transmission shall be effective as delivery of an original executed counterpart of this Indenture. Section 13.17. Entire Agreement. This Indenture, together with the Notes, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof. [Signature pages follow]
A-1-1 EXHIBIT A-1 FORM OF RULE 144A GLOBAL NOTE RULE 144A GLOBAL NOTE THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES SECURITIES ACT SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, COMPANY THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE RULE 144A IFIED WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT SHALL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ONLY AT THE OPTION OF THE COMPANY. [Include the following legend for Global Notes: THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1-2 TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-1-3 CABLE ONDA, S.A. 4.500% SENIOR NOTES DUE 2030 RULE 144A GLOBAL NOTE No. R-[ ] CUSIP No.: 12686LAA7 ISIN No.: US12686LAA70 Principal Amount: $[ ] [If the Note is a Global Note include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] Initial Issuance Date: November 1, 2019 This Note is one of a duly authorized issue of Notes of Cable Onda, S.A., a corporation (sociedad anónima) incorporated and existing under the laws of Panama (the Company , designated as its 4.500% Senior Notes due 2030 Notes an initial aggregate principal amount of $600,000,000, under an indenture (the Indenture October 28, 2019, among the Company, Citibank, N.A., as Trustee transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg Paying Agent made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Noteholders, and of the terms upon which the Notes are authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The Company shall have no obligations under or in respect of this Note prior to the Initial Issuance Date. The Company, for value received, hereby promises to pay to Cede & Co. or registered assigns, as nominee of The Depository Trust Company DTC Holder Noteholder specified above [If the Note is a Global Note, add the following: , as revised by the Schedule of Increases and Decreases in Global Note attached hereto,] in U.S. dollars on January 30, 2030 (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below. The Company promises to pay interest on the outstanding principal amount hereof from the Initial Issuance Date, or from the most recent payment date to which interest has been paid or duly provided for, semiannually on January 30 and July 30 of each year Interest Payment Date te is not a Business Day, the next succeeding Business Day following such day), commencing January 30, 2020, at a rate
A-1-4 equal to 4.500% per annum. Principal, interest and other amounts due on this Note on any Interest Payment Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the January 15 or July 15, as applicable, preceding the Interest Payment Date. Payment of the principal of and interest and other amounts on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Note Register. In the event the date for any payment of the principal of or interest and other amounts on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months. This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The Notes are subject to redemption by the Company on the terms and conditions specified in the Indenture. If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes shall become or may be declared due and payable in the manner and with the effect provided in the Indenture. Modifications of the Indenture may be made by the Company and the Trustee only to the extent and in the circumstances permitted by the Indenture. The Notes shall be issued only in fully registered form, without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee, the Note Registrar and any agent of the Company, as the case may be, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Note Registrar nor any agent thereof shall be affected by notice to the contrary. Unless the certificate of authentication hereon has been duly executed by the Trustee or its Authenticating Agent by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
A-1-5 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. Dated: CABLE ONDA, S.A., as the Company By: Name: Title: By: Name: Title:
A-1-6 CERTIFICATE OF AUTHENTICATION This Note is one of the Notes referred to in the within-mentioned Indenture. Citibank, N.A., as Trustee By: Authorized Officer Date:
A-1-7 ASSIGNMENT FORM For value received hereby sells, assigns and transfers unto (Please insert social security or other identifying number of assignee) (Please print or type name and address, including zip code, of assignee:) the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises. Date: Your Signature: (Sign exactly as your name appears on the face of this Note)
A-1-8 [To be attached to Global Notes only] SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE The following increases or decreases in this Global Note have been made: Date of Increase or Decreases Amount of decrease in Principal Amount of this Global Note Amount of Increase in Principal Amount of this Global Note Principal Amount of this Global Note following such decrease or increase Signature of authorized signatory of Trustee or Custodian
A-2-1 EXHIBIT A-2 FORM OF REGULATION S GLOBAL NOTE REGULATION S GLOBAL NOTE THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES SECURITIES ACT SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY OTHER APPLICABLE JURISDICTION. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE OF WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN DISTRIBUTORS (AS DEFINED IN REGULATIONS UNDER THE SECURITIES ACT) AND (B) THE ORIGINAL ISSUE DATE OF THE NOTES. [Include the following legend for Global Notes: THIS IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE REFERRED TO HEREINAFTER. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A OF PORTIONS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
A-2-2 CABLE ONDA, S.A. 4.500% SENIOR NOTES DUE 2030 REGULATION S GLOBAL NOTE No. S-[ ] CUSIP No.: P1926LAA3 ISIN No.: USP1926LAA37 Principal Amount: $ [ ] [If the Note is a Global Note include the following two lines: as revised by the Schedule of Increases and Decreases in Global Note attached hereto] Initial Issuance Date: November 1, 2019 This Note is one of a duly authorized issue of Notes of Cable Onda, S.A., a corporation (sociedad anónima) incorporated and existing under the laws of Panama (the Company , designated as its 4.500% Senior Notes due 2030 Notes an initial aggregate principal amount of $600,000,000, under an indenture (the Indenture October 28, 2019, among the Company, Citibank, N.A., as Trustee ing agent, note registrar and transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg Paying Agent made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Noteholders, and of the terms upon which the Notes are authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The Company shall have no obligations under or in respect of this Note prior to the Initial Issuance Date. The Company, for value received, hereby promises to pay to Cede & Co. or regis DTC Holder Noteholder specified above [If the Note is a Global Note, add the following: , as revised by the Schedule of Increases and Decreases in Global Note attached hereto,] in U.S. dollars on January 30, 2030 (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below. The Company promises to pay interest on the outstanding principal amount hereof from the Initial Issuance Date, or from the most recent payment date to which interest has been paid or duly provided for, semiannually on January 30 and July 30 of each year Interest Payment Date succeeding Business Day following such day), commencing January 30, 2020, at a rate
A-2-3 equal to 4.500% per annum. Principal, interest and other amounts due on this Note on any Interest Payment Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the January 15 or July 15, as applicable, preceding the Interest Payment Date. Payment of the principal of and interest and other amounts on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Note Register. In the event the date for any payment of the principal of or interest and other amounts on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months. This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The Notes are subject to redemption by the Company on the terms and conditions specified in the Indenture. If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes shall become or may be declared due and payable in the manner and with the effect provided in the Indenture. Modifications of the Indenture may be made by the Company and the Trustee only to the extent and in the circumstances permitted by the Indenture. The Notes shall be issued only in fully registered form, without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee, the Note Registrar and any agent of the Company, as the case may be, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Note Registrar nor any agent thereof shall be affected by notice to the contrary. Unless the certificate of authentication hereon has been duly executed by the Trustee or its Authenticating Agent by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
A-2-4 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. Dated: CABLE ONDA, S.A., as the Company By: Name: Title: By: Name: Title:
A-2-5 CERTIFICATE OF AUTHENTICATION This Note is one of the Notes referred to in the within-mentioned Indenture. Citibank, N.A., as Trustee By: Authorized Officer Date:
A-2-6 ASSIGNMENT FORM For value received hereby sells, assigns and transfers unto (Please insert social security or other identifying number of assignee) (Please print or type name and address, including zip code, of assignee:) the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises. Date: Your Signature: (Sign exactly as your name appears on the face of this Note)
A-2-7 [To be attached to Global Notes only] SCHEDULE OF INCREASES AND DECREASES IN GLOBAL NOTE The following increases or decreases in this Global Note have been made: Date of Increase or Decreases Amount of decrease in Principal Amount of this Global Note Amount of Increase in Principal Amount of this Global Note Principal Amount of this Global Note following such decrease or increase Signature of authorized signatory of Trustee or Custodian
B-1 EXHIBIT B FORM OF AUTHENTICATION AND DELIVERY ORDER [Date] Citibank, N.A., as Trustee 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 Ladies and Gentlemen: Pursuant to Section 2.02 [in the case of Panamanian Notes insert: and Section 2.20] of the Indenture dated as of October 28 Indenture Cable Onda, S.A., as Company, Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent, and Banque Internationale à Luxembourg SA, as Luxembourg paying agent, you are hereby ordered in your capacity as Trustee to authenticate $ 4.500% Senior Notes due 2030, in the manner provided in the Indenture in [global][certificated] form and in the amounts of $[ ] in respect of the Rule 144A [Global][temporary Panamanian] Note (CUSIP No. [ ], ISIN No. [ ]) and $[ ] in respect of the Regulation S [Global][temporary Panamanian] Note (CUSIP No. [ ], ISIN No. [ ]) heretofore duly executed by the proper Authorized Representative of the Company and delivered to you as provided in the Indenture [in the case of Panamanian Notes insert: , to register such Notes in the name of Central Latinoamericana de Va LatinClear][in case of Global Notes insert: and to hold the Notes in your capacity as custodian for The Depository Trust Company]. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture. In rendering this Authentication and Delivery Order, we have read Section 2.02 [in the case of Panamanian Notes insert: and Section 2.20] of the Indenture and such other provisions of the Indenture as we have deemed relevant, and have examined and investigated such other matters as we have deemed necessary, to enable us to express an informed opinion as to whether the conditions precedent set forth in the Indenture relating to the delivery and authentication of the Notes have been complied with. Based upon the foregoing, in our opinion all conditions precedent to the delivery and authentication of the Notes contained in the Indenture have been complied with. Very truly yours,
B-2 CABLE ONDA, S.A. By: Name: Title: Receipt is hereby acknowledged of the above mentioned Notes CITIBANK, N.A., as Trustee By: _________________________ Name: Title:
C-1 EXHIBIT C FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS OR EXCHANGES OF RULE 144A GLOBAL NOTE TO REGULATION S GLOBAL NOTE [Date] Citibank, N.A., as Trustee 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 Re: Cable Onda, S.A. 4.500% Senior Notes due 2030 Notes Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of October 28, 2019 (as Indenture Cable Onda, S.A. Company Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent and Banque Internationale à Luxembourg SA, as Luxembourg paying agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. In connection with our proposed sale of $ aggregate principal amount of the Notes [in the case of a transfer of an interest in a Rule 144A Global Note: which represent an interest in a Rule 144A Global Note beneficially owned by] [in the case of a transfer of a certificated Note: Transferor confirm that such sale has been effected pursuant to and in accordance with Regulation S Securities Act we represent that: (a) the offer of the Notes was not made to a Person in the United States; (b) either (i) at the time the buy order was originated, the transferee was outside the United States or we and any Person acting on our behalf reasonably believed that the transferee was outside the United States (within the meaning of Regulation S) or (ii) the transaction is being executed in, on or through the facilities of a designated off-shore securities market (within the meaning of Regulation S) and neither we nor any
C-2 Person acting on our behalf knows that the transaction has been pre- arranged with a buyer in the United States; (c) no directed selling efforts have been made in the United States in contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S, as applicable; (d) if the transfer is being effected in accordance with Rule 903 under the Securities Act, the requirements of Rule 903(b)(2) have been satisfied; (e) if the transfer is being effected in accordance with Rule 904 under the Securities Act, we are not a distributor of the Notes, an affiliate of the Company, an affiliate of any distributor of the Notes or a Person acting on behalf of any of the foregoing; (f) if the transfer is being effected in accordance with Rule 904 under the Securities Act and we are a dealer in Notes or have received a selling concession, fee or other remuneration in respect of the Notes transferred distribution compliance period ents of Rule 904(b)(1) have been satisfied; (g) if the transfer is being effected in accordance with Rule 904 under the Securities Act and we are an affiliate of the Company or of a distributor solely by virtue of holding a position as an officer or director of such Person, then requirements of Rule 904(b)(2) have been satisfied; (h) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and (i) we are the beneficial owner of the principal amount of Notes being transferred. In addition, if the sale is made during the period ending forty (40) days after the original issuance of the Notes and the transferee will take delivery in the form of a beneficial interest in the Regulation S Global Note, such beneficial interest will be held immediately after such transfer only in or through accounts maintained at the Registered Depositary by Euroclear or Clearstream (or by agent members acting for the account thereof). You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any
C-3 administrative or legal proceedings or official inquiry with respect to the matters covered hereby. Very truly yours, [Name of Transferor] By: Name: Title: [Authorized Signature]
D-1 EXHIBIT D FORM OF CERTIFICATE FOR TRANSFER OR EXCHANGE OF REGULATION S GLOBAL NOTE TO RULE 144A GLOBAL NOTE [Date] Citibank, N.A., as Trustee 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 Re: Cable Onda, S.A. 4.500% Senior Notes due 2030 Notes Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of October 28, 2019 (as amended Indenture Cable Onda, S.A. (the Company Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent and Banque Internationale à Luxembourg SA, as Luxembourg paying agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. This letter relates to $ aggregate principal amount of Notes that are held in the form of a beneficial interest in a Regulation S Global Note in the name of Holder Holder has requested a transfer of such beneficial interest in a Regulation S Global Note for a beneficial interest in a Rule 144A Global Note to be held in the name of (the Transferee of such beneficial interest in a Regulation S Global Note for a beneficial interest in a Rule 144A Global Note to be held in the name of the Holder through the Registered Depositary.] In connection with such request, the Holder does hereby certify that the [Transferee is a Qualified Institutional Buyer] [Holder reasonably believes that the Transferee is a Qualified Institutional Buyer, is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction]. This certificate and the statements contained herein are made for your benefit. [INSERT NAME OF HOLDER] By:
D-2 Name: Title:
E-1 EXHIBIT E FORM OF QUALIFIED INSTITUTIONAL BUYER CERTIFICATION [Letterhead of Prospective Note Purchaser/Exchanger] [Date] Citibank, N.A., as Trustee 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 Re: Cable Onda, S.A. 4.500% Senior Notes due 2030 Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of October 28, 2019 (as amended and Indenture Cable Onda, S.A. Company Citibank, N.A., as Trustee, principal paying agent, note registrar and transfer agent, and Banque Internationale à Luxembourg SA, as Luxembourg paying agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. the undersigned hereby represents, acknowledges and agrees as follows: It Act of 1933, as amended, and is acquiring the Notes in reliance on the exemption from Securities Act registration provided by Rule 144A thereunder. Name of Purchaser: By: Name: Title:
F-1 EXHIBIT F FORM OF PANAMANIAN NOTE [Include the following legend for Notes issued pursuant to Rule 144A under the Securities Act of 1933: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, THIS NOTE OR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PERSON WHO THE SELLER REASONABLY WITH RULE 144A, (3) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF SUCH CASES IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR OTHER APPLICABLE JURISDICTION. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, REPRESENTS AND AGREES THAT IT SHALL NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS REFERRED TO ABOVE. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ONLY AT THE OPTION OF THE COMPANY.] [Include the following legend for Notes issued pursuant to Regulation S under the Securities Act of 1933: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES SECURITIES ACT SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES THAT NEITHER THIS NOTE NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY OTHER APPLICABLE JURISDICTION. THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE AFTER 40 DAYS BEGINNING ON AND INCLUDING THE LATER OF (A) THE DATE OF WHICH THE NOTES ARE OFFERED TO PERSONS OTHER THAN
F-2 DISTRIBUTORS (AS DEFINED IN REGULATIONS UNDER THE SECURITIES ACT) AND (B) THE ORIGINAL ISSUE DATE OF THE NOTES.]
F-3 CABLE ONDA, S.A. 4.500% SENIOR NOTES DUE 2030 PANAMANIAN NOTE No. P-[ ] CUSIP No.: [ ] ISIN No.: [ ] Principal Amount: $ [ ] as revised by the Schedule of Increases and Decreases in Panamanian Note attached hereto Initial Issuance Date: November 1, 2019 This Note is one of a duly authorized issue of Notes of Cable Onda, S.A., a corporation (sociedad anónima) incorporated and existing under the laws of Panama (the Company , designated as its 4.500% Senior Notes due 2030 Notes an initial aggregate principal amount of $600,000,000, under an indenture (the Indenture October 28, 2019, among the Company, Citibank, N.A., as Trustee transfer agent; and Banque Internationale à Luxembourg SA, as paying agent in Luxembourg Paying Agent made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the Noteholders, and of the terms upon which the Notes are authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture. The Company, for value received, hereby promises to pay to Central Latinoamericana de Valores. S.A., or registered assigns, as the holder of record of this Holder Noteholder , as revised by the Schedule of Increases and Decreases in Panamanian Note attached hereto, in U.S. dollars on January 30, 2030 (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Trustee referred to below. This Note is a valid and binding obligation of the Company. The Company shall have no obligations under or in respect of this Note prior to the Initial Issuance Date. This Note shall be null and void and of no further effect (i) if cancelled pursuant to Section 2.02(d) of the Indenture or (ii) upon the issuance of the Rule 144A Global Note and the Regulation S Global Note and representing an aggregate principal amount equal to the aggregate principal amount of this Panamanian Note as replacement thereof.
F-4 The Company promises to pay interest on the outstanding principal amount hereof from the Initial Issuance Date, or from the most recent payment date to which interest has been paid or duly provided for, semiannually on January 30 and July 30 of each year Interest Payment Date succeeding Business Day following such day), commencing January 30, 2020, at a rate equal to 4.500% per annum. Principal, interest and other amounts due on this Note on any Interest Payment Date or otherwise will, as provided in the Indenture, be paid in U.S. dollars to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on the January 15 or July 15, as applicable, preceding the Interest Payment Date. Payment of the principal of and interest and other amounts on this Note will be payable by wire transfer to a U.S. dollar account maintained by the Holder of this Note as reflected in the Note Register. In the event the date for any payment of the principal of or interest and other amounts on any Note is not a Business Day, then payment will be made on the next Business Day with the same force and effect as if made on the nominal date of any such date for such payment and no additional interest will accrue on such payment as a result of such payment being made on the next succeeding Business Day. Interest accrued with respect to this Note shall be calculated based on a 360-day year of twelve 30-day months. This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The Notes are subject to redemption by the Company on the terms and conditions specified in the Indenture. If, at any time on or after the date hereof up to and including the Issue Date, the Initial Purchasers shall, in accordance with the terms of the Purchase Agreement, deliver a Repurchase Notice (as defined in the Purchase Agreement) to the Company, such Repurchase Event Event, (i) the Company will become obligated to (x) repurchase on the Issue Date all of the Notes purchased under the PSE Auction through the LatinClear system, and the Company shall repurchase (or, at its sole option, redeem) all of the Notes purchased under the PSE Auction through the LatinClear system on the Issue Date, whether purchased in the PSE Auction by the Initial Purchasers or any other Auction Purchaser, or (y) repurchase a portion of the Notes (as designated by the Initial Purchasers in the Repurchase Notice) purchased by the Initial Purchasers under the PSE Auction through the LatinClear system on the Issue Date, in each case at a price equal to the price payable Repurchase Price instruct the Indenture Trustee to cancel this Note (in accordance with the procedures set forth in Section 2.20 of the Indenture). The Repurchase Price (and, if redemption of any Notes is elected, the redemption price) shall be equal to the price payable to the Company for the Notes (including any premium, discount and/or prepaid interest) and no make- whole premium or any other amounts shall be payable in connection therewith. In the event the Notes are required to be so repurchased or redeemed, the obligations of the
F-5 Initial Purchasers (and any other applicable Auction Purchasers who undertook to purchase Notes pursuant to the Panama Stock Exchange bidding process) to pay for the Notes, on the one hand, and the obligation of the Company to pay the Repurchase Price for the Notes to be repurchased or redeemed, on the other hand, will be set off against each other (in the case of any redemption, to the greatest extent possible). If an Event of Default shall occur and be continuing, the outstanding principal amount of all the Notes shall become or may be declared due and payable in the manner and with the effect provided in the Indenture. Modifications of the Indenture may be made by the Company and the Trustee only to the extent and in the circumstances permitted by the Indenture. The Notes shall be issued only in fully registered form, without coupons in denominations of $200,000 and integral multiples of $1,000 in excess thereof. Prior to and at the time of due presentment of this Note for registration of transfer, the Company, the Trustee, the Note Registrar and any agent of the Company, as the case may be, may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note is overdue, and neither the Company, the Trustee, the Note Registrar nor any agent thereof shall be affected by notice to the contrary. Unless the certificate of authentication hereon has been duly executed by the Trustee or its Authenticating Agent by manual signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose. THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED BY, THE LAWS OF THE STATE OF NEW YORK.
F-6 IN WITNESS WHEREOF, the Company has caused this Note to be duly executed. Dated: CABLE ONDA, S.A. By: Name: Title: By: Name: Title:
F-7 CERTIFICATE OF AUTHENTICATION This Note is one of the Notes referred to in the within-mentioned Indenture. Citibank, N.A., as Trustee By: Authorized Officer Date:
F-8 ASSIGNMENT FORM For value received hereby sells, assigns and transfers unto (Please insert social security or other identifying number of assignee) (Please print or type name and address, including zip code, of assignee:) the within Note and does hereby irrevocably constitute and appoint Attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises. Date: Your Signature: (Sign exactly as your name appears on the face of this Note)
F-9 SCHEDULE OF INCREASES AND DECREASES IN PANAMANIAN NOTE The following increases or decreases in this Panamanian Note have been made: Date of Increase or Decreases Amount of decrease in Principal Amount of this Panamanian Note Amount of Increase in Principal Amount of this Panamanian Note Principal Amount of this Panamanian Note following such decrease or increase Signature of authorized signatory of Trustee or Custodian
G-1 EXHIBIT G FORM OF WRITTEN STATEMENT FOR CANCELLATION OF PANAMANIAN NOTE(S) Citibank, N.A. 388 Greenwich Street New York, New York 10013 Attention: Agency & Trust Cable Onda, S.A. Telephone No.: +1 (212) 816-4936 Facsimile No.: +1 (347) 632-8640 [Date] Re: 4.500% Senior Notes due 2030 Ladies and Gentlemen: Reference is hereby made to the Indenture, dated as of October 28, 2019 (the among , Citibank, N.A., as Trustee (the Note Registrar, Principal Paying Agent and Transfer Agent, and Banque Internationale à . Capitalized terms used but not defined herein shall have the meanings given them in the Indenture. This letter confirms that the Panamanian Note[s] issued pursuant to Section 2.20 of the Indenture and authenticated and delivered on [ ], th the Indenture (the Panamanian Note[s] ) [has/have] not been issued or sold by us to any third party. We therefore hereby instruct the Trustee in its capacity as trustee under the Indenture to cancel the Panamanian Note[s]. [Signature page follows]
G-2 Very truly yours, CABLE ONDA, S.A. By: _________________________ Name: Title:
INDENTURE
among
Walkers Fiduciary Limited
as trustee of the CT Trust established pursuant to
the Declaration of Trust, dated January 12, 2022
among
Walkers Fiduciary Limited
as trustee of the CT Trust established pursuant to
the Declaration of Trust, dated January 12, 2022
as Issuer
Comunicaciones Celulares, S.A.,
Cloud2Nube, S.A.,
Comunicaciones Corporativas, S.A.,
Distribuidora Central de Comunicaciones, S.A.,
Distribuidora de Comunicaciones de Occidente, S.A.,
Distribuidora de Comunicaciones de Oriente, S.A.,
Distribuidora Internacional de Comunicaciones, S.A.,
Navega.com, S.A.,
Servicios Especializados en Telecomunicaciones, S.A. and
Servicios Innovadores de Comunicación y Entretenimiento, S.A.
Cloud2Nube, S.A.,
Comunicaciones Corporativas, S.A.,
Distribuidora Central de Comunicaciones, S.A.,
Distribuidora de Comunicaciones de Occidente, S.A.,
Distribuidora de Comunicaciones de Oriente, S.A.,
Distribuidora Internacional de Comunicaciones, S.A.,
Navega.com, S.A.,
Servicios Especializados en Telecomunicaciones, S.A. and
Servicios Innovadores de Comunicación y Entretenimiento, S.A.
as Note Guarantors
and
The Bank of New York Mellon
as Indenture Trustee, Note Registrar, Paying Agent and Transfer Agent
5.125% Senior Notes due 2032
Dated as of February 3, 2022
#95429618v7
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION | |||||
SECTION 1.1 Definitions | 2 | ||||
SECTION 1.2 Construction | 40 | ||||
SECTION 1.3 Actions of the Cayman Trustee | 41 | ||||
| ARTICLE II THE NOTES | |||||
SECTION 2.1 Designation | 41 | ||||
SECTION 2.2 Authentication and Delivery of Notes | 41 | ||||
SECTION 2.3 Aggregate Amount; Additional Notes | 42 | ||||
SECTION 2.4 Form of Indenture Trustee’s Authentication | 43 | ||||
SECTION 2.5 Form of the Notes | 43 | ||||
SECTION 2.6 Limited Recourse; Payments from Trust Assets | 45 | ||||
SECTION 2.7 Maturity of the Notes | 46 | ||||
SECTION 2.8 Interest; Interest Periods | 46 | ||||
SECTION 2.9 Record Date | 46 | ||||
SECTION 2.10 Issuance | 46 | ||||
SECTION 2.11 Denominations, etc | 46 | ||||
SECTION 2.12 Execution of Notes | 47 | ||||
SECTION 2.13 Registration; Restrictions on Transfer and Exchange | 47 | ||||
SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes | 54 | ||||
SECTION 2.15 Payments | 55 | ||||
SECTION 2.16 Taxation | 56 | ||||
SECTION 2.17 Persons Deemed Owners; Etc | 57 | ||||
SECTION 2.18 Cancellation | 58 | ||||
SECTION 2.19 Allocation of Payments | 58 | ||||
SECTION 2.20 CUSIP and ISIN Numbers | 59 | ||||
SECTION 2.21 Noteholder Lists | 59 | ||||
ARTICLE III ESTABLISHMENT OF ACCOUNTS | |||||
SECTION 3.1 Establishment and Administration of Loan Collection Account | 59 | ||||
SECTION 3.2 Establishment and Administration of the Payment Account | 60 | ||||
SECTION 3.3 Applicable Taxes | 60 | ||||
| ARTICLE IV REDEMPTION; OFFER TO PURCHASE | |||||
SECTION 4.1 Redemption Events | 61 | ||||
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SECTION 4.2 Repurchase of Notes Tendered upon a Change of Control Event | 64 | ||||
SECTION 4.3 Repurchase of Notes Tendered upon an Asset Sale Offer | 66 | ||||
| ARTICLE V COLLATERAL | |||||
SECTION 5.1 Pledge of Interest in Trust Assets | 66 | ||||
| ARTICLE VI COVENANTS OF THE ISSUER | |||||
SECTION 6.1 Payment Obligations under the Notes and the Indenture | 69 | ||||
SECTION 6.2 Performance obligations under Transaction Documents | 69 | ||||
SECTION 6.3 Maintenance of Approvals | 69 | ||||
SECTION 6.4 Maintenance of Books and Records | 69 | ||||
SECTION 6.5 Maintenance of Office or Agency | 69 | ||||
SECTION 6.6 Maintenance of Existence | 69 | ||||
SECTION 6.7 Consolidations, Merger, Conveyance or Transfer | 70 | ||||
SECTION 6.8 Negative Pledge | 70 | ||||
SECTION 6.9 Compliance with Laws | 70 | ||||
SECTION 6.10 Limitation on Nature of Business | 70 | ||||
SECTION 6.11 Payment of Taxes and Other Claims | 70 | ||||
SECTION 6.12 Ranking | 70 | ||||
SECTION 6.13 Limitations on Sale and Lease-back Transactions | 71 | ||||
SECTION 6.14 Limitation on Indebtedness | 71 | ||||
SECTION 6.15 No Liquidation or Termination without Consent | 71 | ||||
SECTION 6.16 Appointment to Fill a Vacancy in Office of Indenture Trustee | 71 | ||||
SECTION 6.17 Provision of Financial Statements and Reports | 71 | ||||
| ARTICLE VII COVENANTS OF THE PARENT NOTE GUARANTORS | |||||
SECTION 7.1 Limitation on Debt | 72 | ||||
SECTION 7.2 Limitation on Restricted Payments | 76 | ||||
SECTION 7.3 Limitation on Dividend and Other Payment Restrictions Affecting the Parent Note Guarantors and Restricted Subsidiaries | 80 | ||||
SECTION 7.4 [Reserved] | 82 | ||||
SECTION 7.5 Limitation on Liens | 82 | ||||
SECTION 7.6 Limitation on Guarantees of the Note Guarantors’ Subordinated Debt. | 82 | ||||
SECTION 7.7 Limitation on Asset Dispositions | 82 | ||||
SECTION 7.8 Transactions with Affiliates | 85 | ||||
SECTION 7.9 Limited Condition Transaction. | 87 | ||||
SECTION 7.10 Payment of Taxes | 88 | ||||
SECTION 7.11 Provision of Financial Information | 88 | ||||
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SECTION 7.12 Limitation on Lines of Business | 89 | ||||
SECTION 7.13 Unrestricted Subsidiaries | 89 | ||||
SECTION 7.14 Release from Covenants | 90 | ||||
SECTION 7.15 Merger, Consolidations and Certain Sales of Assets of the Note Guarantors | 90 | ||||
| ARTICLE VIII EVENTS OF DEFAULT; REMEDIES | |||||
SECTION 8.1 Events of Default | 92 | ||||
SECTION 8.2 Acceleration | 92 | ||||
SECTION 8.3 Other Remedies | 93 | ||||
SECTION 8.4 Waiver of Past Default | 93 | ||||
SECTION 8.5 Control by Majority | 93 | ||||
SECTION 8.6 Limitation on Suits | 93 | ||||
SECTION 8.7 Rights of Noteholders to Receive Payment | 93 | ||||
SECTION 8.8 Priorities | 94 | ||||
SECTION 8.9 Undertaking for Costs | 94 | ||||
SECTION 8.10 Proof of Claim | 94 | ||||
| ARTICLE IX CONCERNING THE INDENTURE TRUSTEE | |||||
SECTION 9.1 Certain Rights and Duties of Indenture Trustee; Notices and Information Received from the Administrative Agent | 94 | ||||
SECTION 9.2 Indenture Trustee Not Responsible for Recitals; Etc | 98 | ||||
SECTION 9.3 Indenture Trustee and Others May Hold Notes | 99 | ||||
SECTION 9.4 Moneys Held by Indenture Trustee or Paying Agent | 99 | ||||
SECTION 9.5 Compensation of the Indenture Trustee and its Lien | 100 | ||||
SECTION 9.6 Right of Indenture Trustee to Rely on Officer’s Certificates and Opinions of Counsel | 101 | ||||
SECTION 9.7 Persons Eligible for Appointment as Indenture Trustee | 101 | ||||
SECTION 9.8 Resignation and Removal of Indenture Trustee; Appointment of Successor | 101 | ||||
SECTION 9.9 Acceptance of Appointment by Successor Indenture Trustee | 102 | ||||
SECTION 9.10 Merger, Conversion or Consolidation of Indenture Trustee | 103 | ||||
SECTION 9.11 Maintenance of Offices and Agencies | 104 | ||||
SECTION 9.12 Indenture Trustee Risk | 105 | ||||
SECTION 9.13 Appointment of Co-Indenture Trustee | 106 | ||||
SECTION 9.14 Knowledge of Default | 107 | ||||
SECTION 9.15 Securities Laws/Transfer Disclaimer | 107 | ||||
SECTION 9.16 Incumbency Certificate/Specimen Signatures | 107 | ||||
SECTION 9.17 Lien/Right of Set-Off | 107 | ||||
SECTION 9.18 Electronic Transmission Language | 107 | ||||
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SECTION 9.19 Force Majeure | 108 | ||||
SECTION 9.20 Waiver of Damages | 109 | ||||
SECTION 9.21 Rights Applicable to Agents | 109 | ||||
| ARTICLE X CONCERNING THE HOLDERS | |||||
SECTION 10.1 Acts of Noteholders | 109 | ||||
| ARTICLE XI PARTICIPATION AGREEMENT | |||||
SECTION 11.1 Certain Rights of the Noteholders with Respect to the Participation Agreement and the Guarantees; Remedies Available under the Participation Agreement and Guarantees | 110 | ||||
| ARTICLE XII AMENDMENTS | |||||
SECTION 12.1 With Consent of Noteholders | 112 | ||||
SECTION 12.2 Without Consent of Noteholders | 113 | ||||
SECTION 12.3 Execution of Supplemental Indentures | 114 | ||||
SECTION 12.4 Effect of Supplemental Indentures | 115 | ||||
SECTION 12.5 Reference in Notes to Supplemental Indentures | 115 | ||||
SECTION 12.6 Notification of Luxembourg Stock Exchange | 115 | ||||
| ARTICLE XIII DEFEASANCE AND DISCHARGE | |||||
SECTION 13.1 Satisfaction and Discharge of Indenture | 115 | ||||
SECTION 13.2 Legal Defeasance | 116 | ||||
SECTION 13.3 Covenant Defeasance | 117 | ||||
SECTION 13.4 Application of Trust Money | 118 | ||||
SECTION 13.5 Repayment to Issuer | 118 | ||||
SECTION 13.6 Reinstatement | 118 | ||||
| ARTICLE XIV NOTE GUARANTEES | |||||
SECTION 14.1 Guarantees | 118 | ||||
SECTION 14.2 Release of Note Guarantors | 120 | ||||
SECTION 14.3 Future Note Guarantors | 120 | ||||
SECTION 14.4 Guarantees Absolute | 122 | ||||
SECTION 14.5 Waivers and Acknowledgments | 123 | ||||
SECTION 14.6 Subrogation | 124 | ||||
SECTION 14.7 Payments Free and Clear of Taxes, Etc | 125 | ||||
SECTION 14.8 Representations and Warranties | 125 | ||||
SECTION 14.9 Covenants | 127 | ||||
SECTION 14.10 [Reserved] | 127 | ||||
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SECTION 14.11 No Waiver; Remedies | 127 | ||||
SECTION 14.12 Indemnification | 127 | ||||
SECTION 14.13 Subordination | 128 | ||||
SECTION 14.14 Continuing Guarantee; Assignments | 129 | ||||
| ARTICLE XV MISCELLANEOUS | |||||
SECTION 15.1 Compliance Certificates and Opinions | 129 | ||||
SECTION 15.2 Officer’s Certificate; Form of Documents Delivered to Indenture Trustee | 130 | ||||
SECTION 15.3 Notices, etc. | 130 | ||||
SECTION 15.4 Notices to Noteholders; Waiver | 132 | ||||
SECTION 15.5 Effect of Headings and Table of Contents | 133 | ||||
SECTION 15.6 Successors and Assigns | 133 | ||||
SECTION 15.7 Severability Clause | 133 | ||||
SECTION 15.8 Benefits of Indenture | 133 | ||||
SECTION 15.9 Legal Holidays | 133 | ||||
SECTION 15.10 Currency Rate Indemnity | 133 | ||||
SECTION 15.11 Communication by Noteholders with other Noteholders | 134 | ||||
SECTION 15.12 Governing Law | 134 | ||||
SECTION 15.13 Waiver of Jury Trial | 134 | ||||
SECTION 15.14 Waiver of Immunity | 134 | ||||
SECTION 15.15 Submission to Jurisdiction, etc | 135 | ||||
SECTION 15.16 Assignment | 136 | ||||
SECTION 15.17 Power to Employ Agents and Advisors | 136 | ||||
SECTION 15.18 Execution in Counterparts | 136 | ||||
SECTION 15.19 Entire Agreement | 136 | ||||
SECTION 15.20 Patriot Act | 136 | ||||
SECTION 15.21 Non-Petition Covenant | 137 | ||||
EXHIBIT A-1 Form of Rule 144A Restricted Global Note
EXHIBIT A-2 Form of Regulation S Unrestricted Global Note
EXHIBIT B Form of Authentication and Delivery Order
EXHIBIT C Form of Certificate to be Delivered in Connection with Transfers Pursuant to Regulation S
EXHIBIT D Form of Transfer Certificate for Transfer to Qualified Institutional Buyers (QIBs) who are also Qualified Purchasers
EXHIBIT E Form of Qualified Institutional Buyer/Qualified Purchaser Certification
EXHIBIT F Form of Section 3(c)(7) Reminder Notice
EXHIBIT G Form of Rule 144A Bloomberg Request Letter
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EXHIBIT H Request to the Depository Trust Company
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This INDENTURE (the “Indenture”), dated as of February 3, 2022, among Walkers Fiduciary Limited, an ordinary company incorporated with limited liability duly incorporated under the laws of the Cayman Islands, as trustee (the “Cayman Trustee”) of the CT Trust (the “Trust”) established under the Declaration of Trust, dated January 12, 2022 (the “Declaration of Trust”), as issuer hereunder (the Cayman Trustee acting hereunder in its capacity as trustee of the Trust pursuant to the Declaration of Trust and in relation to the assets forming part of the Trust, being the “Issuer”), Comunicaciones Celulares, S.A. (“Comcel”), Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as guarantors (the “Loan Guarantors” and together with Comcel the “Parent Note Guarantors,” and together with the Subsidiary Guarantors, as defined below, the “Note Guarantors”), The Bank of New York Mellon, a New York banking corporation, as indenture trustee (the “Indenture Trustee”), note registrar, paying agent and transfer agent.
W I T N E S S E T H:
WHEREAS, Comunicaciones Celulares, S.A., a stock corporation (sociedad anónima) organized under the laws of Guatemala, as borrower (in such capacity, the “Borrower”), the Loan Guarantors, JPMorgan Chase Bank, N.A., as lender (the “Lender”), and The Bank of New York Mellon, as administrative agent (in such capacity, the “Administrative Agent”) entered into a credit and guaranty agreement dated as of the date hereof (the “Credit and Guaranty Agreement”) pursuant to which the Lender agreed to extend on the date hereof a senior unsecured loan (the “Loan”) to the Borrower guaranteed by the Loan Guarantors in an amount equal to U.S.$900,000,000 in the aggregate, the net proceeds of which to be used to repay the existing debt of the Borrower and the Note Guarantors and to lend the balance of the proceeds of the Loan to the shareholders of the Borrower and the remainder for general corporate purposes;
WHEREAS, the syndication of the Loan has been arranged pursuant to (a) the establishment of the Trust, (b) the sale of a 100% participation interest in the Loan and certain rights relating thereto pursuant to that certain participation agreement dated the date hereof by and among the Lender, the Administrative Agent and the Cayman Trustee, acting as trustee of the Trust (the “Participation Agreement”), (c) the issuance by the Issuer of the Notes (as defined below) pursuant to this Indenture, and (d) the listing of the Notes on the Luxembourg Stock Exchange;
WHEREAS, the Issuer has duly authorized the issue of its 5.125% Senior Notes due 2032, substantially in the form hereinafter set forth in such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture (the “Notes”) and is on the date hereof issuing U.S.$900,000,000 of its Notes (the “Initial Notes”);
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to provide for the authentication and delivery of the Notes by the Indenture Trustee;
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WHEREAS, the Issuer, in connection with the issuance of the Notes, will grant a security interest in all of the Trust Assets (as defined below) to the Indenture Trustee on behalf of the Noteholders (as defined below); and
WHEREAS, all things necessary to make the Notes, when executed by the Issuer and authenticated and delivered by the Indenture Trustee as provided in this Indenture, the valid, binding and legal obligations of the Issuer, and to constitute these presents a valid indenture and agreement according to its terms, have been done;
NOW, THEREFORE, for and in consideration of the premises and of the covenants herein contained and of the purchase of the Notes by the Noteholders, it is mutually covenanted and agreed, for the benefit of the parties hereto and the equal and proportionate benefit of all Noteholders, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions. The following capitalized terms shall have the meanings set forth below:
“Acceleration Redemption Event” has the meaning set forth in Section 4.1(a)(vii).
“Acquired Debt” means Debt of the Parent Note Guarantors or their respective Subsidiaries:
(i) Incurred and outstanding on the date on which a Subsidiary (a) was acquired by any Parent Note Guarantor or any of the Restricted Subsidiaries or (b) is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) any Parent Note Guarantors or the Restricted Subsidiary; or
(ii) Incurred to provide all or part of the funds utilized to consummate the transaction or series of related transactions pursuant to which such Person became a Subsidiary of any Parent Note Guarantor or was otherwise acquired by a Parent Note Guarantor or its Subsidiary;
provided that, after giving pro forma effect to the transactions by which such Person became a Subsidiary of any Parent Note Guarantor or is merged, consolidated, amalgamated or otherwise combined with any Parent Note Guarantor or its Subsidiary, (a) the Parent Note Guarantors would have been able to Incur $1.00 of additional Debt pursuant to Section 7.1; or (b) the Leverage Ratio would not be greater than such ratio before giving effect to such transactions.
Acquired Debt shall be deemed to have been Incurred, with respect to clause (i) on the date such Person becomes a Subsidiary and, with respect to clause (ii) on the date of consummation of such acquisition of assets.
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“Act” when used with respect to any Noteholder, has the meaning set forth in Section 10.1.
“Additional Amounts” has the meaning set forth in the Credit and Guaranty Agreement.
“Additional Notes” has the meaning set forth in Section 2.3.
“Administrative Agent” has the meaning set forth in the recitals hereto.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control,” when used with respect to any specified Person means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Procedures” has the meaning set forth in Section 2.13.
“Asset Disposition” means any transfer, conveyance, sale, lease or other disposition by any Parent Note Guarantor or any Restricted Subsidiary (including a consolidation or merger or other sale of any such Restricted Subsidiary with, into or to another Person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary, but excluding a disposition by a Restricted Subsidiary to a Parent Note Guarantor or Restricted Subsidiary which is an 80% or more owned Subsidiary of one or more Note Guarantors or by any Parent Note Guarantor to a Restricted Subsidiary which is an 80% or more owned Subsidiary of any Parent Note Guarantor or by any Parent Note Guarantor to another Parent Note Guarantor) of
(i) shares of Capital Stock (other than directors’ qualifying shares and shares to be held by third parties to satisfy applicable legal requirements) or other ownership interests of a Restricted Subsidiary,
(ii) substantially all of the assets of any Parent Note Guarantor or any Restricted Subsidiary representing a division or line of business, or
(iii) other assets or rights of the Parent Note Guarantors or any Restricted Subsidiary outside of the ordinary course of business;
provided that the term “Asset Disposition” shall not include
(1) any disposition of Tower Equipment, including any Sale/Leaseback Transaction;
(2) a transfer of assets between or among the Parent Note Guarantors and any Restricted Subsidiaries;
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(3) the issuance of Capital Stock by a Subsidiary to the Parent Note Guarantors or to another Subsidiary of the Parent Note Guarantors;
(4) dispositions of assets of any Parent Note Guarantor or any Restricted Subsidiary, or the issuance or sale of Capital Stock of any Restricted Subsidiary in a single transaction or series of related transactions with an aggregate fair market value in any calendar year of less than the greater of $50,000,000 and 3.0% of Combined Total Assets (with unused amounts in any calendar year being carried over to the next succeeding year);
(5) any disposition of Capital Stock of a Subsidiary pursuant to an agreement or other obligation with or to a Person (other than a Parent Note Guarantor or its Subsidiary) from whom such Subsidiary was acquired or from whom such Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(6) the sale, lease or other transfer of products, services, accounts receivable, inventory or other assets in the ordinary course of business and any sale or other disposition of damaged, surplus, worn-out or obsolete assets;
(7) dispositions in connection with Permitted Liens;
(8) disposals of assets, rights or revenue not constituting part of the Related Business and other disposals of non-core assets acquired in connection with any acquisition permitted hereunder;
(9) licenses and sublicenses of the Parent Note Guarantors or any of their Subsidiaries in the ordinary course of business;
(10) any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;
(11) the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(12) the granting of Liens not prohibited by the covenant described under Section 7.5;
(13) a transfer or disposition of assets described in Section 7.15;
(14) a transfer or disposition of assets described in Section 7.2;
(15) the sale or other disposition of cash or Cash Equivalents;
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(16) the foreclosure, condemnation or any similar action with respect to any property or other assets;
(17) sales of accounts receivable and related assets or an interest therein of the type specified in the definition of “Qualified Receivables Transaction” to a Receivables Entity, and Investments in a Receivables Entity consisting of cash or Securitization Obligations;
(18) any disposition or expropriation of assets or Capital Stock which any Parent Note Guarantor or any Subsidiary is required by, or made in response to concerns raised by, a regulatory authority or court of competent jurisdiction;
(19) any disposition of Capital Stock, Debt or other securities of an Unrestricted Subsidiary;
(20) any disposition of assets to a Person who is providing services related to such assets, the provision of which have been or are to be outsourced by any Parent Note Guarantor or any Subsidiary to such Person;
(21) any disposition of Investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; provided that any cash or Cash Equivalents received in such disposition is applied in accordance with the requirements set forth in Section 7.7;
(22) contractual arrangements under long-term contracts with customers entered into by a Parent Note Guarantor or a Restricted Subsidiary in the ordinary course of business which are treated as sales for accounting purposes; provided that there is no transfer of title in connection with such contractual arrangement;
(23) any sale or disposition with respect to property built, repaired, improved, owned or otherwise acquired by the Parent Note Guarantors or any Subsidiary pursuant to customary Sale/Leaseback Transactions, asset securitizations and other similar financings permitted by the Indenture;
(24) any dispositions constituting the surrender of tax losses by Parent Note Guarantors or their Subsidiaries (1) to another Parent Note Guarantor or a Subsidiary; (2) in order to eliminate, satisfy or discharge any tax liability of any Person that was formerly a Subsidiary of a Parent Note Guarantor which has been disposed of pursuant to a disposal permitted by the terms of this Indenture, to the extent that such Parent Note Guarantor or a Subsidiary would have a liability (in the form of an indemnification obligation or otherwise) to one or more Persons in relation to such tax liability if not so eliminated, satisfied or discharged;
(25) leases or subleases to third parties of real property owned in fee or leased by a Parent Note Guarantor or a Restricted Subsidiary or a disposition or assignment (as
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lessor) of a lease of real property or right of way, in each case, in the ordinary course of business; or
(26) Permitted Asset Swaps.
“Asset Sale Notice” has the meaning set forth in the Credit and Guaranty Agreement.
“Asset Sale Offer” has the meaning set forth in Section 7.7(d).
“Asset Sale Payment Date” means a Business Day no earlier than 30 days nor later than 60 days subsequent to the date on which the Asset Sale Notice is delivered by the Borrower to the Lender and the Administrative Agent (other than as may be required by applicable law) under the Credit and Guaranty Agreement.
“Asset Sale Prepayment Amount” means the principal amount of the Loan the Borrower is required to offer to the Lender to prepay as a result of an Asset Sale Prepayment Event.
“Asset Sale Prepayment Event” means the Borrower has become obligated to make an offer to the Lender to prepay any portion of the principal amount of the Loan as a result of a covenant of the Borrower and Note Guarantors pursuant to Section 7.7.
“Authenticating Agent” means the Person acting as Authenticating Agent hereunder pursuant to Section 9.11(b).
“Authorized Agent” means any Paying Agent, Authenticating Agent, Note Registrar, Transfer Agent or other agent appointed by the Issuer or Indenture Trustee in accordance with this Indenture to perform any function that this Indenture authorizes the Indenture Trustee or such agent to perform.
“Authorized Representative” of the Issuer or any other Person means the person or persons authorized to act on behalf of such entity by its chief executive officer, president, chief operating officer, chief financial officer or any vice president or its Board of Directors or any other governing body of such entity, including, for the avoidance of doubt, any duly appointed attorney-in-fact of the Issuer.
“Authorized Signatory” means any officer of the Indenture Trustee or any other individual who shall be duly authorized by appropriate corporate action on the part of the Indenture Trustee to authenticate Notes.
“Bankruptcy Case” has the meaning set forth in Section 15.21.
“Bankruptcy Law” has the meaning set forth in Section 14.1(c).
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the Beneficial Ownership of any
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particular “person” (as that term is used in Section 13(d)(3) of the Exchange Act), such “person” will be deemed to have Beneficial Ownership of all securities that such “person” has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms “Beneficially Owns” and “Beneficially Owned” have a corresponding meaning.
“Board of Directors” means the board of directors of the Borrower or any Parent Note Guarantor.
“Board Resolution” means, with respect to any Person, a copy of a resolution certified by the President Chief Executive Officer, any Director, the Secretary or an Assistant Secretary of the Board of Directors or sole administrator (administrador único) of such Person to have been duly adopted by the Board of Directors or by the sole administrator (administrador único) of such Person and to be in full force and effect on the date of such certification, and delivered to the Indenture Trustee.
“Borrower” has the meaning set forth in the recitals to this Indenture.
“Business Day” means a day (other than a Saturday or Sunday) that is not (i) a day on which banking institutions in New York, New York, Guatemala City, Guatemala or the Cayman Islands generally are authorized or obligated by law, regulation or executive order to close, or (ii) a day on which banking and financial institutions in New York, New York Guatemala City, Guatemala or the Cayman Islands are closed for business with the general public.
“Capital Lease Obligation” of any Person means the obligation to pay rent or other payment amounts under a lease of real or personal property of such Person which is required to be classified and accounted for as a capital lease on the face of a balance sheet of such Person in accordance with IFRS. The Stated Maturity of such obligation shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of Debt represented by such obligation shall be the capitalized amount thereof that would appear on the face of a balance sheet of such Person in accordance with IFRS.
“Capital Stock” of any Person means any and all shares, interests, participation or other equivalents (however designated) of corporate stock or other equity participation, including partnership interests, whether general or limited, of such Person.
“Cash Equivalents” means, with respect to any Person:
(i) (a) United States dollars, Euros, Quetzales or money in other currencies received in the ordinary course of business and (b) any direct obligations of, or obligations guaranteed by, the United States of America (or by any agency thereof), the United Kingdom or any member of the European Union to the extent such obligations or guarantees are backed by the full faith and credit of the United States, the United
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Kingdom or such member of the European Union and which have a remaining Weighted Average Life to Maturity of not more than one year from the date of Investment therein;
(ii) term deposit accounts (excluding current and demand deposit accounts), certificates of deposit, time deposits and money market deposits, bankers’ acceptances and overnight bank deposits, in each case, issued by or with (a) BAC Guatemala, Banco G&T Continental, Banco Agricola Mercantil, Banco del Desarrollo Rural, Banco Industrial, Bank of America, BBVA, BNP Paribas, Citigroup (including Citibank, N.A. Guatemala Branch), Credit Suisse, DNB, Goldman Sachs, J.P. Morgan, Morgan Stanley, Santander Scotiabank or any of the lenders under the Revolving Credit Facility and their respective Affiliates, (b) any bank or trust company which is organized under the laws of the United States of America, any state thereof, the United Kingdom, Switzerland, Canada, Australia or any member state of the European Union, or Guatemala, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of US$100,000,000 (or the foreign currency equivalent thereof) and has outstanding debt which is rated no less than Investment Grade (or such similar equivalent rating) or higher by at least one Rating Agency, or (c) any money market funds rated at least AAA by at least one Rating Agency;
(iii) repurchase obligations with a term of not more than seven days for underlying securities of the types described in clauses (i)(a) and (b) entered into with any financial institution meeting the qualifications specified in clause (i)(b) above;
(iv) commercial paper having one of the two highest ratings obtainable from Fitch or Moody’s and in each case maturing within 365 days after the date of acquisition;
(v) money market mutual funds at least 95% of the assets of which constitute Cash Equivalents of the types described in clauses (i) through (iii) of this definition;
(vi) with respect to any Person organized under the laws of, or having its principal business operations in, a jurisdiction outside the United States, the United Kingdom or the European Union, those Investments that are of the same type as investments in clauses (i), (iii) and (iv) of this definition except that the obligor thereon is organized under the laws of the country (or any political subdivision thereof) in which such Person is organized or conducting business; and
(vii) up to US$2,000,000 (or the equivalent in other currencies) in aggregate of other Investments held by any of the Parent Note Guarantors or the Restricted Subsidiaries.
“Cash Management Loans” means Debt arising in connection with cash management and cash pooling arrangements between the Note Guarantors and their respective Subsidiaries, on the one hand, and Millicom and its Subsidiaries, on the other hand, in the ordinary course of business.
“Cayman Trustee” has the meaning set forth in the preamble to this Indenture.
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“Change of Control” has the meaning set forth in the Credit and Guaranty Agreement.
“Change of Control Notice” has the meaning set forth in the Credit and Guaranty Agreement.
“Change of Control Offer” has the meaning set forth in the Credit and Guaranty Agreement.
“Change of Control Payment” has the meaning set forth in the Section 4.2(a).
“Change of Control Payment Date” means a Business Day no earlier than 35 days nor later than 65 days subsequent to the date on which the Change of Control Notice is delivered by the Borrower to the Lender and the Administrative Agent (other than as may be required by applicable Law) under the Credit and Guaranty Agreement.
“Change of Control Prepayment Event” means the occurrence of both a Change of Control and a Rating Decline.
“Change of Control Remainder Event” has the meaning set forth in the Credit and Guaranty Agreement.
“Clearstream” means Clearstream Banking, société anonyme.
“Collateral” has the meaning set forth in Section 5.1.
“Combined EBITDA” means, for any period, the combined operating profit or loss of the Restricted Group (or the Person or group or Persons indicated), as such amount is determined in accordance with IFRS, plus the sum of the following amounts, in each case, without double counting (losses shall be added (as a positive number) and gains shall be deducted, in each case, to the extent such amounts were included in calculating operating profit):
(i) depreciation and amortization expenses;
(ii) the net loss or gain on the disposal and impairment of assets;
(iii) share-based compensation expenses;
(iv) at the Parent Note Guarantors’ option, other non-cash charges reducing operating profit (provided that if any such non-cash charge represents an accrual of or reserve for potential cash charges in any future period, the cash payment in respect thereof in such future period shall reduce operating profit to such extent, and excluding amortization of a prepaid cash item that was paid in a prior period) less other non-cash items of income increasing operating income (excluding any such non-cash item of income to the extent it represents (a) a receipt of cash payments in any future period, (b) the reversal of an accrual or reserve for a potential cash item that reduced operating income in
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any prior period and (c) any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase operating income in such prior period);
(v) any material extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge, including any charges or reserves in respect of any restructuring, redundancy, relocation, refinancing, integration or severance or other post-employment arrangements, signing, retention or completion bonuses, transaction costs, acquisition costs, disposition costs, business optimization, information technology implementation or development costs, costs related to governmental investigations and curtailments or modifications to pension or postretirement benefits schemes, litigation or any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events);
(vi) at the Parent Note Guarantors’ option, the effects of adjustments in its consolidated financial statements pursuant to IFRS (including inventory, property, equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items) attributable to the application of recapitalization accounting or acquisition accounting, as the case may be, in relation to any consummated acquisition or joint venture Investment or the amortization or write-off or write-down of amounts thereof, net of taxes;
(vii) any reasonable expenses, charges or other costs related to any Equity Offering, Investment, acquisition, disposition, recapitalization or the Incurrence of any Debt, in each case, as determined in good faith by a responsible financial or accounting officer of the Parent Note Guarantors;
(viii) any gains or losses on associates;
(ix) any unrealized gains or losses due to changes in the fair value of equity Investments;
(x) any unrealized gains or losses due to changes in the fair value of Interest Rate, Currency or Commodity Price Agreements;
(xi) any unrealized gains or losses due to changes in the carrying value of put options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate;
(xii) any unrealized gains or losses due to changes in the carrying value of call options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate;
(xiii) any net foreign exchange gains or losses;
(xiv) at the Parent Note Guarantors’ option, any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies;
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(xv) accruals and reserves that are established or adjusted within twelve months after the closing date of any acquisition that are so required to be established or adjusted as a result of such acquisition in accordance with IFRS;
(xvi) any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the Parent Note Guarantors have made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period);
(xvii) the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets;
(xviii) any net gain (or loss) realized upon any Sale/Leaseback Transaction that is not sold or otherwise disposed of in the ordinary course of business, determined in good faith by a responsible financial or accounting officer of the Parent Note Guarantors;
(xix) the amount of loss on the sale or transfer of any assets in connection with an asset securitization program, receivables factoring transaction or other receivables transaction (including, without limitation, a Qualified Receivables Transaction); and
(xx) Specified Legal Expenses.
For the purposes of calculating Combined EBITDA for any period, as of such date of determination:
(1) if, since the beginning of such period any Parent Note Guarantor or any Restricted Subsidiary has made any Asset Disposition or disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a “Sale”), including any Sale occurring in connection with a transaction causing a calculation to be made hereunder, then Combined EBITDA for such period will be reduced by an amount equal to the Combined EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Combined EBITDA (if negative) attributable thereto for such period;
(2) if, since the beginning of such period any Parent Note Guarantor or any Restricted Subsidiary (by merger or otherwise) will have made an Investment in any Person that thereby becomes a Restricted Subsidiary, or otherwise acquires any company, any business, or any group of assets constituting an operating unit of a business (any such Investment or acquisition, a “Purchase”), including any such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, then
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Combined EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period;
(3) if, since the beginning of such period any Person (that became a Restricted Subsidiary or was merged with or into any Parent Note Guarantor or any Restricted Subsidiary since the beginning of such period) will have made any Sale or any Purchase that would have required an adjustment pursuant to clauses (1) or (2) above if made by a Parent Note Guarantor or a Restricted Subsidiary since the beginning of such period, Combined EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period, including anticipated synergies and cost savings as if such Sale or Purchase occurred on the first day of such period;
(4) whenever pro forma effect is applied, the pro forma calculations will be as determined in good faith by a responsible financial or accounting officer of the Parent Note Guarantors (including in respect of anticipated synergies and cost savings) as though the full effect of synergies and cost savings were realized on the first day of the relevant period and shall also include the reasonably anticipated full run rate cost savings effect (as calculated in good faith by a responsible financial or chief accounting officer of the Parent Note Guarantors) of cost savings programs that have been initiated by the Parent Note Guarantors or their Subsidiaries as though such cost savings programs had been fully implemented on the first day of the relevant period; provided that if the aggregate amount of such anticipated synergies and cost savings exceed 5.0 % of the Combined EBITDA (calculated without reference to the applicable Purchase or Sale), such amounts are confirmed by a reputable, independent third party advisor;
(5) for the purposes of determining the amount of Combined EBITDA under this definition denominated in a foreign currency, the Parent Note Guarantors may, at its option, calculate the U.S. Dollar Equivalent amount of such Combined EBITDA based on either (i) the weighted average exchange rates for the relevant period used in the combined financial statements of the Parent Note Guarantors for such relevant period or (ii) the relevant currency exchange rate in effect on the Issue Date; and
(6) the amount of any fees payable by any person in the Restricted Group to another person in the Restricted Group or Millicom or any of its Subsidiaries in connection with any services rendered (including, without limitation, any Value Creation Fees and similar fees) shall be excluded.
For the purpose of calculating the Combined EBITDA of the Restricted Group, any Joint Venture EBITDA shall be added to the amount determined in accordance with the foregoing.
“Combined Interest Expense” means for any period the combined interest expense included in a combined income statement (without deduction of interest income) of the Parent Note Guarantors and their Restricted Group for such period calculated on a combined basis in
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accordance with IFRS, including without limitation or duplication (or, to the extent not so included, with the addition of):
(1) the amortization of Debt discounts;
(2) any payments or fees with respect to letters of credit, bankers’ acceptances or similar facilities;
(3) fees with respect to interest rate swap or similar agreements or foreign currency hedge, exchange or similar agreements;
(4) Preferred Stock dividends (other than with respect to Redeemable Stock) declared paid or payable;
(5) accrued Redeemable Stock dividends whether or not declared or paid;
(6) interest on Debt guaranteed by any Parent Note Guarantors or any member of their Restricted Group; and
The term “Combined Interest Expense” shall not include:
(i) interest on Capital Lease Obligations; or
(ii) interest on Debt owed to Millicom or any Subsidiary of Millicom.
“Combined Total Assets” means, as of any date of determination, the total assets shown on the combined balance sheet of the Parent Note Guarantors and the Restricted Subsidiaries as of the most recent date for which such a balance sheet is available, determined on a combined basis in accordance with IFRS, calculated to give pro forma effect to any acquisition (including through mergers or consolidations) and dispositions that have occurred subsequent to such period, including any such acquisitions to be made with the proceeds of Debt giving rise to the need to calculate Combined Total Assets.
“Common Stock” of any Person means Capital Stock of such 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 such Person, to shares of Capital Stock of any other class of such Person.
“Corporate Trust Office” means the office of the Indenture Trustee at which the corporate trust business of the Indenture Trustee under the Indenture is administered, which office is currently located at 240 Greenwich Street, New York, New York 10286, Attn: Corporate Trust Administration.
“Credit Facility” means, a debt facility, arrangement, instrument, trust deed, note purchase agreement, indenture, purchase money financing, commercial paper facility or overdraft facility with banks or other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such
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institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Debt, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended, in whole or in part from time to time, and in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including, but not limited to, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term “Credit Facility” shall include any agreement or instrument (i) changing the maturity of any Debt Incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Note Guarantors as additional borrowers or guarantors thereunder, (iii) increasing the amount of Debt Incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
“Credit and Guaranty Agreement” has the meaning set forth in the recitals to this Indenture.
“Credit and Guaranty Agreement Information” has the meaning set forth in the Participation Agreement.
“Custodian” has the meaning set forth in Section 2.5(d).
“Debt” means (without duplication), with respect to any Person, whether recourse is to all or a portion of the assets of such Person and whether or not contingent:
(1) the principal of and premium, if any, in respect of every obligation of such Person for money borrowed;
(2) the principal of and premium, if any, in respect of every obligation of such Person evidenced by bonds, debentures, notes or other similar instruments;
(3) every reimbursement obligation of such Person with respect to letters of credit, bankers’ acceptances or similar facilities issued for the account of such Person (but only to the extent such obligations are not reimbursed within 30 days following receipt by such Person of a demand for reimbursement); and
(4) the principal component of every obligation of the type referred to in clauses (1) through (3) of another Person and all dividends of another Person the payment of which, in either case, such Person has Guaranteed or is responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise to the extent not otherwise included in the Debt of such Person.
The “amount” or “principal amount” of Debt at any time of determination as used herein represented by (a) any Debt issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with IFRS, (b) any Redeemable Stock, shall be the maximum fixed redemption or repurchase price in respect thereof, and (c) any amount of Debt that has been cash-collateralized, to the
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extent so cash-collateralized, shall be excluded from any calculation of Debt. Notwithstanding anything else to the contrary, for all purposes under the Indenture, the amount of Debt Incurred, repaid, redeemed, repurchased or otherwise acquired by a Restricted Subsidiary of the Parent Note Guarantors shall equal the liability in respect thereof determined in accordance with IFRS and reflected on the Parent Note Guarantors’ combined statement of financial position.
The term Debt shall not include:
(i) Cash Management Loans;
(ii) any liability of the Note Guarantors or any of their Subsidiaries attributable to a synthetic instrument or any other arrangement or agreement to the extent such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS and recorded as a current liability on such Note Guarantors’ consolidated statement of financial position;
(iii) any Restricted MFS Cash;
(iv) any liability of the Note Guarantors attributable to a put option or similar instrument, arrangement or agreement entered into after the Issue Date granted by any Note Guarantor relating to an interest in any other entity, in each case to the extent such option has not been exercised or such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS, and recorded as a current liability on such Note Guarantor’s consolidated statement of financial position;
(v) any standby letter of credit, performance bond or surety bond provided by a Note Guarantor or any Subsidiary that is customary in the Related Business to the extent such letters of credit or bonds are not drawn upon or, if and to the extent drawn upon, are honored in accordance with their terms;
(vi) any deposits or prepayments received by the Parent Note Guarantors or a Subsidiary from a customer or subscriber for its service and any other deferred or prepaid revenue;
(vii) any obligations to make payments in relation to earn outs;
(viii) Debt which is in the nature of equity (other than Redeemable Stock) or equity derivatives;
(ix) Capital Lease Obligations or operating leases;
(x) Receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any debt in respect of Qualified Receivables Transactions, including without limitation guarantees by a Receivables Entity of the obligations of another Receivables Entity;
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(xi) pension obligations or any obligation under employee plans or employment agreements;
(xii) any “parallel debt” obligations to the extent that such obligations mirror other Debt;
(xiii) any payments or liability for assets acquired or services supplied deferred (including trade payables) in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied;
(xiv) the principal component or liquidation preference of all obligations of such Person with respect to the redemption, repayment or other repurchase of any Redeemable Stock or, with respect to any Subsidiary, any Preferred Stock (including, in each case, any accrued dividends);
(xv) any Debt (contingent or otherwise) which, when incurred, is without recourse to any Parent Note Guarantor or any Restricted Subsidiary, as applicable; and
(xvi) the net obligations of such Person under any Interest Rate, Currency or Commodity Price Agreement.
“Declaration of Trust” has the meaning set forth in the preamble to this Indenture.
“Default” means an event that with the passing of time or the giving of notice, or both would constitute an Event of Default.
“Denomination Currency” has the meaning set forth in Section 15.10(b).
“Distribution Compliance Period” means, with regard to Notes offered and sold in their initial distribution outside the United States in reliance on Regulation S, the period of 40 consecutive days beginning on the later of (a) the date on which the Notes are first offered to Persons other than distributors (as defined in Regulation S) in reliance on Regulation S (according to a written notice to the Indenture Trustee by the Initial Purchasers thereof) and (b) the date on which the Notes are initially issued, authenticated and sold.
“DTC” means The Depository Trust Company.
“Electronic Means” means the following communications methods: e-mail, facsimile transmission, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Indenture Trustee, or another method or system specified by the Indenture Trustee as available for use in connection with its services hereunder.
“Enforcer” means GTCS Enforcers Limited.
“Equity Offering” means a sale of Qualified Capital Stock of any Parent Note Guarantor or a Holding Company of any Parent Note Guarantor pursuant to which the Net Cash
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Proceeds are contributed to such Parent Note Guarantor in the form of a subscription for, or a capital contribution in respect of, Qualified Capital Stock of such Parent Note Guarantor.
“Euroclear” means Euroclear Bank S.A./N.V., as operator of the Euroclear System, N.V.
“Event of Default” has the meaning specified in Section 8.1.
“Excess Proceeds” has the meaning set forth in Section 7.7 herein.
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended and in effect from time to time.
“Excluded Contributions” means Net Cash Proceeds received by any Parent Note Guarantor from:
(i) contributions to its common equity capital;
(ii) Net Cash Proceeds from any stockholder loans; or
(iii) the sale (other than to a Subsidiary of any Parent Note Guarantor or to any management equity plan or stock option plan or any other management or employee benefit plan or agreement of any Parent Note Guarantor or any Subsidiary) of Capital Stock (other than Redeemable Stock) of any Parent Note Guarantor;
in each case designated as Excluded Contributions pursuant to an Officer’s Certificate executed by the principal financial officer of the relevant Parent Note Guarantor on the date such capital contributions are made or the date such equity interests are sold, as the case may be, and delivered to the Indenture Trustee.
“Expense Reimbursement and Indemnity Agreement” means the Expense Reimbursement and Indemnity Agreement, dated as of February 3, 2022, by and among the Borrower, the Loan Guarantors, the Lender, the Cayman Trustee, the Enforcer, the Indenture Trustee and the Authorized Agents.
“Financing Statement” has the meaning specified in Section 9-102(a)(39) of the UCC.
“Fitch” means Fitch Ratings Ltd., and its successors.
“GAAP” means generally accepted accounting principles in the United States.
“Global Note” means any Note issued in fully-registered certificated form to the Registered Depositary (or its nominee), as depositary for the beneficial owners thereof, which shall be substantially in the form of Exhibit A, with appropriate legends as specified in Exhibit A.
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“Governmental Approval” means any authorization, consent, approval, order, license, franchise, ruling, permit, certification, waiver, exemption, filing or registration by or with any Governmental Authority (including, without limitation, environmental approvals, zoning variances, special exceptions and non-conforming uses) relating to the execution, delivery or performance of any Transaction Document.
“Government Securities” means direct obligations of, or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States is pledged and which have a remaining weighted average life to maturity of not more than one year from the date of Investment therein.
“Governmental Authority” means the government of Guatemala or of the United States of America or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).
“Gradation” means a gradation within a Rating Category or a change to another Rating Category, which shall include: (i) “+” and “-” in the case of Fitch’s current Rating Categories (e.g., a decline from BB+ to BB would constitute a decrease of one Gradation), (ii) 1, 2 and 3 in the case of Moody’s current Rating Categories (e.g., a decline from Ba1 to Ba2 would constitute a decrease of one Gradation), or (iii) the equivalent in respect of successor Rating Categories of Fitch or Moody’s or Rating Categories used by Rating Agencies other than Fitch and Moody’s.
“Guarantee” by any Person means any obligation, contingent or otherwise, of such Person guaranteeing, or having the economic effect of guaranteeing, any Debt of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and including, without limitation, any obligation of such Person
(1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Debt or to purchase (or to advance or supply funds for the purchase of) any security for the payment of such Debt;
(2) to purchase property, securities or services for the purpose of assuring the holder of such Debt of the payment of such Debt; or
(3) to maintain working capital, equity capital or other financial statement condition or liquidity of the primary obligor so as to enable the primary obligor to pay such Debt (and “Guaranteed,” “Guaranteeing” and “Guarantor” shall have meanings correlative to the foregoing); provided, however, that the Guarantee by any Person shall not include endorsements by such Person for collection or deposit, in either case, in the ordinary course of business.
“Guaranteed Obligations” has the meaning set forth in Section 14.1.
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“Note Guarantors” has the meaning set forth in the preamble to this Indenture.
“Holding Company” means any Person (other than a natural person) which legally and Beneficially Owns more than 50% of the Voting Stock and/or Capital Stock of another Person, either directly or through one or more Subsidiaries.
“IFRS” means the International Financial Reporting Standards promulgated by the International Accounting Standards Board or any successor board or agency as in effect on the Issue Date; provided that the Parent Note Guarantors may, at any time, irrevocably elect by written notice to the Indenture Trustee to use IFRS as in effect from time to time, and, upon such notice, references herein to IFRS shall thereafter be construed to mean IFRS as in effect from time to time. The Parent Note Guarantors also may, at any time, irrevocably elect by written notice to the Indenture Trustee to use GAAP as in effect from time to time in lieu of IFRS and, upon such notice, references herein to IFRS shall thereafter be construed to mean GAAP as in effect from time to time.
“Incur” means, with respect to any Debt or other obligation of any Person, to create, issue, incur (by conversion, exchange or otherwise), assume, Guarantee or otherwise become liable in respect of such Debt or other obligation, including by acquisition of Subsidiaries (the Debt of any other Person becoming a Subsidiary of such Person being deemed for this purpose to have been incurred at the time such other Person becomes a Subsidiary), or the recording, as required pursuant to IFRS or otherwise, of any such Debt or other obligation on the balance sheet of such Person (and “Incurrence,” “Incurred,” “Incurrable” and “Incurring” shall have meanings correlative to the foregoing); provided, however, that a change in IFRS that results in an obligation of such Person that exists at such time becoming Debt shall not be deemed an Incurrence of such Debt.
“Indenture” has the meaning set forth in the preamble to this Indenture.
“Indenture Trustee” means the Person named as the “Indenture Trustee” in the preamble to this Indenture and its successors and assigns.
“Initial Notes” has the meaning set forth in the recitals to this Indenture.
“Initial Purchasers” means Goldman Sachs & Co. LLC, J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC, BNP Paribas Securities Corp. and Scotia Capital (USA) Inc. with respect to the initial issuance of the Initial Notes hereunder and such other parties as may be identified in a supplemental indenture with respect to any Additional Notes.
“Interest Rate” has the meaning set forth in Section 2.8.
“Interest Rate, Currency or Commodity Price Agreement” of any Person means any forward contract, futures contract, swap, option or other financial agreement or arrangement (including, without limitation, caps, floors, collars and similar agreements) relating to, or the value of which is dependent upon, interest rates, currency exchange rates or commodity prices or indices (excluding contracts for the purchase or sale of goods in the ordinary course of business).
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“Interest Payment Date” has the meaning set forth in Section 2.8.
“Intergroup Subordinated Loans” means (a) Debt of the Restricted Group owed to Millicom or any of its Subsidiaries (other than the Restricted Group), and (b) Debt of Millicom or any of its Subsidiaries (other than the Restricted Group) owed to any of the Restricted Group that, in each case, (1) it will not have the benefit of any negative pledge covenant, collateral or security interest, (2) the terms of which provide that, in the event that (a) an installment of interest with respect to such Debt is not paid on the applicable interest payment date or (b) the principal of, or premium, if any, on any such Debt is not paid on the stated maturity or other date set for redemption, then the obligation to make such payment on such interest payment date, maturity date or other redemption date will not be a default under such Debt until after the maturity date of the Notes, and (3) the terms of which provide that no amount will be payable in bankruptcy, liquidation or any similar proceeding with respect to the Person Incurring such Debt until all claims of senior creditors of such Person, including, without limitation, the Noteholders, admitted in such proceeding have been satisfied.
“Investment” by any Person means any direct or indirect loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise) to, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Debt issued by, any other Person, including any payment on a Guarantee of any obligation of such other Person, but shall not include (a) trade accounts receivable in the ordinary course of business on credit terms made generally available to the customers of such Person, or (b) commission, travel, payroll, entertainment, relocation and similar advances to officers and employees and profit sharing and other employee benefit plan contributions made in the ordinary course of business.
“Investment Company Act” means the United States Investment Company Act of 1940, as amended.
“Investment Grade” means (i) BBB- or above in the case of Fitch (or its equivalent under any successor Rating Categories of Fitch), (ii) Baa3 or above, in the case of Moody’s (or its equivalent under any successor Rating Categories of Moody’s), and (iii) the equivalent in respect of the Rating Categories of any other Rating Agencies.
“Issue Date” has the meaning set forth in Section 2.8.
“Issuer” has the meaning set forth in the preamble to this Indenture.
“Issuer Order” means a written request or order signed in the name of the Issuer by one or more of its Authorized Representatives and, in the case of an Issuer Order given pursuant to Section 2.2, substantially in the form of Exhibit B.
“Joint Venture EBITDA” means an amount equal to the product of (i) the Combined EBITDA of any joint venture (determined in good faith by a responsible financial or accounting officer of the Parent Note Guarantor on the same basis as provided for in the
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definition of “Combined EBITDA” (with the exception of clause (i) and the last sentence thereof) as if each reference to the “Parent Note Guarantor” in such definition was to such joint venture) whose financial results are not consolidated with those of any Parent Note Guarantor in accordance with IFRS and (ii) a percentage equal to the direct equity ownership percentage of the Parent Note Guarantor and/or their respective Subsidiaries in the Capital Stock of such joint venture and its Subsidiaries.
“Judgment Currency” has the meaning set forth in Section 15.10(b).
“Law” means any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding, injunction, enforceable at law or in equity, along with the interpretation and administration thereof by any Governmental Authority charged with the interpretation or administration thereof.
“LCT Election” has the meaning set forth in Section 7.9.
“LCT Test Date” has the meaning set forth in Section 7.9.
“Lender” has the meaning set forth in the recitals to this Indenture.
“Leverage Ratio,” when used in connection with any Incurrence (or deemed Incurrence) of Debt, means the ratio of (i) the principal amount of Debt of the Note Guarantors and their Restricted Group on a combined basis outstanding as of the most recent available quarterly or annual balance sheet, after giving pro forma effect to (a) the Incurrence of such Debt and any other Debt Incurred since such balance sheet date, (b) the receipt and application of the proceeds thereof and (c) (without duplication) the repayment, redemption or repurchase of any other Debt since such balance sheet date, to (ii) Combined EBITDA for the last four full fiscal quarters prior to the Incurrence of such Debt for which combined financial statements are available, determined on a pro forma basis as if any such Debt had been Incurred and the proceeds thereof had been applied, or such other Debt had been repaid, redeemed or repurchased, as applicable, at the beginning of such four fiscal quarter period.
“Lien” means, with respect to any property or assets, any mortgage, pledge, security interest, lien, charge, encumbrance, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).
“Limited Condition Transaction” means (i) any Investment or acquisition, in each case, by one or more of the Parent Note Guarantors and their Subsidiaries of any assets, business or Person whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Debt requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
“Loan” has the meaning set forth in the recitals to this Indenture.
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“Loan Collection Account” has the meaning set forth in Section 3.1.
“Loan Event of Default” has the meaning assigned to the term “Event of Default” under Section 10 of the Credit and Guaranty Agreement.
“Loan Guarantee” has the meaning set forth under “Guaranty” in Section 1.01 of the Credit and Guaranty Agreement.
“Loan Guarantors” has the meaning set forth in the preamble to this Indenture.
“Material Adverse Effect” means a material adverse effect on (a) the ability of the Issuer to perform its material obligations under this Indenture or any other Transaction Document, or (b) the rights of the Indenture Trustee, acting on behalf of the Noteholders, or such Noteholders, under any of the Transaction Documents.
“Market Capitalization” means an amount equal to (i) the total number of issued and outstanding shares of Capital Stock of the Borrower on the date of the declaration of the relevant dividend, multiplied by (ii) the arithmetic mean of the closing prices per share of such Capital Stock for the 30 consecutive trading days immediately preceding the date of the declaration of such dividend.
“Maturity” when used with respect to any Note, means the date on which the principal of such Note becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Maturity Date” has the meaning set forth in Section 2.7.
“Millicom” means Millicom International Cellular S.A.
“Moody’s” means Moody’s Investors Service, Inc., or any successor thereto.
“Non-U.S. Person” means any Person who is not a “U.S. Person” as defined in Regulation S under the Securities Act.
“Net Available Proceeds” from any Asset Disposition means cash or readily marketable cash equivalents received (including by way of sale or discounting of a note, installment receivable or other receivable, but excluding any Related Assets and other consideration received in the form of assumption by the acquiror of Debt or other obligations relating to such properties or assets) therefrom by any Parent Note Guarantor or any Restricted Subsidiary, net of:
(1) all legal, title and recording tax expenses, commissions and other fees and expenses Incurred and all federal, state, provincial, foreign and local taxes required to be accrued as a liability as a consequence of such Asset Disposition;
(2) all payments made by any Parent Note Guarantor or any Restricted Subsidiary, on any Debt which is secured by such assets in accordance with the terms of
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any Lien upon or with respect to such assets or which must by the terms of such Debt or Lien, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition;
(3) all distributions and other payments made to other equity holders in the Parent Note Guarantors’ Restricted Subsidiaries, or joint ventures as a result of such Asset Disposition; and
(4) appropriate amounts to be provided by the Parent Note Guarantors or any Restricted Subsidiary, as the case may be, as a reserve in accordance with IFRS, against any liabilities associated with such assets and retained by the Parent Note Guarantors or any Restricted Subsidiary, as the case may be, after such Asset Disposition, including, without limitation, liabilities under any indemnification obligations and severance and other employee termination costs associated with such Asset Disposition, in each case as determined by the Board of Directors, in its reasonable good faith judgment evidenced by a Board Resolution filed with the Indenture Trustee; provided, however, that any reduction in such reserve within twelve months following the consummation of such Asset Disposition will be treated for all purposes of the Indenture and the Notes as a new Asset Disposition at the time of such reduction with Net Available Proceeds equal to the amount of such reduction.
“Net Cash Proceeds” with respect to any issuance or sale of Capital Stock or any Incurrence of Debt, means the cash proceeds of such issuance or sale or such Incurrence net of attorneys’ fees, accountants’ fees, underwriters’ or placement agents’ fees, listing fees, discounts or commissions and brokerage, consultant and other fees, expenses and charges actually Incurred in connection with such issuance or sale or such Incurrence and net of taxes paid or payable (in the good faith determination of the Parent Note Guarantors) in connection with such issuance or sale or such Incurrence (including any repatriation of the proceeds of such sale or Incurrence).
“Note Additional Amounts” has the meaning set forth in Section 2.16.
“Notes Asset Sale Offer” has the meaning set forth in Section 7.7(e).
“Note Guarantee” has the meaning set forth in Section 14.1(a).
“Note Interest” means interest on the Notes at a fixed rate of 5.125% per annum.
“Note Redemption Event” has the meaning set forth in Section 4.1(a).
“Note Register” has the meaning set forth in Section 2.13.
“Note Registrar” means any Person acting as note registrar pursuant to Section 2.13.
“Noteholder” means a Person in whose name a Note is registered in the Note Register.
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“Notes” has the meaning set forth in the recitals to this Indenture.
“Notes Change of Control Offer” has the meaning set forth in Section 4.2(b).
“Obligations” has the meaning set forth in Section 5.1.
“Offering Memorandum” means the final offering memorandum dated January 27, 2022 relating to the Notes.
“Officer’s Certificate” means a certificate signed by the President, Chairman of the board of directors, any Vice Chairman of the board of directors, any Director, the Chief Executive Officer, the Chief Financial Officer, any Senior Vice President, or the Secretary of the board of directors of any Person, or in the case of the Issuer, by any authorized representative thereof, and delivered to the Indenture Trustee.
“Opinion of Counsel” means a written opinion of counsel in compliance with the requirements of Section 15.1 hereof from any Person either expressly referred to herein or otherwise reasonably satisfactory to the Indenture Trustee which may include, without limitation, counsel for such Person, whether or not such counsel is an employee of such Person.
“Optional Redemption Event” has the meaning set forth in Section 4.1(a).
“Other Taxes” has the meaning set forth in the Credit and Guaranty Agreement.
“Outstanding”, when used with respect to Notes, means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Indenture Trustee or delivered to the Indenture Trustee for cancellation;
(ii) Notes for whose payment or redemption money in the necessary amount has been theretofore deposited with the Indenture Trustee or any Paying Agent (other than a Note Guarantor) in trust or set aside and segregated in trust by a Note Guarantor (if such Note Guarantor shall act as its own Paying Agent) for the Noteholders of such Notes; provided that, if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to the Indenture or provision therefor satisfactory to the Indenture Trustee has been made; and
(iii) Notes which have been paid or in exchange for or in lieu of which other Notes have been authenticated and delivered pursuant to this Indenture, other than any such Notes in respect of which there shall have been presented to the Indenture Trustee proof satisfactory to it that such Notes are held by a bona fide purchaser in whose hands such Notes are valid obligations of the Parent Note Guarantors;
provided, however, that in determining whether the holders of the requisite principal amount of the Outstanding Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder, Notes owned by any Note Guarantor or any other
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obligor upon the Notes or any Affiliate of any Note Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes which a Responsible Officer of the Indenture Trustee receives written notice confirming that such Notes are so owned shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgee’s right so to act with respect to such Notes and that the pledgee is not any Note Guarantor or any other obligor upon the Notes or any Affiliate of any Note Guarantor or of such other obligor.
“Parent Note Guarantor” has the meaning set forth in the preamble to this Indenture.
“Parent Note Guarantor Expenses” means (A) the reasonable fees and expenses actually incurred in connection with servicing of the Loan and the Notes or any exchange of securities or tender for outstanding Notes, (B) fees, taxes and expenses required to maintain the corporate existence of the Note Guarantors, and (C) any other fees and expenses relating to (A) or (B).
“Participation” means a 100% interest in all of the Lender’s rights under the Credit and Guaranty Agreement, the Loan, and all guarantees, security agreements, mortgages, deeds of trust, letters of credit, reimbursement agreements, waivers, amendments, modifications, supplements, forbearances, intercreditor agreements, subordination agreements and all other agreements, documents or instruments executed and delivered in connection therewith acquired by the Issuer pursuant to the Participation Agreement.
“Participation Agreement” has the meaning set forth in the recitals to this Indenture.
“Pari Passu Debt” means any Debt of the Note Guarantors that ranks pari passu in right of payment to the Loan and the Guarantees.
“Paying Agents” mean the Persons named as paying agents in the preamble to this Indenture, each other paying agent appointed pursuant to this Indenture and each of their respective successors and assigns.
“Payment Account” means the account contemplated in Section 3.2 hereof.
“Payment Date” means any of the Interest Payment Dates, the Maturity Date or any other date on which payments on the Notes in respect of principal, interest or other amounts are required to be paid pursuant to this Indenture and the Notes.
“Permitted Asset Swap” means the concurrent purchase and sale or exchange of related business assets or a combination of related business assets, cash and Cash Equivalents between the Parent Note Guarantors or any of their Subsidiaries and another Person.
“Permitted Debt” has the meaning set forth in Section 7.1(b).
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“Permitted Investments” means:
(1) Investments in (i) Cash Equivalents or (ii) deposit accounts, certificates of deposit and time deposits and money market deposits, bankers’ acceptances and overnight bank deposits, in each case issued by or with a bank or trust company which is organized under the laws of the jurisdiction in which the Note Guarantor or Restricted Subsidiary which makes such Investment operates; provided that the Parent Note Guarantors shall use their reasonable efforts to ensure that any such bank or trust company described in this clause (ii) is a credit-worthy institution;
(2) Investments by any Parent Note Guarantor or any Restricted Subsidiary in a Note Guarantor or a Restricted Subsidiary that is primarily engaged in a Related Business;
(3) Investments by a Parent Note Guarantor or any Restricted Subsidiary in a Person, if as a result of such Investment (i) such Person becomes a Restricted Subsidiary that is primarily engaged in a Related Business or (ii) such Person is merged, consolidated or amalgamated into, or transfers or conveys all or substantially all of its assets to, or is liquidated into, a Note Guarantor or a Restricted Subsidiary that is primarily engaged in a Related Business;
(4) Investments acquired as consideration as permitted under “Limitation on Asset Dispositions”;
(5) Restricted Payments directly or indirectly to a Parent Note Guarantor to fund permitted Parent Note Guarantor Expenses;
(6) Reasonable and customary payments to or on behalf of any of the directors, officers or employees of the Restricted Group or Millicom or any of its Subsidiaries, or in reimbursement of reasonable and customary payments or reasonable and customary expenditures made or Incurred by such Persons as directors, officers or employees;
(7) Investments in customers and suppliers in the ordinary course of business which either (A) generate accounts receivable or (B) are accepted in settlement of bona fide disputes;
(8) loans or advances to employees and officers (or loans to any direct or indirect parent, the proceeds of which are used to make loans or advances to employees or officers, or Guarantees of third-party loans to employees or officers) in the ordinary course of business;
(9) stock, obligations or securities received in satisfaction of judgments, foreclosure of liens or settlement of debts (whether pursuant to a plan of reorganization or similar arrangement or otherwise);
(10) any Investment existing on the Issue Date;
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(11) Investments in Interest Rate, Currency or Commodity Price Agreements not otherwise prohibited under the Indenture;
(12) Investments in Millicom or any Subsidiary of Millicom for the purpose of acquiring any property so long as such acquired property is transferred to the Parent Note Guarantor or a Restricted Subsidiary within 60 days of such Investment;
(13) Investments made pursuant to Section 7.7(a)(3)(i)(D), (E) and (F);
(14) Cash Management Loans;
(15) Intergroup Subordinated Loans; and
(16) other Investments in Persons primarily engaged in a Related Business in an aggregate cumulative amount at any time outstanding not to exceed US$50,000,000.
“Permitted Liens” means:
(1) Liens for taxes, assessments or governmental charges or levies on the property of any Parent Note Guarantor or any Restricted Subsidiary if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceeds promptly instituted and diligently concluded; provided that any reserve or other appropriate provision that shall be required in conformity with IFRS shall have been made therefor;
(2) Liens imposed by law, such as statutory Liens of landlords’, carriers’, warehousemen’s and mechanics’ Liens and other similar Liens, on the property of any Parent Note Guarantor or any Restricted Subsidiary arising in the ordinary course of business or Liens arising solely by virtue of any statutory or common law (but not contractual) provisions relating to bankers’ liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution;
(3) Liens on the property of any Parent Note Guarantor or any Restricted Subsidiary Incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance bids, trade contracts, letters of credit performance or return-of-money bonds, surety bonds, obligations in connection with a bid or other process for the award or acquisition of a telecommunications license or usufruct right, or other obligations of a like nature and Incurred in a manner consistent with industry practice, in each case which are not Incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Parent Note Guarantors and the Restricted Group taken as a whole;
(4) Liens on property at the time any Parent Note Guarantor or any Restricted Subsidiary acquired such property, including any acquisition by means of a merger or
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consolidation with or into any Parent Note Guarantor or any Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of any Parent Note Guarantor or any Restricted Subsidiary;
(5) Liens on the property of a Person at the time such Person becomes a Restricted Subsidiary; provided, however, that any such Lien may not extend to any other property of any Parent Note Guarantor, any other Restricted Subsidiary that is not a direct or, prior to such time, indirect Subsidiary of such Person, other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition of property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisitions;
(6) pledges or deposits by any Parent Note Guarantor or any Restricted Subsidiary under workmen’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Debt) or leases to which any Parent Note Guarantor or any Restricted Subsidiary is party, or deposits to secure public or statutory obligations of any Parent Note Guarantor or any Restricted Subsidiary or deposits for the payment of rent, in each case Incurred in the ordinary course of business;
(7) utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character;
(8) Liens in favor of a credit card processor arising in the ordinary course of business under any processor agreement;
(9) any provision for the retention of title to any property by the vendor or transferor of such property which property is acquired by any Parent Note Guarantor or a Restricted Subsidiary in a transaction entered into in the ordinary course of business of any Parent Note Guarantor or a Restricted Subsidiary and for which kind of transaction it is customary market practice for such retention of title provision to be included;
(10) Liens arising by means of any judgment, decree or order of any court, to the extent not otherwise resulting in a Default hereunder so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order have not been fully terminated or the period within which such proceedings may be initiated has not expired and any Liens that are required to protect or enforce rights in any administrative, arbitration or other court proceeding in the ordinary course of business;
(11) Liens securing any Credit Facility permitted under Section 7.1(b)(iii) or any Interest Rate, Currency or Commodity Price Agreement;
(12) Liens on and pledges of the Capital Stock of any Unrestricted Subsidiary to secure Debt of that Unrestricted Subsidiary;
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(13) mortgages, liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which any Parent Note Guarantor or any Restricted Subsidiary has easement rights or on any real property leased by any Parent Note Guarantor or any Restricted Subsidiary or similar agreements relating thereto and any condemnation or eminent domain proceedings or compulsory purchase order affecting real property;
(14) Liens existing on the date of the Indenture;
(15) Liens in favor of any Parent Note Guarantor or any Restricted Subsidiary;
(16) Liens on insurance policies and the proceeds thereof, or other deposits, to secure insurance premium financings in respect of any Parent Note Guarantor or any of its Restricted Subsidiaries;
(17) Liens arising from financing statement filings (or other similar filings in any applicable jurisdiction) regarding operating leases entered into by any Restricted Subsidiary of the Parent Note Guarantors in the ordinary course of business;
(18) Liens on goods (and the proceeds thereof) and documents of title and the property covered thereby securing Debt in respect of commercial letters of credit issued to facilitate the purchase, shipment or storage of such inventory or other goods;
(19) Liens for the purpose of securing the payment of all or a part of the purchase price of Capital Lease Obligations or payments Incurred by the Parent Note Guarantors or their respective Subsidiaries to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that such Liens do not encumber any other assets or property of any Parent Note Guarantor or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(20) Liens on property of any Parent Note Guarantor or any Restricted Subsidiary to secure Debt Incurred by any Parent Note Guarantor or such Restricted Subsidiary pursuant to clauses (viii), (ix), (x), and (xi) of the definition of Permitted Debt set forth in Section 7.1(b);
(21) Liens on the property of any Parent Note Guarantor or any Restricted Subsidiary to replace in whole or in part, any Lien described in the foregoing clauses (1) through (19); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Debt being refinanced or in respect of property that is the security for a Permitted Lien hereunder;
(22) Any interest or title of a lessor under any Capital Lease Obligation or operating lease;
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(23) Liens on any escrow account used in connection with an acquisition of property or Capital Stock of any Person or pre-funding a refinancing of Debt otherwise permissible by the Indenture;
(24) Liens on any Parent Note Guarantor’s and any of their respective Subsidiaries’ deposits in favor of financial institutions arising from any netting or set-off arrangement substantially consistent with its current practice for the purpose of netting debt and credit balances substantially consistent with the Parent Note Guarantor’s or the Subsidiaries existing future cash pooling arrangements;
(25) Liens Incurred in the ordinary course of business of the Parent Note Guarantors or any Restricted Subsidiary with respect to obligations that do not exceed the greater of US$100,000,000 or 6% of the Combined Total Assets at any one time outstanding and that do not in the aggregate materially detract from the value of the property of the Parent Note Guarantors and the Restricted Subsidiaries, taken as a whole, or materially impair the use thereof in the operation of business by such Parent Note Guarantor or such Restricted Subsidiary;
(26) Liens over cash or other assets that secure collateralized obligations Incurred as Permitted Debt; provided that the amount of cash collateral does not exceed the principal amount of the Permitted Debt;
(27) Liens on Receivables and related assets of the type described in the definition of “Qualified Receivables Transaction” Incurred in connection with a Qualified Receivables Transaction, and Liens on Investments in Receivables Entities;
(28) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Transaction;
(29) Liens for the purpose of perfecting the ownership interests of a purchaser of Receivables and related assets pursuant to any Qualified Receivables Transaction;
(30) Liens arising in connection with other sales of Receivables permitted hereunder without recourse to any Parent Note Guarantor or any of the Restricted Subsidiaries;
(31) Liens securing Debt or other obligations of a Restricted Subsidiary owing to any Parent Note Guarantor or another Restricted Subsidiary;
(32) Liens in respect of the ownership interests in, or assets owned by, any joint ventures or similar arrangements, other than joint ventures and similar arrangements that are Restricted Subsidiaries, securing obligations of such joint ventures or similar agreements;
(33) any encumbrance or restriction (including, but not limited to, put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
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(34) Liens for the benefit of the Lender or the Noteholders; and
(35) Liens over rights under loan agreements relating to, or over notes or similar instruments evidencing, the on-loan of proceeds received by a Restricted Subsidiary from the issuance of Debt, which Liens are created to secure payment of such Debt.
“Permitted Refinancing Debt” means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, for purposes of this definition and clause (vii) of the definition of Permitted Debt, a “refinancing”) of any Debt of the Note Guarantors or the Restricted Subsidiaries or pursuant to this definition, including any successive refinancings, as long as:
(i) such Permitted Refinancing Debt is in an aggregate principal amount (or if Incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (a) the aggregate principal amount (or if Incurred with original issue discount, the aggregate accreted value plus all accrued interest) then outstanding of the Debt being refinanced; and (b) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing;
(ii) such Permitted Refinancing Debt has (a) a Stated Maturity that is either (1) no earlier than the Stated Maturity of the Debt being refinanced or (2) after the Stated Maturity of the Notes and (b) a Weighted Average Life to Maturity that is equal to or greater than the Weighted Average Life to Maturity of the Debt being refinanced;
(iii) if the Debt being refinanced is subordinated in right of payment to the Note Guarantee and the Loan, such Permitted Refinancing Debt is subordinated in right of payment to the Note Guarantee and the Loan on terms at least as favorable to the Noteholders as those contained in the documentation governing the Debt being refinanced; and
(iv) if a Note Guarantor was the obligor on the Debt being refinanced, such Permitted Refinancing Debt is Incurred by such Note Guarantor.
Permitted Refinancing Debt in respect of any Credit Facility or any other Debt may be Incurred from time to time after the termination, discharge or repayment of all or any part of such Credit Facility or other Debt.
“Person” means any natural person, corporation, company, voluntary association, partnership, limited liability company, joint venture, trust, unincorporated organization or Governmental Authority or other entity of whatever nature.
“Place of Payment”, when used with respect to the Notes, means the offices or agencies maintained pursuant to Section 9.11 and such other place or places, if any, specified by the Issuer for such purpose; provided, however, that so long as the Notes are held in the name of the Registered Depositary or its nominee, the Indenture Trustee or such Paying Agent will make
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such payments to the Registered Depositary or its nominee, as the case may be, in accordance with the Registered Depositary’s Applicable Procedures.
“Predecessor Notes”, with respect to any particular Note, means any previous Note evidencing all or a portion of the same debt as that evidenced by such particular Note; for the purposes of this definition, any Note authenticated and delivered under Section 2.14 in lieu of a lost, destroyed or stolen Note shall be deemed to evidence the same debt as the lost, destroyed or stolen Note.
“Preferred Stock” of any Person means Capital Stock of such Person of any class or classes (however designated) that ranks prior, as to the payment of dividends or as to the distribution of assets upon any voluntary or involuntary liquidation, provisional liquidation, dissolution or winding up of such Person, to shares of Capital Stock of any other class of such Person.
“Prepayment Amount” means all amounts paid by the Borrower to the Lender pursuant to the Credit and Guaranty Agreement as a result of a Note Redemption Event.
“Process Agent” has the meaning set forth in Section 15.15.
“Promissory Note” has the meaning set forth in the Credit and Guaranty Agreement.
“Purchase Money Obligations” means any Debt Incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any Person owning such property or assets, or otherwise.
“QIB” means a qualified institutional buyer as defined in Rule 144A under the Securities Act.
“Qualified Capital Stock” of any Person means any and all Capital Stock of such Person other than Redeemable Stock.
“Qualified Purchaser” means a qualified purchaser as defined in Section 2(a)(51) of the Investment Company Act.
“Qualified Receivables Transaction” means any transaction or series of transactions that may be entered into by any Parent Note Guarantor or any of the Restricted Subsidiaries pursuant to which any Parent Note Guarantor or any of the Restricted Subsidiaries may sell, convey or otherwise transfer to (i) a Receivables Entity (in the case of a transfer by any Parent Note Guarantor or any of the Restricted Subsidiaries) and (ii) any other Person (in the case of a transfer by a Receivables Entity), or may grant a Lien in, any Receivables (whether now existing or arising in the future) of any Parent Note Guarantor or any of the Restricted Subsidiaries, and any assets related thereto including, without limitation, all collateral securing such Receivables, all contracts and all Guarantees or other obligations in respect of such
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accounts receivable, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which Liens are customarily granted, in connection with asset securitization involving Receivables and any Interest Rate, Currency or Commodity Price Agreement entered into by any such Parent Note Guarantor or any such Restricted Subsidiary in connection with such Receivables.
“Rating Agency” means each of (i) Fitch, Moody’s and S&P or (ii) if any of Fitch, Moody’s or S&P are not making ratings of the Notes publicly available, an internationally recognized rating agency or agencies as the case may be, selected by the Borrower, which will be substituted for such Rating Agency that is not making ratings of the Notes publicly available.
“Rating Category” means (i) with respect to Fitch, any of the following categories (any of which may include a “+” or “—”): AAA, AA, A, BBB, BB, B, CCC, CC, C, R, SD and D (or equivalent successor categories); (ii) with respect to Moody’s, any of the following categories (any of which may include a “1,” “2” or “3”): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, and C (or equivalent successor categories), and (iii) the equivalent of any such categories of Fitch or Moody’s used by another Rating Agency, if applicable.
“Rating Decline” means the occurrence if at any time within the earlier of (i) 90 days after the date of public notice of a Change of Control, or of any Parent Note Guarantors’ intention or the intention of any Person to effect a Change of Control and (ii) the occurrence of the Change of Control (which period shall in either event be extended so long as the rating of the Notes is under publicly announced consideration for possible downgrade by a Rating Agency), the rating of the Notes is decreased by a Rating Agency by two or more Gradations expressly stated to be due to a Change of Control.
“Receivable” means a right to receive payment arising from a sale or lease of goods or the performance of services by a Person pursuant to an arrangement with another Person pursuant to which such other Person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an “account,” “chattel paper,” “payment intangible” or “instrument” under the Uniform Commercial Code as in effect in the State of New York and any “supporting obligations” as so defined.
“Receivables Entity” means a Wholly Owned Subsidiary of any of the Parent Note Guarantors (or another Person in which the Parent Note Guarantors or any Subsidiary make an Investment or to which a Parent Note Guarantor or any Subsidiary transfers Receivables and related assets) which engages in no activities other than in connection with the financing of Receivables and which is designated by the Board of Directors or senior management of a Parent Note Guarantor (as provided below) as a Receivables Entity:
(i) no portion of the Debt or any other obligations (contingent or otherwise) of which:
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(a) is Guaranteed by any Parent Note Guarantor or any of their Subsidiaries (excluding Guarantees of obligations (other than the principal of, and interest on, Debt) pursuant to Standard Securitization Undertakings);
(b) is recourse to or obligates any Parent Note Guarantor or any of their Subsidiaries in any way other than pursuant to Standard Securitization Undertakings; or
(c) subjects any property or asset of any Parent Note Guarantor or any of their Subsidiaries, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitization Undertakings except, in each such case, Permitted Liens as defined in clauses (26) through (29) of the definition thereof;
(ii) with which neither the Parent Note Guarantors nor any of their Subsidiary has any material contract, agreement, arrangement or understanding (except in connection with a Purchase Money Obligation or Qualified Receivables Transaction) other than on terms not materially less favorable to such Parent Note Guarantor or such Subsidiary than those that might be obtained at the time from Persons that are not Affiliates of the Parent Note Guarantors, other than fees payable in the ordinary course of business in connection with servicing Receivables; and
(iii) to which neither the Parent Note Guarantors nor any of their Subsidiaries have any obligation to maintain or preserve such entity’s financial condition or cause such entity to achieve certain levels of operating results (other than those related to or incidental to the relevant Qualified Receivables Transaction).
Any such designation by the Board of Directors or senior management of the Parent Note Guarantors shall be evidenced to the Indenture Trustee by promptly filing with the Indenture Trustee a certified copy of the Board Resolutions of the applicable Parent Note Guarantor giving effect to such designation or an Officer’s Certificate certifying that such designation complied with the foregoing conditions.
“Receivables Repurchase Obligation” means any obligation of a seller of Receivables in a Qualified Receivables Transaction to repurchase Receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defense, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
“Record Date” means the January 18 or July 18, as the case may be, immediately preceding an interest payment date.
“Redeemable Stock” of any Person means any Capital Stock of such Person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including upon the occurrence of an event) matures or is required to
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be redeemed (pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for Debt or is redeemable at the option of the holder thereof, in whole or in part, at any time prior to the final Stated Maturity of the Notes or the Loan.
“Registered Depositary” means The Depository Trust Company, having a principal office at 55 Water Street, New York, New York 10041-0099, together with any Person succeeding thereto by merger, consolidation or acquisition of all or substantially all of its assets, including substantially all of its securities payment and transfer operations.
“Regulation S” means Regulation S promulgated under the Securities Act, as amended and in effect from time to time.
“Regulation S Note” means a Note sold in reliance on Regulation S, including a Regulation S Unrestricted Global Note, required to bear the Restrictive Legend provided for in Exhibit A-2.
“Regulation S Unrestricted Global Note” has the meaning set forth in Section 2.5(b)
“Related Assets” means all assets, rights (contractual or otherwise) and properties, whether tangible or intangible (including ownership interests), used or intended for use in connection with a Related Business.
“Related Business” means any business in which any Parent Note Guarantor or their Subsidiaries are engaged, directly or indirectly, that consists primarily of, or are related to, operating, acquiring, developing or constructing any telecommunications, media or financial services (including, without limitation, fixed and mobile telephony, broadband internet, network- related services, cable television, satellite television, broadcast, music and video related content, software, applications, value-added services (VAS), network-neutral services, electronic transactional, financial and commercial services related to the remittance of money, including licensed banking operations, or provision of telephony or internet services) and related businesses.
“Related Person” of any Person means any other Person directly or indirectly owning (a) 5% or more of the outstanding Common Stock of such Person (or, in the case of a Person that is not a corporation, 5% or more of the equity interest in such Person) or (b) 5% or more of the combined voting power of the Voting Stock of such Person.
“Relevant Taxing Jurisdiction” means Guatemala, the Cayman Islands, the United States, or any other jurisdiction from or through which payments under the Credit and Guaranty Agreement, the Participation Agreement, the Expense Reimbursement and Indemnity Agreement, this Indenture or the Notes are made, or any political subdivision thereof or any authority therein having power to tax.
“Required Holders” means Noteholders of more than 50% of the aggregate principal amount of the Outstanding Notes.
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“Responsible Officer” means, any officer of the Indenture Trustee with direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer of the Indenture Trustee to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Restricted Cash” means the amount of cash that would be stated as “restricted cash” on the combined statement of financial position of the Parent Note Guarantors as of such date in accordance with IFRS.
“Restricted Group” means the Parent Note Guarantors and the Restricted Subsidiaries, taken together on a combined basis.
“Restricted MFS Cash” means, as of any date of determination, an amount equal to any cash paid in or deposited by or held on behalf of any customer or dealer of, or any other third party in relation to, one or more of the Note Guarantors’ Subsidiaries engaged in the provision of mobile financial services and designated as “restricted cash” on the consolidated statement of financial position of such Note Guarantor, together with any interest thereon.
“Restricted Note” means a Note sold in reliance on Rule 144A, including a Rule 144A Restricted Global Note, required to bear the Restrictive Legend provided for in Exhibit A-1.
“Restricted Payment” has the meaning set forth in Section 7.2(a).
“Restricted Subsidiary” means any Subsidiary of any Parent Note Guarantor or any other Restricted Subsidiary, other than an Unrestricted Subsidiary.
“Restrictive Legend” means the legends required by the forms of Note attached hereto as Exhibits A-1 and A-2.
“Revolving Credit Facility’ means the $600,000,000 revolving credit facility agreement dated October 15, 2020 entered into by Millicom and a consortium of banks, which may be increased in an additional $300,000,000, as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part).
“Rule 144” means Rule 144 promulgated under the Securities Act, as amended and in effect from time to time.
“Reversion Date” has the meaning set forth in Section 7.14(b).
“Rule 144A” means Rule 144A promulgated under the Securities Act, as amended and in effect from time to time.
“Rule 144A Restricted Global Note” has the meaning set forth in Section 2.5(a).
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“S&P” means S&P Global Ratings (a division of S&P Global Inc.) and its successors.
“Sale and Lease-back Transaction” means any direct or indirect arrangement relating to assets or property now owned or hereafter acquired whereby any Parent Note Guarantor or a Restricted Subsidiary transfers such assets or property to another Person and such Parent Note Guarantor or such Restricted Subsidiary leases it from such Person.
“Section 3(c)(7) Reminder Notice” means a notice from the Issuer to the Noteholders to be delivered in accordance with Section 9.1 and in the form of Exhibit F.
“SEC” means the Securities and Exchange Commission.
“Securities Act” means the United States Securities Act of 1933, as amended.
“Securitization Obligations” means any Debt or other obligation of any Receivables Entity.
“Senior Secured Debt” means, as of any date of determination, any Debt of a Parent Note Guarantor or any Restricted Subsidiary that is secured by a security interest in any assets of a Parent Note Guarantor or any of its respective Subsidiaries.
“Shareholder Loans” means Debt of the Parent Note Guarantor or a Subsidiary of Parent Note Guarantor that is issued to and held by an equity owner of such the Parent Note Guarantor or such Subsidiary, other than any the Parent Note Guarantor or a Subsidiary of a Parent Note Guarantor, that, in each case, (1) will not have the benefit of any negative pledge covenant, collateral or security interest, (2) the terms of which provide that, in the event that (a) an installment of interest with respect to such Debt is not paid on the applicable interest payment date or (b) the principal of, or premium, if any, on any such Debt is not paid on the stated maturity or other date set for redemption, then the obligation to make such payment on such interest payment date, maturity date or other redemption date will not be a default under such Debt until after the maturity date of the Loan, and (3) the terms of which provide that no amount will be payable in bankruptcy, liquidation or any similar proceeding with respect to the Person Incurring such Debt until all claims of senior creditors of such Person, including, without limitation, the Noteholders and the Lender under the Loan, admitted in such proceeding have been satisfied.
“Significant Subsidiary” means any Restricted Subsidiary that would be, in respect of the Note Guarantors and their Subsidiaries taken as a whole, a “significant subsidiary” as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such regulation is in effect on the date of this Indenture.
“Specified Legal Expenses” means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys’ and experts’ fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any
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threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative).
“Standard Securitization Undertakings” means representations, warranties, covenants and indemnities entered into by any Parent Note Guarantor or any Subsidiary which are reasonably customary in a securitization of Receivables transactions, including, without limitation, those relating to the servicing of the assets of a Receivables Entity, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitization Undertaking.
“Stated Maturity”, when used with respect to any security or any installment of interest thereon, means the date specified in such security as the fixed date on which the principal of such security or such installment of interest is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
“Subsidiary” of any Person means (i) a corporation more than 50% of the combined voting power of the outstanding Voting Stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (ii) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof.
“Subsidiary Guarantor” has the meaning set forth in Section 14.3(a).
“Suspended Covenants” has the meaning set forth in Section 7.14(a).
“Taxes” means all taxes, withholdings, duties, levies, assessments, value-added taxes or other governmental charges (including interest and penalties) imposed or levied by or on behalf of any Relevant Taxing Jurisdiction.
“Tax Reimbursement Payments” has the meaning set forth in the Expense Reimbursement and Indemnity Agreement.
“Tower Equipment” means passive infrastructure related to telecommunications services, excluding telecommunications equipment, but including, without limitation, towers (including tower lights and lightning rods), power breakers, deep cycle batteries, generators, voltage regulators, main AC power, rooftop masts, cable ladders, grounding, walls and fences, access roads, shelters, air conditioners and BTS batteries owned by any Parent Note Guarantor or any Restricted Subsidiary of a Parent Note Guarantor.
“Transaction Documents” means the Notes, this Indenture (including the Note Guarantees provided for herein), the Credit and Guaranty Agreement, the Promissory Note, the Participation Agreement and the Expense Reimbursement and Indemnity Agreement.
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“Transfer Agent” means the Person named as transfer agent in the preamble to this Indenture, each other transfer agent appointed pursuant to this Indenture and each of their respective successors and assigns.
“Trust” has the meaning set forth in the preamble to this Indenture.
“Trust Assets” means the Issuer’s Participation interest in the Loan and all its right, title and interest in, to and under the Participation Agreement, its right to receive cash and all other distributions and proceeds under the Participation Agreement, all cash and other distributions and proceeds received in respect of this Indenture, the Credit and Guaranty Agreement, the Expense Reimbursement and Indemnity Agreement and any other Transaction Documents, as applicable, and all rights, title and interest in, to, under and related to the foregoing.
“UCC” means the Uniform Commercial Code as in effect in the State of New York or, if different, the state of the United States that governs the perfection of the relevant security interest, in each case, as amended from time to time.
“United States” or “U.S.” means the United States of America.
“U.S. Dollar Equivalent” means with respect to any monetary amount in a currency other than U.S. dollars, at any time of determination thereof, the amount of U.S. dollars obtained by translating such other currency involved in such computation into U.S. dollars at the spot rate for the purchase of U.S. dollars with the applicable other currency as published in the Financial Times on the date that is two Business Days prior to such determination.
“U.S. Government Obligations” means direct obligations (or certificates representing an ownership interest in such obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the issuer’s option.
“Value Creation Fees” means any fees, royalties, management, consultancy or stewardship fees, service fees and any other fees paid by any of the Restricted Group to Millicom or any of its subsidiaries (other than the Restricted Group).
“Voting Stock” of any Person means Capital Stock of such Person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such Person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
“Weighted Average Life to Maturity” means, when applied to any Debt or Preferred Stock at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Debt or liquidation preference of such Preferred Stock, as the case may be, into (b) the total of the product obtained by multiplying (x) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal or upon mandatory redemption, including payment at final maturity, in respect thereof, by (y) the
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number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.
“Wholly Owned Subsidiary” means (i) in respect of any Person, a Person, all of the Capital Stock of which (other than (a) directors’ qualifying shares or an immaterial amount of shares required to be owned by other Persons pursuant to applicable law, regulation or to ensure limited liability and (b) in the case of a Receivables Entity, shares held by a Person that is not an Affiliate of any Parent Note Guarantor solely for the purpose of permitting such Person (or such Person’s designee) to vote with respect to customary major events with respect to such Receivables Entity, including without limitation the institution of bankruptcy, insolvency or other similar proceedings, any merger or dissolution, and any change in charter documents or other customary events) is owned by that Person directly or (ii) indirectly by a Person that satisfies the requirements of clause (i).
“Withholding Tax Event” has the meaning set forth in the Credit and Guaranty Agreement.
SECTION 1.2 Construction. For all purposes of this Indenture (and for all purposes of any other Transaction Document or any other instrument or agreement that incorporates provisions of this Indenture by reference), 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 I, and include the plural as well as the singular;
(b) unless otherwise specified, all references in this Indenture (including the appendices and schedules hereto) to designated “Articles”, “Sections” and other subdivisions are to the designated articles, sections and other subdivisions of this Indenture;
(c) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
(d) unless the context clearly indicates otherwise, pronouns having a masculine or feminine gender shall be deemed to include the other;
(e) unless otherwise expressly specified, any agreement, contract or document defined or referred to herein shall mean such agreement, contract or document as in effect as of the date hereof, as the same may thereafter be amended, supplemented or otherwise modified from time to time in accordance with the terms of this Indenture and the other Transaction Documents and shall include any agreement, contract, instrument or document in substitution or replacement of any of the foregoing entered into in accordance with the terms of this Indenture and the other Transaction Documents;
(f) any reference to any Person shall include its permitted successors and assigns in accordance with the terms of this Indenture and the other Transaction Documents
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including, in the case of any Governmental Authority, any Person succeeding to its functions and capacities;
(g) unless the context clearly requires otherwise, references to “Law” or to any particular Law shall include Laws or such particular Law as in effect at each, every and any of the times in question, including any amendments, replacements, supplements, extensions, modifications, consolidations, restatements, revisions or reenactments thereto or thereof, and whether or not in effect at the date of this Indenture;
(h) the use of the word “or” shall not be exclusive; and
(i) “including” means without limitation.
SECTION 1.3 Actions of the Cayman Trustee. The Trust is an equitable obligation binding the Cayman Trustee to deal with the trust property in a particular way in accordance with the terms of the Declaration of Trust. The Noteholders are not, and shall not be, beneficiaries under the Declaration of Trust, and the Cayman Trustee does not owe the Noteholders any fiduciary duties. When used herein, the term “Trust” shall not refer to a separate legal entity but shall, unless the context otherwise requires, refer to the Cayman Trustee acting as trustee of the Trust in accordance with the Declaration of Trust and in relation to the assets forming part of the Trust.
ARTICLE II
THE NOTES
THE NOTES
SECTION 2.1 Designation.
(a) There is hereby created a series of “5.125% Senior Notes due 2032” which shall initially be issued in the aggregate principal amount of U.S.$900,000,000 and which are to be issued pursuant to this Indenture.
(b) The Notes shall be direct, senior, secured and limited recourse Debt of the Issuer and shall at all times rank pari passu, without any preference among themselves and equal in right of payment with all of the Issuer’s other present and future obligations (for the avoidance of doubt, being solely those obligations which are assumed by the Cayman Trustee in its capacity as trustee of the Trust and in relation to the Trust Assets) that are not, by their terms, expressly subordinated in right of payment to the Notes or which rank senior thereto by operation of Law.
SECTION 2.2 Authentication and Delivery of Notes.
(a) Any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Notes executed by the Issuer to the Indenture Trustee for authentication, together with an Issuer Order for the authentication and delivery of such Notes, and the Indenture Trustee shall thereupon authenticate and make available for delivery such Notes in accordance with such Issuer Order, without any further action by the Issuer.
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(b) No Note shall be secured by or entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication, in the form provided for in Section 2.4 hereof, executed by the Indenture Trustee by the manual or electronic signature of any Authorized Signatory, and such certificate upon any Notes shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered thereunder.
(c) The Indenture Trustee shall have the right to decline to authenticate and deliver the Notes under this Section 2.2 if the Indenture Trustee, upon the advice of counsel, determines that such action may not lawfully be taken by the Issuer or the Indenture Trustee or if the Indenture Trustee shall determine in good faith that such action does not comply with the provisions of this Indenture or any document or instrument delivered in connection herewith, or could expose the Indenture Trustee to personal or financial liability. Prior to the authentication and delivery of the Notes, the Indenture Trustee shall also receive such other funds, accounts, documents, certificates, instruments or opinions as may be required thereunder or it may request in order to provide it with assurances that all action necessary in connection therewith has been taken.
(d) Notwithstanding the foregoing, if any Note shall have been authenticated and delivered hereunder but never issued or sold by the Issuer, and the Issuer shall deliver such Note to the Indenture Trustee for cancellation as provided in Section 2.18 together with a written statement (which need not comply with Section 15.2 and need not be accompanied by an Opinion of Counsel) stating that such Note has never been issued or sold by the Issuer, for all purposes of this Indenture such Note shall be deemed never to have been authenticated and delivered hereunder and shall never have been or be entitled to the benefits hereof.
SECTION 2.3 Aggregate Amount; Additional Notes.
(a) The aggregate principal amount of Notes that may be authenticated and delivered under this Indenture is unlimited.
(b) Additional notes of the same series as the Notes (such additional notes being “Additional Notes”) may be issued from time to time under this Indenture so long as, on the date of issuance of such Additional Notes: (i) the requirements of this Section 2.3 have been complied with, (ii) the Lender has made an additional disbursement under the Credit and Guaranty Agreement equal to the aggregate face amount of the Additional Notes to be issued, (iii) the Participation Agreement has been amended to reflect the additional disbursement, (iv) no Default or Loan Event of Default shall have occurred and then be continuing or shall occur as a result of the issuance of such Additional Notes, (v) such Additional Notes shall rank pari passu with the Notes referred to in Section 2.1 and shall have substantially identical terms, conditions and benefits as the Notes (except as otherwise expressly provided in Section 2.3(d)), (vi) the Issuer and the Indenture Trustee shall have executed and delivered a supplemental indenture to this Indenture providing for the issuance of such Additional Notes and reflecting such amendments to this Indenture as may be required to reflect the increase in the aggregate principal amount of the Notes resulting from the issuance of the Additional Notes, (vii) each of the Rating Agencies that has rated the Notes has confirmed to the Issuer in writing (with a copy to the Indenture Trustee), prior to the issuance of such Additional Notes, that the issuance of such
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Additional Notes will not result in a lowering or a withdrawal of the then existing rating of the Outstanding Notes, and (viii) the Indenture Trustee shall have received all such opinions and other documents as it shall have reasonably requested.
(c) All Additional Notes issued hereunder will, when issued, be considered Notes for all purposes hereunder and will be subject to and take benefit of all the terms, conditions and provisions of this Indenture.
(d) The Additional Notes shall have the same terms in all respects as the Notes, except that such Additional Notes may have a different issue price or first payment date, provided, however, that unless such Additional Notes are issued under a separate CUSIP number, such Additional Notes must be fungible with the Notes for U.S. federal income tax purposes. The Notes offered hereby and any Additional Notes shall be treated as a single class for all purposes hereunder and will vote together as one class on all matters with respect to the Notes. For purposes of this Indenture, whether or not expressly stated, reference to the Notes includes Additional Notes except as otherwise indicated.
SECTION 2.4 Form of Indenture Trustee’s Authentication. The Indenture Trustee’s certificate of authentication on all Notes shall be in substantially the following form:
“This Note is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON,
as Indenture Trustee
By:
Authorized Signatory”
SECTION 2.5 Form of the Notes.
(a) Notes offered and sold in reliance on Rule 144A will be initially represented by one or more, permanent Global Notes (in substantially the form of Exhibit A-1) in definitive, fully registered book entry form without interest coupons (collectively, the “Rule 144A Restricted Global Note”) which will be registered in the name of a nominee of the Registered Depositary and deposited on behalf of the purchasers of the Notes represented thereby with the Indenture Trustee, as a custodian for DTC [ADD TO DEFINITIONS] for credit to the respective accounts of such purchasers (or to such other accounts as they may direct) at direct or indirect participants of DTC. The aggregate principal amount of the Rule 144A Restricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Registrar and the Registered Depositary as hereinafter provided.
(b) Notes offered and sold in reliance on Regulation S will be initially represented by one or more permanent Global Notes without interest coupons (in substantially the form of Exhibit A-2) in definitive, fully registered book entry form (collectively, the “Regulation S Unrestricted Global Note”) which will be registered in the name of a nominee of the Registered Depositary and deposited on behalf of the purchasers of the Notes represented
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thereby the Indenture Trustee, as a custodian for DTC for credit to the respective accounts of such purchasers (or to such other accounts as they may direct) at direct or indirect participants of DTC. The aggregate principal amount of the Regulation S Unrestricted Global Note may from time to time be increased or decreased by adjustments made on the records of the Note Registrar and the Registered Depositary as hereinafter provided.
(c) The Notes shall be in registered form and may have such letters, numbers or other marks of identification and such legends or endorsements printed, lithographed, engraved, typewritten or photocopied thereon as may be required to comply with the rules of any securities exchange upon which the Notes are to be listed or to conform to any usage in respect thereof, or as may, consistently herewith, be prescribed by the Board of Directors of the Issuer or by the Authorized Representative executing such Notes, such determination by said Authorized Representative to be evidenced by its signing the Notes.
(d) The Notes may be issued in the form of (a) certificated Notes under the circumstances described in Section 2.13(c) hereto or (b) one or more Global Notes. The Notes shall not be issuable in bearable form. Notes issued in certificated form shall be registered in the name or names of such Persons and for the principal amounts as the Issuer may request. The Issuer has initially appointed the Registered Depository to act as depositary for the Global Notes. Notes issued in the form of a Global Note shall be registered in the name of the Registered Depositary or its nominee. In the event any of the Notes are issued in a transaction under Rule 144A of the Securities Act, any such Person shall purchase such Notes in transactions complying with Rule 144A under the Securities Act. The Indenture Trustee, as custodian (“Custodian”), will act as custodian of each Global Note for the Registered Depositary or appoint a sub custodian to act in such capacity. So long as the Registered Depositary or its nominee is the registered owner of the Global Note, it shall be considered the Noteholder of the Notes represented thereby for all purposes hereunder and under the Global Note. None of the Indenture Trustee, or any Authorized Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Global Note, any agent member or other member of, or a participant in, the Registered Depositary or other Person with respect to the accuracy of the records of the Registered Depositary or any nominee or participant or member thereof, with respect to any ownership interest in the Notes or with respect to the delivery to any agent member or other participant, member, beneficial owner or other Person (other than Registered Depositary) of any notice or the payment of any amount or delivery of any Notes (or other security or property) under or with respect to such Notes. All notices and communications to be given to the Noteholders and all payments to be made to Noteholders in respect of the Notes shall be given or made only to or upon the order of the registered Noteholders (which shall be the Registered Depositary or its nominee in the case of a Global Note). The rights of beneficial owners in any Global Note shall be exercised only through the Registered Depositary, subject to its applicable rules and procedures. The Indenture Trustee, and the Authorized Agents may rely and shall be fully protected in relying upon information furnished by the Registered Depositary with respect to its agent members and other members, participants and any beneficial owners.
(e) Interests in the Global Note shall be transferred on the Registered Depositary’s book entry settlement system.
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(f) At such time as all beneficial interests in a particular Global Note have been exchanged for Notes in certificated form or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, such Global Note shall be returned to or retained and cancelled by the Indenture Trustee in accordance with Section 2.18. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or in the form of Notes in certificated form, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Indenture Trustee or by the Registered Depositary at the direction of the Indenture Trustee to reflect such reduction; and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Indenture Trustee or by the Registered Depositary at the direction of the Indenture Trustee to reflect such increase.
(g) The forms of Notes may have 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, consistent herewith, be applicable thereto or determined by officers of the Issuer executing such Notes, as evidenced by their execution thereof. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereof on the face of the Note. If the Notes conflict or are inconsistent with the provisions of this Indenture, then this Indenture shall control.
(h) At such time as all beneficial interests in a particular Global Note have been exchanged for Notes in certificated form or a particular Global Note has been redeemed, repurchased or cancelled in whole and not in part, such Global Note shall be returned to or retained and cancelled by the Indenture Trustee in accordance with Section 2.18. At any time prior to such cancellation, if any beneficial interest in a Global Note is exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note or in the form of a certificated Note, the principal amount of Notes represented by such Global Note shall be reduced accordingly and an endorsement shall be made on such Global Note by the Indenture Trustee or by the Registered Depositary at the direction of the Indenture Trustee to reflect such reduction and if the beneficial interest is being exchanged for or transferred to a Person who will take delivery thereof in the form of a beneficial interest in another Global Note, such other Global Note shall be increased accordingly and an endorsement shall be made on such Global Note by the Indenture Trustee or by the Registered Depositary at the direction of the Indenture Trustee to reflect such increase.
SECTION 2.6 Limited Recourse; Payments from Trust Assets.
(a) Notwithstanding any other provision of this Indenture, all payments to be made by, and all liabilities of, the Cayman Trustee under this Indenture or any of the documents to which the Cayman Trustee is a party shall be made only from, and shall be limited to, the income and proceeds of the Trust Assets and only to the extent that the Cayman Trustee shall have received income or proceeds from the Trust Assets sufficient to make such payments or satisfy such liabilities in accordance with the terms hereof. No recourse shall be had to the assets
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of the Cayman Trustee which are owned by it beneficially or held by it as trustee for any other trust. The Cayman Trustee shall not sell or otherwise dispose of any of the Trust Assets unless otherwise specifically permitted under this Indenture, and the Cayman Trustee shall not take any actions under the Participation Agreement except as authorized by the Noteholders in accordance with Section 11.6 or Article VII herein. The Cayman Trustee shall not sell or otherwise dispose of the Participation without the consent of all of the Noteholders and payment of all amounts owing to the Indenture Trustee and agents appointed pursuant to this Indenture.
(b) Subject to the rights of the Indenture Trustee and the Authorized Agents under the Expense Reimbursement and Indemnity Agreement, following the application of the income and proceeds of the Trust Assets in accordance with this Indenture, none of the Noteholders, the Indenture Trustee, the Trust, the Cayman Trustee, the Administrative Agent, the Lender or any other party to the Transaction Documents will be entitled to take any action to recover any sums due but remaining unpaid under this Indenture or the Notes and all remaining claims in respect of this Indenture and the Notes will be extinguished.
SECTION 2.7 Maturity of the Notes. The Issuer shall pay the principal amount of the Notes in full in a single payment on February 3, 2032 (the “Maturity Date”) to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV hereof. No payments in respect of the principal of the Notes shall be paid prior to the Maturity Date except upon redemption prior to the Maturity Date pursuant to Article IV hereof.
SECTION 2.8 Interest; Interest Periods. The Notes will accrue interest from and including the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from and including February 3, 2022 (the “Issue Date”) to but excluding the Maturity Date (to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV hereof ) at a rate per annum equal to 5.125% (the “Interest Rate”), payable semi-annually in arrears on February 3 and August 3 of each year, commencing on August 3, 2022 (each an “Interest Payment Date”). The Interest Rate will be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 2.9 Record Date. The Indenture Trustee shall treat the Person in whose name any Note is registered on the applicable Record Date as the Noteholder for all payments of interest with respect to the Notes.
SECTION 2.10 Issuance. No Note may be offered, sold or delivered as part of the distribution by the Initial Purchasers at any time, or otherwise, within the United States or to, or for the benefit of, U.S. Persons except to Persons that are both (i) QIBs and (ii) Qualified Purchasers. The Notes may be sold or resold, as the case may be, outside the United States to Non-U.S. Persons in accordance with Regulation S under the Securities Act. The Notes shall be subject to restrictions on transfer and resale as provided in Section 2.13 hereof.
SECTION 2.11 Denominations, etc. The Notes shall be issued only in fully registered form, without coupons and as otherwise provided herein. Notes sold pursuant to Rule 144A shall be issued in the form of beneficial interests in one or more Global Notes in minimum
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denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. Notes sold pursuant to Regulation S shall be issued in the form of beneficial interests in one or more Global Notes in minimum denominations of $200,000 and integral multiples of U.S.$1,000 in excess thereof. Beneficial interests in any Global Notes shall be shown on, and transfers thereof shall be effected only through, the book-entry records maintained by the Registered Depositary and its participants. Notes issued in physical, certificated form shall not be permitted to be traded through the facilities of the Registered Depositary, except in connection with a transfer of a Note in certificated form to a transferee that takes delivery in the form of beneficial interests in a Global Note pursuant to Rule 144A or Regulation S, as the case may be.
SECTION 2.12 Execution of Notes.
(a) The Notes shall be executed on behalf of the Issuer by one of its Authorized Representatives. The signature of any such Authorized Representatives on the Notes may be manual, facsimile or Electronic Means. Notes bearing the manual, facsimile or Electronic Means signatures of individuals who were, at the time such signatures were affixed, the proper Authorized Representatives of the Issuer shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to be Authorized Representatives prior to the authentication and delivery of such Notes or were not Authorized Representatives at the date of such Notes.
(b) Pending the preparation of certificated Notes as contemplated in Section 2.13, the Issuer may execute, and the Indenture Trustee, upon receipt of an Issuer Order, shall authenticate and deliver, temporary Notes that are printed, lithographed, typewritten, mimeographed or otherwise reproduced, in any authorized denomination, substantially of the tenor of the certificated Notes in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Authorized Representatives executing such Notes may determine, as conclusively evidenced by their execution of such Notes.
(c) Following the issuance of temporary Notes, the Issuer will cause certificated Notes to be prepared without unreasonable delay. The certificated Notes shall be printed, lithographed or engraved, or provided by any combination thereof, or in any other manner permitted by the rules and regulations of any applicable securities exchange, all as determined by the Authorized Representatives executing such certificated Notes. After the preparation of certificated Notes, the temporary Notes shall be exchangeable for certificated Notes upon surrender of the temporary Notes at the office or agency maintained by the Issuer for such purpose pursuant to Section 9.11, without charge to the Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute, and the Indenture Trustee, upon receipt of an Issuer Order, shall authenticate and deliver, in exchange therefor the same aggregate principal amount of certificated Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture as certificated Notes.
SECTION 2.13 Registration; Restrictions on Transfer and Exchange.
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(a) The Issuer shall cause to be kept at the Corporate Trust Office of the Note Registrar a register which, subject to such reasonable regulations as the Issuer may prescribe, shall provide for the registration of Notes and for the registration of transfers and exchanges of Notes. This register and, if there shall be more than one Note Registrar, the combined registers maintained by all such note registrars, are herein sometimes referred to as the “Note Register”. The Indenture Trustee is hereby appointed the initial Note Registrar for the purpose of registering Notes and transfers and exchanges of Notes as herein provided. Upon any resignation or removal of the Note Registrar, the Issuer shall promptly appoint a successor, or in the absence of such appointment, assume the duties of such Note Registrar. The Issuer may appoint one or more co-registrars.
(b) If a Person other than the Indenture Trustee is appointed by the Issuer as Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of a Note Registrar and of the location, and any change in the location of the Note Register, and the Indenture Trustee shall have the right to inspect the Note Register at all reasonable times and to obtain copies thereof, and the Indenture Trustee shall have the right to rely upon such Note Register as to the names and addresses of the Noteholders and the principal amounts and numbers of such Notes.
(c) Any Global Note deposited with the Registered Depositary shall be exchanged for certificated Notes, without coupons, and delivered to and registered in the name of Persons named by the Registered Depositary, rather than to the nominee for the Registered Depositary, only if an Event of Default has occurred and is continuing or if at any time the Registered Depositary ceases to be a clearing agency registered under the Exchange Act, and in either case, a successor depositary is not appointed by the Issuer within 90 calendar days.
(d) Upon the occurrence of any of the events in the paragraph (c) above, the Indenture Trustee shall, by forwarding any notice received from the Issuer to the Registered Depositary, be deemed to have notified all Persons who hold a beneficial interest in the Global Note through participants in the Registered Depositary or indirect participants through participants in the Registered Depositary of the availability of certificated Notes. Any Global Note that is transferable to the beneficial owners thereof pursuant to paragraph (c) above shall be surrendered by the Registered Depositary to the Note Registrar, to be so transferred, in whole or from time to time in part, without charge, and the Indenture Trustee shall, upon provision by the Issuer of certificates therefor and receipt by the Indenture Trustee of an Issuer Order, authenticate and deliver, upon such transfer of each portion of such Global Note, an equal aggregate principal amount of Notes of authorized denominations. Any portion of a Global Note transferred pursuant to paragraph (c) above and this paragraph shall be executed, authenticated and delivered only in the denominations specified in the form of Note and registered in such names as the Registered Depositary shall direct. Any certificated Note delivered in exchange for an interest in the Rule 144A Restricted Global Note shall bear the Restrictive Legend regarding transfer restrictions applicable to the Rule 144A Restricted Global Note set forth on the form of Note attached as Exhibit A-1 hereto. Any certificated Note delivered in exchange for an interest in the Regulation S Unrestricted Global Note shall bear the Restrictive Legend regarding transfer restrictions applicable to the Regulation S Unrestricted Global Note set forth on the form of Note attached as Exhibit A-2 hereto. In the event of the occurrence of any of the events specified in
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Section 2.13(c), the Issuer will promptly make available to the Indenture Trustee a reasonable supply of certificated Notes in certificated, fully registered form without interest coupons.
(e) Notwithstanding any provisions to the contrary herein, so long as any Global Note remains Outstanding and is held by or on behalf of the Registered Depositary, transfers of such Global Note, in whole or in part, shall only be made in accordance with this paragraph and paragraph (d) above.
(i) Subject to this paragraph and paragraph (d) above, transfers of a Global Note shall be limited to transfers of such Global Note in whole, or in part, to nominees of the Registered Depositary or to a successor of the Registered Depositary or such successor’s nominee.
(ii) Transfers of beneficial interests in Global Notes may be effected only through the book-entry system maintained by the Registered Depositary in compliance with applicable rules and procedures of the Registered Depositary and its direct and indirect participants (including Euroclear and Clearstream, if applicable), in each case to the extent applicable to such transaction and in effect from time to time (the “Applicable Procedures”).
(iii) In the event that a Global Note is exchanged for Notes in certificated registered form without interest coupons pursuant to paragraph (d) above, such Notes may be exchanged for one another only in accordance with such procedures as are substantially consistent with the provisions of paragraphs (iv), (v), (vi), (vii) and (viii) below (including the certification requirements) and as may be from time to time adopted by the Issuer and notified, in writing, to the Indenture Trustee.
(iv) If the owner of a beneficial interest in a Rule 144A Restricted Global Note wishes at any time to transfer such interest (or portion thereof) to a Non-U.S. Person pursuant to Regulation S who wishes to hold its interest in the Notes through a beneficial interest in the Regulation S Unrestricted Global Note, such transfer may be effected only (A) upon receipt by the Note Registrar of:
(1) a written order given by the Registered Depositary or its authorized representative directing the Note Registrar to credit or cause to be credited a beneficial interest in the Regulation S Unrestricted Global Note equal to the principal amount of the beneficial interest in the Rule 144A Restricted Global Note to be transferred, and
(2) a certificate in the form of Exhibit C duly executed by the transferor, or his attorney duly authorized in writing,
and (B) subject to the Applicable Procedures, the Note Registrar shall increase the Regulation S Unrestricted Global Note and decrease the Rule 144A Restricted Global Note by such amount in accordance with the foregoing. Any beneficial interest in the Rule 144A Restricted Global Note that is transferred to a Person that takes delivery in the form of a
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beneficial interest in the Regulation S Unrestricted Global Note will, upon transfer, cease to be an interest in the Rule 144A Restricted Global Note and will become an interest in the Regulation S Unrestricted Global Note subject to all transfer restrictions and other procedures applicable to beneficial interests in the Regulation S Global Note.
(v) If the owner of an interest in a Regulation S Unrestricted Global Note wishes at any time to transfer such interest (or any portion thereof) to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Restricted Global Note, such transfer may be effected only (A) upon receipt by the Note Registrar of:
(1) a written order given by the Registered Depositary or its authorized representative directing the Note Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Restricted Global Note equal to the principal amount of the beneficial interest in the Regulation S Unrestricted Global Note to be transferred, and
(2) if such transfer is to occur during (but only during) the Distribution Compliance Period, a certificate in the form of Exhibit D duly executed by the transferor or his attorney duly authorized in writing (accompanied, in the case of a transfer under an exemption from the registration requirements under the Securities Act other than pursuant to Rule 144A or Rule 144 under the Securities Act, by an Opinion of Counsel stating that such exemption is available to the transferor), and
(3) a certificate in the form of Exhibit E executed by the transferee,
and (B) subject to the Applicable Procedures, the Note Registrar shall increase the Rule 144A Restricted Global Note and decrease the Regulation S Unrestricted Global Note by such amount in accordance with the foregoing. Any beneficial interest in the Regulation S Unrestricted Global Note that is transferred to a Person that takes delivery in the form of a beneficial interest in the Rule 144A Restricted Global Note will, upon transfer, cease to be an interest in the Regulation S Unrestricted Global Note and will become an interest in the Rule 144A Restricted Global Note subject to all transfer restrictions and other procedures applicable to beneficial interest in the Rule 144A Restricted Global Note.
(vi) If the Noteholder of a Restricted Note (other than a Global Note) wishes at any time to transfer such Restricted Note (or a portion thereof) to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Restricted Global Note or the Regulation S Unrestricted Global Note, such transfer may be effected only (A) upon receipt by the Note Registrar of:
(1) such Restricted Note, duly endorsed as provided herein,
(2) instructions from such Noteholder directing the Note Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Restricted
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Global Note or Regulation S Unrestricted Global Note equal to the principal amount (or portion thereof) of such certificated Note to be transferred, and
(3) a certificate in the form of Exhibit C duly executed by the Noteholder or his attorney duly authorized in writing if the specified account to be credited with a beneficial interest in the Regulation S Unrestricted Global Note, or certificates in the form of Exhibit D duly executed by the Noteholder or his attorney duly authorized in writing and Exhibit E duly executed by the transferee if the specified account is to be credited with a beneficial interest in the Rule 144A Restricted Global Note,
and (B) subject to the Applicable Procedures of the Registered Depositary, the Note Registrar shall:
(1) cancel the Restricted Note delivered to it (and issue a new Note in respect of any untransferred portion thereof), and
(2) increase the Rule 144A Restricted Global Note or the Regulation S Unrestricted Global Note, as the case may be, in accordance with the foregoing.
(vii) If the Noteholder of a Regulation S Note (other than a Global Note) wishes to transfer such Regulation S Note (or a portion thereof) to a Person who wishes to take delivery thereof in the form of a beneficial interest in the Rule 144A Restricted Global Note or the Regulation S Unrestricted Global Note, such transfer may be effected only, (A) upon receipt by the Note Registrar of:
(1) such Regulation S Note, duly endorsed as provided herein,
(2) instructions from the Noteholder of such certificated Note directing the Note Registrar to credit or cause to be credited a beneficial interest in the Rule 144A Restricted Global Note or the Regulation S Unrestricted Global Note equal to the principal amount of the certificated Note (or portion thereof) to be transferred, and
(3) if the transfer is to occur during (but only during) the Distribution Compliance Period and the specified account is to be credited with a beneficial interest in the Rule 144A Restricted Global Note, certificates in the form of Exhibit D duly executed by the transferor or his attorney duly authorized in writing and Exhibit E duly executed by the transferee, or if the specified account is to be credited with a beneficial interest in the Regulation S Unrestricted Global Note, a certificate in the form of Exhibit C,
and (B) subject to the Applicable Procedures of the Registered Depositary, the Note Registrar shall:
(1) cancel the Regulation S Note delivered to it (and issue a new Note in respect of any untransferred portion thereof) and
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(2) increase the Rule 144A Restricted Global Note or the Regulation S Unrestricted Global Note, as the case may be, for such amount in accordance with the foregoing.
(viii) A beneficial interest in a Rule 144A Restricted Global Note or a Regulation S Unrestricted Global Note may be exchanged for a Note that is not a Global Note as provided in Section 2.13(c) and (d); provided that, if such interest is a beneficial interest in the Rule 144A Restricted Global Note, or if such interest is a beneficial interest in the Regulation S Unrestricted Global Note and such exchange is to occur during the Distribution Compliance Period, then such interest shall be exchanged for a Restricted Note or a Regulation S Note, as the case may be. A Restricted Note or Regulation S Note that is not a Global Note may be exchanged for a beneficial interest in a Global Note only if (A) such exchange occurs in connection with paragraph (e)(vi) or (vii) above or (B) such Note is a Regulation S Note and such exchange occurs after the Distribution Compliance Period.
(f) Upon surrender for registration of transfer of any Note, together with a written instrument of transfer satisfactory to the Note Registrar, as the case may be, at an office or agency of the Issuer appointed in or pursuant to Section 9.11 for such purposes, the Issuer shall execute, and the Indenture Trustee, upon receipt of an Issuer Order, shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Notes of any authorized denomination or denominations and of the same aggregate principal amount. At the option of each Noteholder, Notes may be exchanged for other Notes of any authorized denomination or denominations and of the same aggregate principal amount, upon surrender of the Notes to be exchanged at any such office or agency. Whenever any Notes are so surrendered for exchange, the Issuer shall execute, and the Indenture Trustee, upon receipt of an Issuer Order, shall authenticate and deliver, the Notes that the Noteholder making the exchange is entitled to receive. All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt, and entitled to the same security and benefits under this Indenture and the other Transaction Documents, as the Notes surrendered upon such registration of transfer or exchange.
(g) Every Note presented or surrendered for registration of transfer or exchange shall be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Note Registrar or any Transfer Agent, duly executed by the Noteholder thereof or such Noteholder’s attorney duly authorized in writing.
(h) No service charge shall be required of any Noteholders participating in any transfer or exchange of Notes in respect of such transfer or exchange, but the Note Registrar may require payment of a sum sufficient to cover any Tax that may be imposed in connection with any transfer or exchange of Notes, other than exchanges pursuant to Sections 2.12(c) or 2.13 not involving any transfer.
(i) The Note Registrar shall not be required (x) to issue, register the transfer of or exchange any Note during a period beginning at the opening of business in the City of New York 15 days before the day of the giving of a notice of redemption of Notes selected for
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redemption under Article IV and ending at the close of business on the day of such notice or (y) to issue, register the transfer of or exchange any Note so selected for redemption in whole or in part, except the unredeemed portion of any Note redeemed in part.
(j) If Notes are issued upon the transfer, exchange or replacement of Notes subject to restrictions on transfer and bearing the Restrictive Legends set forth on the forms of Note attached hereto as Exhibit A-1 and Exhibit A-2, setting forth such restrictions, or if a request is made to remove the Restrictive Legend on a Note, the Notes so issued shall bear the Restrictive Legend, or the Restrictive Legend shall not be removed, as the case may be, unless there is delivered to the Issuer and the Note Registrar such evidence as shall be satisfactory to the Issuer, which shall include an Opinion of Counsel, as may be reasonably required by the Issuer, that neither the Restrictive Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144 or Regulation S under the Securities Act or that such Notes are not “restricted securities” within the meaning of Rule 144 under the Securities Act. Upon provision of such satisfactory evidence, the Indenture Trustee, at the direction of the Issuer and upon receipt of an Issuer Order, shall authenticate and deliver a Note that does not bear the Restrictive Legend. If a Restrictive Legend is removed from the face of a Note and the Note is subsequently held by an Affiliate of the Issuer, the Restrictive Legend shall be reinstated.
(k) None of the Indenture Trustee or any Authorized Agent, nor any agent of the Indenture Trustee or any Authorized Agent, shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable Law with respect to any transfer of any interests in any Note (including transfers between or among participants in the Registered Depositary or beneficial owners of interests in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof. None of the Issuer, the Indenture Trustee any Authorized Agent or any of their respective agents, will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Note or maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
(l) (a)If any U.S. Person that is not a QIB and a Qualified Purchaser shall become the owner of a beneficial interest in a Rule 144A Restricted Global Note, or if any U.S. Person shall become the owner of a beneficial interest in a Regulation S Unrestricted Global Note (any such Person, a “Non-Permitted Holder”), the Issuer may, promptly after discovery by the Issuer that such Person is a Non-Permitted Holder, send notice to such Non-Permitted Holder demanding that such Non-Permitted Holder transfer its interest to a Person that is not a Non-Permitted Holder within 30 days of the date of such notice. If such Non-Permitted Holder fails to so sell its interest, the Issuer shall have the right, without further notice to the Non-Permitted Holder, to (i) sell such interest in a commercially reasonable sale to a purchaser selected by the Issuer that is not a Non-Permitted Holder and that certifies to the Issuer that it meets the requirements of this Indenture or (ii) to redeem such interest for an amount equal to the outstanding principal of the Notes plus accrued and unpaid interest.
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(m) The Noteholder of each Note, the Non-Permitted Holder and each other Person in the chain of title from the Noteholder to the Non-Permitted Holder, by their acceptance of an interest in the Notes agree to cooperate with the Issuer to effect such transfers. The proceeds of such sale or redemption, net of any commissions, expenses and taxes due in connection with such sale or redemption, shall be remitted to the Non-Permitted Holder. The terms and conditions of any sale or redemption under this subsection shall be determined in the sole discretion of the Issuer, and the Issuer shall not be liable to any Person having an interest in the Notes sold or redeemed as a result of any such sale or redemption or the exercise of such discretion.
SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated or defaced Note is surrendered to the Indenture Trustee, or the Issuer and the Note Registrar and the Indenture Trustee receive evidence to their satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Issuer, the Note Registrar and the Indenture Trustee evidence to their satisfaction of the ownership and authenticity thereof, and such security and/or indemnity as may be required by them to save each of them harmless, then, in the absence of written notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, the Issuer shall execute and the Indenture Trustee, upon receipt of an Issuer Order, shall authenticate and make available for delivery at an office or agency of the Issuer appointed in or pursuant to Section 8.11 in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a new Note of like tenor, interest rate and principal amount, bearing a number not then Outstanding and registered in the same manner. If, after the delivery of such new Note, a protected purchaser of the original Note in lieu of which such new Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such new Note from the Person to whom it was delivered or any Person taking therefrom, except a protected purchaser, and shall be entitled to recover upon the security and/or indemnity provided therefor to the extent of any loss, damage, cost or expenses incurred by the Issuer or the Indenture Trustee in connection therewith.
(b) Notwithstanding the foregoing, in case any such mutilated, destroyed, lost or stolen Note has become or is about to become due and payable, the Issuer, upon satisfaction of the conditions set forth in clauses (i) and (ii) of paragraph (a) of this Section 2.14 may, instead of issuing a new Note, pay such Note.
(c) Upon the issuance of any new Note under this Section 2.14, the Issuer and the Indenture Trustee may require the payment of a sum sufficient to cover any Tax that may be imposed in relation thereto and any other expenses connected therewith.
(d) Every new Note issued pursuant to this Section 2.14 in lieu of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes duly issued hereunder.
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(e) The provisions of this Section 2.14 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.15 Payments.
(a) Subject to the limitations set forth in Section 2.6 above, the Issuer hereby acknowledges and confirms that it is and at all times shall remain absolutely and unconditionally obligated to pay all amounts due and owing by the Issuer hereunder and under any other Transaction Document, as the same shall become due and owing. All payments of principal, interest and other amounts required to be made by the Issuer hereunder and under the other Transaction Documents shall be made, pursuant to the terms hereof, by the Issuer to the Indenture Trustee promptly upon receipt by the Issuer of any cash proceeds with respect to (i) the Participation, unless any such payment amounts are paid directly to the Indenture Trustee at the direction of the Lender pursuant to the Participation Agreement, and (ii) any Tax Reimbursement Payments pursuant to Section 2 of the Expense Reimbursement and Indemnity Agreement. The Issuer will, on or before 10:00 a.m. at least one Business Day prior to each due date of the principal of, premium (if any) or interest on the Notes or other amounts, deposit with the Indenture Trustee a sum sufficient to pay such principal, interest or other amounts so becoming due. All such payments to the Indenture Trustee shall be made by the Issuer or on behalf of the Issuer by the Lender or the Administrative Agent by depositing immediately available funds in U.S. dollars to the Loan Collection Account provided for herein.
(b) So long as any of the Notes remain Outstanding, the Issuer will maintain one or more agents in New York City to whom (i) the Notes may be presented for payment and the Notes may be presented for exchange, transfer, redemption or registration of transfer as provided in this Indenture. The Issuer may have one or more additional paying agents. Unless otherwise specified, the Issuer hereby initially designates the Corporate Trust Office as the office to be maintained by it for each such purpose and where the Note Register will be maintained. If the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office. Interest on any Note that is payable, and punctually paid or duly provided for, on any Interest Payment Date or any other Payment Date (other than the Maturity Date) shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Record Date for such payment. Payment of interest on the Notes shall be made at the Place of Payment (or, if such office is not in the City of New York, at either such office or an office to be maintained in such city) payable as provided herein. The principal amount of any Note, whether due on the Maturity Date a redemption date or any other Payment Date, will be payable only upon surrender of such Note at the Corporate Trust Office of the Indenture Trustee or at the specified offices of any Paying Agent appointed by the Indenture Trustee; provided, however, that so long as the Notes are held in the name of a nominee of DTC, the Indenture Trustee, or such Paying Agent, will make such payments to DTC or its nominee, as the case may be, in accordance with DTC’s Applicable Procedures.
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(c) Subject to the foregoing provisions of this Section 2.15, each Note delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Note shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Note.
(d) In order to comply with applicable Tax Laws (inclusive of rules, regulations and interpretations promulgated by competent authorities) related to this Indenture and the other Transaction Documents in effect from time to time (“Applicable Law”) that a foreign financial institution, issuer, trustee, paying agent or other party is or has agreed to be subject to, each of the Issuer and the Note Guarantors agrees (i) to provide to the Indenture Trustee and the Paying Agents sufficient information about the Issuer and the Note Guarantors and/or the transactions to which the Transaction Documents relate (including any modification to the terms of such transactions) in each case, which is within each party’s knowledge and control, so the Indenture Trustee and the Paying Agents can determine whether it has tax related obligations under Applicable Law, (ii) that the Indenture Trustee and the Paying Agents shall be entitled to make any withholding or deduction from payments to the extent necessary to comply with Applicable Law for which the Indenture Trustee and the Paying Agents shall not have any liability, and (iii) to hold harmless each of the Indenture Trustee and the Paying Agents for any losses it may suffer due to the actions it takes to comply with Applicable Law. The terms of this Section 2.15(d) shall survive the payment of the Notes, resignation or removal of the Indenture Trustee or any Paying Agent and termination of this Indenture.
SECTION 2.16 Taxation.
(a) Except as compelled by Law, the Issuer shall make any and all payments of principal, premium, interest or any other amounts under this Indenture or in respect of the Notes free and clear of, and without withholding or deduction for or on account of, any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction. If any such Taxes are required to be deducted or withheld:
(i) the Issuer shall notify the Lender and the Indenture Trustee that it is required by law to withhold or deduct such Taxes;
(ii) the Issuer shall make all such withholdings and deductions; and
(iii) the Issuer shall pay the full amount withheld or deducted to the relevant taxation authority in accordance with applicable Law.
(b) The sum payable by the Issuer under this Indenture shall be increased by the sum of (x) the Additional Amounts payable to the Issuer pursuant to the Participation Agreement and the Credit and Guaranty Agreement or the Loan Guarantees, respectively, and (y) the Tax Reimbursement Payments payable to the Issuer by the Borrower or the Note Guarantors pursuant to the Expense Reimbursement and Indemnity Agreement or the Loan Guarantees, respectively, after accounting for any Taxes withheld from such payments to the Issuer or otherwise payable by the Issuer in respect of such payments (“Note Additional Amounts”).
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(c) In addition, if any Other Taxes are imposed in connection with this Indenture, the Notes or any Note Guarantee or from the execution, delivery or registration of, performance under, or otherwise with respect to, this Indenture or the Notes, and the Borrower or Note Guarantor fails to comply with their obligations under the Expense Reimbursement and Indemnity Agreement to pay promptly when due such Other Taxes, then the Issuer shall pay such Other Taxes (except for any taxes to be paid by any Noteholder pursuant to Section 2.13(h) of this Indenture).
(d) All references to principal, interest or other amounts payable under this Indenture shall be deemed to include any Note Additional Amounts payable by the Issuer under this Section 2.16 or otherwise with respect to this Indenture. The foregoing obligations in this Section 2.16 shall survive the payment of the Notes any termination, defeasance or discharge of this Indenture.
(e) At least 10 Business Days prior to the first Interest Payment Date for the Notes, and, if there has been any change with respect to the matters set forth in the below mentioned certificate at least 10 Business Days prior to each Interest Payment Date for the Notes, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate instructing the Indenture Trustee as to any circumstances in which payments of principal of, premium (if any) or interest on the Notes due on such date shall be subject to deduction or withholding for or on account of any Taxes and the rate of any such deduction or withholding. The Issuer covenants to indemnify the Indenture Trustee and any other Paying Agents for, and to hold each harmless against, any loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Issuer under the preceding sentence shall survive the resignation or removal of the Indenture Trustee, the Registrar or any Paying Agent.
(f) The Issuer shall provide the Indenture Trustee with documentation reasonably satisfactory to the Indenture Trustee evidencing the payment of Taxes in respect of which the Issuer, the Borrower or any Note Guarantor has paid any Note Additional Amounts. Copies of such documentation shall be, made available by the Indenture Trustee to the Noteholders or the other Paying Agents, as applicable, upon written request therefor.
(g) By their purchase of Notes, each Noteholder or beneficial owner of Notes agrees to provide the Issuer with such forms or other documentation as the Issuer may from time to time require to assist it in fulfilling its withholding and backup withholding tax obligations.
SECTION 2.17 Persons Deemed Owners; Etc. Subject to the rights of the relevant Noteholders as of any Record Date to receive payments of interest on the related Interest Payment Date, prior to due presentment of a Note for registration of transfer, the Person in whose name any Note is registered shall be deemed to be the owner of such Note for the purpose of receiving payment of principal of, premium (if any) and interest on such Note and for all other purposes whatsoever, whether or not such Note be overdue, regardless of any notice to anyone to the contrary. The Noteholder may grant proxies and otherwise authorize any Person, including
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members of, or participants in, the Registered Depositary and Persons that may hold interests through such members of, or participants in, the Registered Depositary, to take any action that a Noteholder is entitled to take under this Indenture or the Notes.
SECTION 2.18 Cancellation. All Notes surrendered for payment, redemption, registration of transfer or exchange or deemed lost or stolen shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee for cancellation and may not be reissued or sold. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder which the Issuer may have acquired in any manner whatsoever. All Notes so delivered shall be promptly cancelled by the Indenture Trustee at the written direction of the Issuer. No Notes shall be authenticated in lieu of or in exchange for any Notes cancelled as provided in this Section, except as expressly permitted by this Indenture. All cancelled Notes held by the Indenture Trustee shall be cancelled by the Indenture Trustee in accordance with its standard retention policy, unless the Issuer shall direct by an Issuer Order that they be returned to it.
SECTION 2.19 Allocation of Payments.
(a) On each Payment Date, the Indenture Trustee or the Paying Agents shall withdraw all amounts then credited to the Loan Collection Account and apply such amounts in the following order of priority:
(i) FIRST, to the Lender, the Administrative Agent, the Indenture Trustee and any Authorized Agents appointed pursuant to this Indenture in an amount equal to any due but unpaid amounts owing by the Borrower and the Note Guarantors under the Credit and Guaranty Agreement and the Expense Reimbursement and Indemnity Agreement in respect of fees and expenses to the extent the Borrower or the Note Guarantors have not theretofore paid the same; and
(ii) SECOND, the remainder to the Payment Account;
provided, however, that the Indenture Trustee shall only be required to make the payments described in clause (a)(i) above to the Lender, the Administrative Agent, the Indenture Trustee and/or any Authorized Agent only if and to the extent it receives written notice of such amounts and payment instructions from the Lender, the Administrative Agent or such Authorized Agent, as applicable, no later than five (5) Business Days preceding the relevant Payment Date.
(b) On each Payment Date, the Indenture Trustee or the Paying Agents shall distribute the funds deposited into the Payment Account in accordance with Section 2.19(a) above in the following order of priority, with the amount of each such distribution (and the components thereof) as set forth in this Indenture and the Notes:
(i) FIRST, to each Noteholder, its proportionate share of the accumulated and unpaid Note Interest then due and payable in respect of the Notes held by such Noteholder; and
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(ii) SECOND, to each Noteholder, its proportionate interest in the principal amount of the Notes then due and payable in respect of the Notes held by such Noteholder.
(c) Each Noteholder agrees, by its acceptance of a Note, that it will promptly remit to the Indenture Trustee any excess payment it receives on the Notes.
SECTION 2.20 CUSIP and ISIN Numbers. The Issuer in issuing the Notes may use CUSIP and ISIN numbers, and, if so, the Indenture Trustee shall use CUSIP and ISIN numbers in notices of redemption as a convenience to Noteholders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the Notes, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly, and in any event within 10 Business Days, notify the Indenture Trustee of any initial CUSIP and/or ISIN numbers and any change in the CUSIP or ISIN numbers.
SECTION 2.21 Noteholder Lists. The Indenture Trustee shall preserve in as current form as is reasonably practicable the most recent list available to it of the names and addresses of Noteholders. If the Indenture Trustee is not the Note Registrar, the Issuer shall furnish to the Indenture Trustee, in writing at least seven Business Days before each Interest Payment Date and at such other times as the Indenture Trustee may request in writing, a list in such form and as of such date as the Indenture Trustee may reasonably require of the names and addresses of the Noteholders.
ARTICLE III
ESTABLISHMENT OF ACCOUNTS
ESTABLISHMENT OF ACCOUNTS
SECTION 3.1 Establishment and Administration of Loan Collection Account.
(a) On or prior to the Issue Date, the Trust shall establish and, until the Notes and all amounts due in respect thereof and otherwise payable pursuant to this Indenture have been paid in full and so long as the Indenture Trustee has a security interest in the Collateral, maintain a special purpose non-interest bearing account (the “Loan Collection Account”). The Issuer agrees that the Loan Collection Account shall be maintained in the name of the Trust and under its sole dominion and control (acting on behalf of the Indenture Trustee, the Authorized Agents, and the Noteholders). No funds contained in the Loan Collection Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Issuer or any other Person have any right of withdrawal or any other interest therein, except for any residual rights to the amounts on deposit in the Loan Collection Account that the Issuer may have under applicable Law.
(b) The Issuer shall promptly deposit, or cause to be deposited in the Loan Collection Account all amounts received by the Issuer from the Lender or the Administrative Agent on behalf of the Lender with respect to or as contemplated under the Participation Agreement and any Transaction Document, including all periodic principal, interest and other
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payments received by the Issuer in respect of the Participation representing funds received in respect of the principal, interest and other payments payable by the Borrower and the Note Guarantors under the Credit and Guaranty Agreement. No funds contained in the Loan Collection Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Issuer or any other Person have an interest therein or amounts on deposit therein.
(c) The Indenture Trustee shall possess all right, title and interest in all available funds on deposit from time to time in the Loan Collection Account and in all proceeds thereof (including all income thereon) pursuant to the security interest granted to it under the terms hereof, and such funds (except funds payable to the Lender, the Administrative Agent, the Indenture Trustee or any Authorized Agent pursuant to the Expense Reimbursement and Indemnity Agreement) shall constitute part of the Trust Assets.
SECTION 3.2 Establishment and Administration of the Payment Account.
(a) On or prior to the Issue Date, the Issuer directs the Indenture Trustee to establish and, until the Notes and all accounts due in respect thereof have been paid in full, maintain a special purpose non-interest bearing amounts (the “Payment Account”) into which all payments required to be made by the Issuer under or with respect to the Notes shall be deposited. The Issuer agrees that the Payment Account shall be maintained in the name of the Issuer and under its sole dominion and control (acting on behalf of the Indenture Trustee, the Authorized Agents, and the Noteholders) and used solely to make payments of principal, interest and other amounts from time to time due and owing on, or with respect to, the Notes. No funds contained in the Payment Account shall be used for any other purpose or in any manner not expressly provided for herein nor shall the Issuer or any other Person have an interest therein or amounts on deposit therein.
(b) The Indenture Trustee shall apply all such amounts as from time to time are on deposit in the Payment Account to all such amounts as are due to the Noteholders pursuant to this Indenture or otherwise. All such amounts shall be applied ratably, without preference or priority of any kind among Noteholders, in accordance with this Indenture.
SECTION 3.3 Applicable Taxes.
The Issuer shall pay or reimburse the Indenture Trustee upon request for any transfer taxes or other taxes relating to the funds held in the accounts incurred in connection herewith and shall indemnify and hold harmless the Indenture Trustee any amounts that it is obligated to pay in the way of such taxes. Any payments of income from the accounts shall be subject to withholding regulations then in force with respect to United States taxes. The Issuer will provide the Indenture Trustee with appropriate W-9 forms for tax identification number certifications, or W-8 forms for nonresident alien certifications. It is understood that the Indenture Trustee shall only be responsible for income reporting with respect to income earned on the accounts and will not be responsible for any other reporting. This paragraph shall survive notwithstanding any termination of this Indenture or the resignation or removal of the Indenture Trustee.
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ARTICLE IV
REDEMPTION; OFFER TO PURCHASE
REDEMPTION; OFFER TO PURCHASE
SECTION 4.1 Redemption Events.
(a) The Issuer shall redeem the Notes, in whole or in part, as applicable, upon the deposit by the Lender, or otherwise as provided in the Credit and Guaranty Agreement or Participation Agreement, in the Loan Collection Account of any Prepayment Amount upon the occurrence of any optional or mandatory prepayment by the Borrower of the amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of any of the following:
(i) any optional prepayment of the Loan, in whole or in part, with a make-whole premium in accordance with Section 3.03(b) of the Credit and Guaranty Agreement,
(ii) any optional prepayment of the Loan, in whole or in part, without a make-whole premium in accordance with Section 3.03(c) of the Credit and Guaranty Agreement,
(iii) any optional prepayment upon certain tender offers, in whole or in part, in accordance with Section 3.03(d) of the Credit and Guaranty Agreement,
(iv) any optional prepayment of the Loan, in whole but not in part, upon a Withholding Tax Event in accordance with Section 3.03(e) of the Credit and Guaranty Agreement,
(v) any optional prepayment of the Loan, in whole but not in part, upon the occurrence of a Change of Control Remainder Event in accordance with Section 3.03(f) of the Credit and Guaranty Agreement,
(vi) a Change of Control Prepayment Event in accordance with Section 3.04(a) of the Credit and Guaranty Agreement,
(vii) an Asset Sale Prepayment Event in accordance with Section 3.04(b) of the Credit and Guaranty Agreement, or
(viii) upon the acceleration of the Loan as a result of the occurrence of a Loan Event of Default (an “Acceleration Redemption Event”)
(each of clauses (i) through (v), an “Optional Redemption Event” and, together with the redemption events described in clauses (vi), (vii) and (viii), the “Note Redemption Events”).
(b) Upon notice to the Issuer from the Administrative Agent, the Borrower or the Lender of any event constituting a Note Redemption Event, the Issuer will deliver a copy of the notice to the Indenture Trustee and promptly (and in no event later than 10 days and not more than 60 days prior to the relevant redemption date) give (or the Indenture Trustee, in the name of
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and at the expense of the Issuer, upon the Issuer providing written instruction to the Indenture Trustee setting forth the information to be contained in the notice of redemption at least 3 Business Days before the notice is to be given to Noteholders (or such shorter time as is acceptable to the Indenture Trustee) shall give) notice of redemption as described in Section 15.4 to each Noteholder (with a copy to the Indenture Trustee unless the Indenture Trustee sends the notice) at a price equal to the Prepayment Amount upon substantially identical terms as and pursuant to the Borrower’s notice of redemption or prepayment. Each notice of redemption shall state:
(i) the redemption date;
(ii) the reason for the redemption;
(iii) the redemption price and the amount of any accrued interest payable as provided in Section 4.1(d);
(iv) whether or not all Outstanding Notes are being redeemed;
(v) if the Issuer is not redeeming all Outstanding Notes, the aggregate principal amount of Notes that the Issuer is redeeming and the aggregate principal amount of Notes that shall be Outstanding after the partial redemption, as well as the identification of the particular Notes, or portions of the particular Notes, that the Issuer is redeeming;
(vi) if the Issuer is redeeming only part of a Note, the notice that relates to that Note shall state that on and after the redemption date, upon surrender of that Note, the Holder shall receive, without charge, a new Note or Notes of authorized denominations for the principal amount of the Note remaining unredeemed in the case of a certificated Note, otherwise in accordance with the Registered Depositary’s applicable procedures;
(vii) that on the redemption date the redemption price and any accrued interest payable to the redemption date as provided in Section 4.1(d) shall become due and payable in respect of each Note, or the portion of each Note, to be redeemed, and, unless the Issuer defaults in making the redemption payment, that interest on each Note, or the portion of each Note, to be redeemed, shall cease to accrue on and after the redemption date;
(viii) the place or places where a Noteholder must surrender the Noteholder’s Notes for payment of the redemption price;
(ix) the CUSIP or ISIN number, if any, listed in the notice or printed on the Notes, and that no representation is made as to the accuracy or correctness of such CUSIP or ISIN number;
(x) the applicable record date; and
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(xi) any condition precedent to which the redemption or the repayment may be conditioned.
(c) Pursuant to the Credit and Guaranty Agreement, the Borrower may make the repayment or notice of Optional Redemption subject to the satisfaction of conditions precedent. If such repayment or notice of Optional Redemption is subject to satisfaction of one or more conditions precedent, such notice shall state that, in the Borrower’s discretion, the repayment or redemption date may be delayed until such time (but no more than 60 days after the date of the notice of redemption) as any or all such conditions shall be satisfied, or such repayment or redemption may not occur and such notice may be rescinded in the event that any or all such conditions shall not have been satisfied by the repayment or redemption date, or by the repayment or redemption date so delayed. In addition, the Borrower may provide in such notice that payment of the repayment or redemption price and performance of the Borrower’s obligations with respect to such repayment or redemption may be performed by another Person.
Notwithstanding anything herein to the contrary, notice to Noteholders from the Issuer of any Optional Redemption Event may be subject to one or more conditions precedent set forth in the notice of the Optional Redemption Event from the Borrower to the Lender in accordance with the terms of the Credit and Guaranty Agreement.
(d) Upon (i) the occurrence of a Note Redemption Event and payment by the Borrower to the Lender or the Administrative Agent on behalf of the Lender of the applicable Prepayment Amount with respect to a Note Redemption Event, as provided for in the Credit and Guaranty Agreement and (ii) payment by the Lender or the Administrative Agent on behalf of the Lender of the Prepayment Amount so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, the Issuer shall pay on the applicable redemption date the redemption price for the Notes together with accrued and unpaid interest thereon to but not including the date of redemption solely out of the Prepayment Amount received from the Borrower with respect to such redemption.
(e) If fewer than all of the Notes are being redeemed, the Notes to be redeemed shall be selected, in the case of certificated Notes, by lot or by such other method as the Indenture Trustee will deem to be fair and appropriate, and in the case of global notes, in accordance with DTC’s applicable policies and procedures (in integral multiples of US$1,000; provided that the remaining principal amount of any Noteholder’s Note will not be less than US$200,000). Upon surrender of any Note redeemed in part, the Noteholder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note (or appropriate adjustments will be made to the amount of such global note in accordance with the Registered Depository’s policies and procedures).
(f) Notes called for redemption become due and payable at the redemption price on the redemption date. On and after the applicable redemption date, interest will cease to accrue on the Notes as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price together with accrued and unpaid interest thereon
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pursuant to this Indenture. Upon redemption of the Notes by the Issuer, the redeemed Notes will be cancelled and cannot be reissued.
(g) Notwithstanding anything herein to the contrary, the obligation of the Issuer to so redeem the Notes shall be limited in extent to funds in respect of the Prepayment Amount actually received in the Loan Collection Account by the Issuer from the Lender under the Participation Agreement following receipt of the same from the Borrower or any Note Guarantor. Following any Note Redemption Event pursuant to this Section 4.1, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes redeemed, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to any such Note Redemption Event.
SECTION 4.2 Repurchase of Notes Tendered upon a Change of Control Event.
(a) Upon the occurrence of a Change of Control Prepayment Event, the Borrower shall provide a Change of Control Notice to the Lender and the Administrative Agent and make a Change of Control Offer in accordance with the terms of the Credit and Guaranty Agreement. Pursuant to Section 3.04 of the Credit and Guaranty Agreement, the Borrower will be required, if requested by the Lender, to purchase all or a portion of the Loan in the principal amount as shall be requested by the Lender, at a prepayment price equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the prepayment date and any Additional Amounts thereon (the “Change of Control Payment”).
(b) The Borrower will provide a Change of Control Notice to the Issuer on the same date it provides such notice to the Lender and the Administrative Agent under the Credit and Guaranty Agreement. Upon the Issuer’s receipt from the Lender or the Borrower of a Change of Control Notice in accordance with the Credit and Guaranty Agreement, the Issuer will deliver a copy of the notice to the Indenture Trustee and promptly (and in no event later than 30 days prior to the Change of Control Payment Date) give (or the Indenture Trustee, in the name of and at the expense of the Issuer, upon the Issuer providing written instruction to the Indenture Trustee containing all of the relevant information to be included in the notice at least 3 Business Days before the notice is to be given to Noteholders (or such shorter time as is acceptable to the Indenture Trustee) shall give) notice as described in Section 15.4 to each Noteholder (with a copy to the Indenture Trustee unless the Indenture Trustee sends the notice) offering to purchase (subject to the receipt by the Issuer from the Lender of Change of Control Payment) the Notes on the Change of Control Payment Date at a price equal to the Change of Control Payment upon substantially identical terms as and pursuant to the Borrower’s Change of Control Offer (the “Notes Change of Control Offer”). In addition to the information contained in the Borrower’s Change of Control Notice, the notice of the Notes Change of Control Offer will include instructions and materials necessary to enable Noteholders to tender Notes pursuant to the offer. The Change of Control Payment Date shall be no earlier than 30 days nor later than 60 days subsequent to the date on which the notice of the Notes Change of Control Offer is delivered to Noteholders (other than as may be required by applicable Law) and will be the same herein and under the Credit and Guaranty Agreement.
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(c) Upon a Notes Change of Control Offer, each Noteholder will have the right to require that the Issuer purchase (subject to the receipt by the Issuer from the Lender of the Change of Control Payment) all or a portion of such Noteholder’s Notes in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Notes will not be less than US$200,000. Tender of any Notes to be purchased in connection with the Notes Change of Control Offer must be received by the Issuer no later than five Business Days preceding the Change of Control Payment Date and may also be withdrawn until the same.
(d) The Issuer shall provide prompt notice (and in any event no later than four Business Days prior to the Change of Control Payment Date) to the Administrative Agent and the Lender of the aggregate principal amount of Notes validly tendered and not validly withdrawn, and upon notice from the Lender setting forth the aggregate principal amount of the Loan corresponding to the principal amount of the Notes validly tendered and not validly withdrawn, the Borrower will be required to prepay the Loan in the amount of the Change of Control Payment, pursuant to the Credit and Guaranty Agreement.
(e) No later than three Business Days prior to the Change of Control Payment Date, the Issuer will deliver to the Indenture Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof to be purchased by the Issuer.
(f) Upon payment by the Lender of the amounts so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, and on the Change of Control Payment Date, the Issuer shall, to the extent lawful, accept for payment all Notes or portions thereof validly tendered and not validly withdrawn, make payment or cause payment to be made for such Notes or portions thereof accepted for payment and deliver or cause to be delivered to the Indenture Trustee the Notes so accepted, and the Issuer shall instruct the Indenture Trustee, in writing, to cancel such Notes in accordance with its applicable procedures. Notwithstanding anything herein to the contrary, the obligation of the Issuer to so repurchase the Notes shall be limited in extent to funds in respect of the amount actually received by the Issuer. Following any Change of Control Payment pursuant to this Section 4.2, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes repurchased, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to such repurchase.
(g) The Issuer will not be required to make a Notes Change of Control Offer if a third party makes a Notes Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements, set forth in this Indenture, that are applicable to a Notes Change of Control Offer made by the Issuer and such third party purchases all Notes properly tendered and not withdrawn under the Notes Change of Control Offer.
(h) The Borrower and the Issuer will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations to the extent any such rule, laws and regulations are applicable in connection with the prepayment of all or any part of the Loan and the purchase of all or part of the Notes in connection with a Notes Change
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of Control Offer, as applicable. To the extent that the provisions of any applicable securities laws or regulations conflict with the Change of Control provisions of the Credit and Guaranty Agreement or this Indenture, the Borrower and the Issuer will comply with such securities laws and regulations and will not be deemed to have breached the obligations under the Credit and Guaranty Agreement or this Indenture by doing so.
SECTION 4.3 Repurchase of Notes Tendered upon an Asset Sale Offer.
The Notes shall be subject to redemption upon the occurrence of any prepayment by the Borrower of amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of an Asset Sale Prepayment Event as further described under Section 7.7 herein.
ARTICLE V
COLLATERAL
COLLATERAL
SECTION 5.1 Pledge of Interest in Trust Assets.
(a) The Issuer hereby (i) pledges, assigns and grants to the Indenture Trustee a first priority perfected security interest in the Trust Assets and all proceeds of any of the foregoing (collectively, the “Collateral”) and (ii) represents and warrants that the Issuer is the owner of the Trust Assets free and clear of all Liens (except as provided herein) with the power to charge both the legal and beneficial interests therein and the Trust (including the Cayman Trustee) has not made any other representation or warranty in respect of the transactions contemplated under this Indenture and the Transaction Documents other than as set forth hereunder and thereunder.
(b) The Collateral secures the payment by the Issuer of the Notes and all of its obligations now or hereafter existing under this Indenture and thereunder, whether direct or indirect, absolute or contingent, and whether for principal, reimbursement obligations, interests, fees, premiums, penalties, indemnifications, contract paragraphs of action, costs, expenses or otherwise (the “Obligations”). Without limiting the generality of the foregoing, the Collateral secures the payment of all amounts which constitute part of the Obligations and would be owed by the Issuer to the Indenture Trustee under this Indenture and the Notes, but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Issuer.
(c) To give effect to the foregoing, all certificates or instruments, if any, representing or evidencing the Collateral (other than the Promissory Note) shall be delivered to and held by or on behalf of the Indenture Trustee pursuant hereto and shall be in suitable form for transfer by delivery, or shall be accompanied by duly executed instruments of transfer or assignment in blank. The Indenture Trustee shall have the right (but shall not be obligated), at any time (acting at the written direction of Required Holders) and without notice to the Issuer, to transfer to or to register in the name of the Indenture Trustee or any of its nominees any or all of the Collateral. In addition, the Indenture Trustee shall have the right at any time to exchange
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certificates or instruments, if any, representing or evidencing Collateral for certificates or instruments of smaller or larger denominations.
(d) The Issuer hereby appoints the Indenture Trustee as the Issuer’s attorney in fact, with full authority in the place and stead of the Issuer and in the name of the Issuer or otherwise, from time to time to take any action and to execute any instrument necessary or advisable to accomplish the purposes set forth herein, including, without limitation, to receive, indorse and collect all instruments made payable to the Issuer representing any interest payment, dividend or other distribution in respect of the Collateral or any part thereof and to give full discharge for the same.
(e) If the Issuer fails to perform any agreement contained herein, the Indenture Trustee may itself (but shall not be obligated to) perform, or cause performance of, such agreement, and the expenses of the Indenture Trustee incurred in connection therewith shall be payable by the Issuer.
(f) The powers conferred on the Indenture Trustee hereunder are solely to protect the Indenture Trustee’s interest in the Collateral and shall not impose any duty upon the Indenture Trustee to exercise any such powers. Except for the safe custody of any Collateral in its possession and the accounting for moneys actually received by it hereunder, the Indenture Trustee shall have no duty as to any Collateral, as to ascertaining or taking action with respect to calls, conversions, exchanges, maturities, tenders or other matters relative to any Collateral, whether or not the Indenture Trustee has or is deemed to have knowledge of such matters, or as to the taking of any necessary steps to preserve rights against any parties or any other rights pertaining to any Collateral.
(g) A continuing security interest in the Collateral shall (i) be created and shall remain in full force and effect until the payment in full of the Obligations and all other amounts payable hereunder and under the Notes, in accordance with Section 13.1, (ii) be binding upon the Issuer, its successors and assigns, and (iii) inure to the benefit of, and be enforceable by, the Indenture Trustee and its successors, transferees and assigns. Upon the payment in full of the Obligations and all other amounts payable hereunder and thereunder, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to the Issuer. Upon any such termination, the Indenture Trustee will, at the Issuer’s written request and expense, return to the Issuer, in accordance with the amount of Collateral contributed by the Issuer, such of the Collateral as shall not have been sold or otherwise applied pursuant to the terms hereof and execute and deliver to the Issuer such documents as the Issuer shall reasonably request to evidence such termination (in form and substance satisfactory to the Indenture Trustee).
(h) The Issuer hereby agrees to file a Financing Statement that names the Issuer as debtor and the Indenture Trustee as secured party and that describes “all assets now owned or hereafter acquired” as the Trust Assets in which the Indenture Trustee has a security interest. For the avoidance of doubt, nothing herein shall require the Indenture Trustee to file Financing Statements or continuation statements, or be responsible for maintaining the security interests purported to be created as described herein (except for the safe custody of any
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Collateral in its possession and the accounting for moneys actually received by it hereunder or under any other Transaction Document) and such responsibility shall be solely that of the Issuer.
(i) The Indenture Trustee shall not be responsible for and makes no representation as to the existence, genuineness, value or protection of any Collateral, for the legality, effectiveness or sufficiency of any security document, or for the validity, creation, perfection, priority, sufficiency or protection of any Liens securing the Notes, for the validity of the title of any grantor to the Collateral, for insuring the Collateral or for the payment of taxes, charges, assessments or liens upon the Collateral.
(j) Beyond the exercise of reasonable care in the custody of the Collateral in its possession, the Indenture Trustee will have no duty as to any Collateral in its possession or control or in the possession or control of any agent or bailee or any income thereon or as to preservation of rights against prior parties or any other rights pertaining thereto. The Indenture Trustee will be deemed to have exercised reasonable care in the custody of the Collateral in its possession if the Collateral is accorded treatment substantially equal to that which it accords its own property, and the Indenture Trustee will not be liable or responsible for any loss or diminution in the value of any of the Collateral by reason of the act or omission of any carrier, forwarding agency or other agent or bailee selected by the Indenture Trustee in good faith.
(k) In the event that the Indenture Trustee is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any fiduciary or trust obligation for the benefit of another, which in the Indenture Trustee’s sole discretion may cause the Indenture Trustee, as applicable, to be considered an “owner or operator” under any environmental laws or otherwise cause the Indenture Trustee to incur, or be exposed to, any environmental liability or any liability under any other federal, state or local law, the Indenture Trustee reserves the right, instead of taking such action, either to resign as Indenture Trustee or to arrange for the transfer of the title or control of the asset to a court appointed receiver. The Indenture Trustee will not be liable to any person for any environmental claims or any environmental liabilities or contribution actions under any federal, state or local law, rule or regulation by reason of the Indenture Trustee’s actions and conduct as authorized, empowered and directed hereunder or relating to any kind of discharge or release or threatened discharge or release of any hazardous materials into the environment.
(l) The Cayman Trustee shall register the security interest granted under this Indenture in its register of mortgages and charges.
(m) Notwithstanding anything herein or in any other Transaction Document to the contrary, the Indenture Trustee shall not be required to initiate or conduct any litigation, collection or enforcement proceedings with respect to the Collateral or otherwise take any action under any Transaction Document outside of the United States.
ARTICLE VI
COVENANTS OF THE ISSUER
COVENANTS OF THE ISSUER
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For so long as the Notes remain Outstanding and the Trust has obligations under this Indenture, the Issuer will comply with the terms and covenants set forth below.
SECTION 6.1 Payment Obligations under the Notes and the Indenture. The Trust shall duly and punctually pay all amounts owed by it, and comply with all its other obligations, under the terms of the Notes and the Indenture, to the extent of availability of the amount in the Trust Assets.
SECTION 6.2 Performance obligations under Transaction Documents. The Trust agrees to duly and punctually perform, comply with and observe all obligations and agreements to be performed by it set forth in this Indenture, the Notes, the Participation Agreement, the Expense Reimbursement and Indemnity Agreement, the Declaration of Trust and the DTC letter of representations.
SECTION 6.3 Maintenance of Approvals. The Trust shall duly obtain and maintain in full force and effect all governmental approvals, consents or licenses of any Governmental Authority under the laws of the Cayman Islands or any other jurisdiction having jurisdiction over it, its business or the transactions contemplated herein, as well as of any third party under any agreement to which the Trust may be subject, in connection with its execution, delivery and performance of the Transaction Documents, to which it is a party (including, without limitation, any authorization required to obtain and transfer U.S. dollars or any other currency which at that time is legal tender in the United States out of the Cayman Islands in connection with the Notes, the Indenture, the Participation Agreement, the Expense and Reimbursement Agreement and the Declaration of Trust) or validity or enforceability thereof.
SECTION 6.4 Maintenance of Books and Records. The Trust shall maintain books, accounts and records as may be necessary to comply with all applicable laws and to enable its financial statements to be prepared, if any, and it will allow the Indenture Trustee, by prior written request, access to copies of those books, accounts and records at reasonable times.
SECTION 6.5 Maintenance of Office or Agency. The Trust shall maintain an agent in New York County, where notices to and demands upon the Trust in respect of the Indenture and the Notes may be served. Initially this office will be at the offices of CT Corp., and the Trust agrees not to change the designation of such office without prior written notice to the Indenture Trustee and designation of a replacement office in the same general location.
SECTION 6.6 Maintenance of Existence. The Cayman Trustee shall maintain in effect the existence of the Trust and all registrations necessary therefor and take all actions to maintain all rights, privileges, titles to property, franchises and the like necessary or desirable in the normal conduct of its business, activities or operations; provided, however, that this covenant shall not require the Cayman Trustee to maintain any such right, privilege, title to property, franchise or the like of the Trust, if the failure to do so does not, and will not, have a material adverse effect on the Trust or have a Material Adverse Effect on the rights of the Indenture Trustee or the Noteholders.
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SECTION 6.7 Consolidations, Merger, Conveyance or Transfer. The Cayman Trustee shall not establish or acquire any subsidiaries as part of the Trust Assets or in one or a series of transactions, consolidate, amalgamate or merge the Trust into any other trust or convey, lease or transfer either all or substantially all of the Trust Assets to any other person or permit any person to merge with or into it other than an affiliate, or acquire the Trust Assets.
SECTION 6.8 Negative Pledge. The Trust shall not grant any lien, pledge, charge, security interest or encumbrance of any kind or nature on any of the Trust Assets except as described under this Indenture.
SECTION 6.9 Compliance with Laws. The Trust shall comply at all times with all applicable laws, rules, regulations, orders and directives of any government or government agency or authority having jurisdiction over the Trust, the Trust’s business or any of the transactions contemplated herein, except where the failure by the Trust to comply would not have a Material Adverse Effect on the Trust or have a material adverse effect on the rights of the Lender, the Indenture Trustee or the Noteholders.
SECTION 6.10 Limitation on Nature of Business. The Trust is not permitted to engage in any lines of business with respect to the Trust and having reference to the Trust Assets other than (i) holding the Participation and issuing the Notes and other matters described in the Offering Memorandum under the heading “The Trust—Purpose and Powers” and (ii) those matters that are reasonably related and ancillary to the ownership of, and enforcement of the Trust’s rights with respect to, the same.
SECTION 6.11 Payment of Taxes and Other Claims. (a) Subject to reimbursement by the Borrower and the Loan Guarantors under the Expense Reimbursement and Indemnity Agreement, the Trust shall pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all taxes, assessments and governmental charges levied or imposed upon the Trust provided, however, that the Trust shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith and, if appropriate, by appropriate legal proceedings or where the failure to do so would not have a material adverse effect on the Trust or have a material adverse effect on the rights of the Noteholders.
(b) The Issuer will comply with all applicable withholding Tax requirements (including, without limitation, any United States backup withholding requirements). The Issuer will file (or cause to be filed) any required withholding Tax forms with all applicable Tax authorities and, unless an exception from withholding and backup withholding tax is properly established by a Noteholder, will remit amounts withheld, if any, with respect to the Noteholders to the applicable Tax authorities.
SECTION 6.12 Ranking. The Trust shall ensure that the Notes constitute general senior, unsubordinated obligations of the Trust and rank pari passu, without any preferences among themselves, with all other present and future obligations of the Trust (other than obligations preferred by statute or by operation of law).
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SECTION 6.13 Limitations on Sale and Lease-back Transactions. The Trust shall not issue, assume or guarantee any obligation or Debt of kind or nature whatsoever, except for the issuance of the Notes (including any Additional Notes).
SECTION 6.14 Limitation on Indebtedness. The Trust shall not enter into any Sale and Leaseback Transaction with respect to any of the Trust Assets.
SECTION 6.15 No Liquidation or Termination without Consent. To the extent applicable, the Cayman Trustee shall not terminate or commence a voluntary case or other proceeding seeking, liquidation, provisional liquidation, reorganization or other relief with respect to itself or its debts under any bankruptcy, insolvency or other similar law now or hereafter in effect, or seek the appointment of a trustee, receiver, liquidator, provisional liquidator, custodian or other similar official of it or any substantial part of its property, or consent to any such relief or to the appointment of or taking possession by any such official in an involuntary case or other proceeding commenced against it, or make a general assignment or conveyance for the benefit of creditors, or take any corporate action to authorize any of the foregoing without the unanimous consent of the Noteholders of the Outstanding Notes. Insofar as the Trust operates through the Cayman Trustee, the Cayman Trustee will agree to refrain from taking any of the foregoing actions unless and until a successor trustee has assumed the obligations of the Cayman Trustee with respect to the Trust, including any obligations under the Transaction Documents.
SECTION 6.16 Appointment to Fill a Vacancy in Office of Indenture Trustee. Promptly, and in any event, within ten (10) calendar days after an officer of the Trust, acting on behalf of the Trust, becomes aware of a Default or Event of Default under the Credit and Guaranty Agreement, the Trust shall furnish written notice of the same to a Responsible Officer of the Indenture Trustee, specifically stating the event or condition that caused the Default or Event of Default, specifically stating that such event or condition has occurred and describing it and any action being or proposed to be taken by the Borrower with respect thereto. Upon receipt of such notice from the Trust, the Indenture Trustee will promptly give such notice to the Noteholders.
SECTION 6.17 Provision of Financial Statements and Reports. (a) For as long as the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, the Trust shall, to the extent required, furnish to any Noteholders holding an interest in a Restricted Global Note, or to any prospective purchaser designated by such Noteholders, upon request of such Noteholders, financial and other information described in paragraph (d)(4) of Rule 144A with respect to the Trust to the extent required in order to permit such Noteholders to comply with Rule 144A with respect to any resale of its Notes, unless during that time, the Trust is subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, or is exempt from reporting pursuant to Rule 12g3-2(b) under the Exchange Act and no such information about the Trust is otherwise required pursuant to Rule 144A.
(b) In the event the Trust shall be required under the law of the Cayman Islands to prepare any financial statements or reports or shall publish or otherwise make such
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statements or reports publicly available, the Trust shall promptly furnish a copy of such statements or reports to the Indenture Trustee for delivery to the Noteholders.
Delivery of such reports, information and documents to the Indenture Trustee (and any reports or information pursuant to Section 7.11) is for informational purposes only and the Indenture Trustee’s receipt of such shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Trust’s or any other Person’s compliance with any of its covenants under the Indenture or any other Transaction Document (as to which the Indenture Trustee is entitled to rely exclusively on Officer’s Certificates).
SECTION 6.18 Economic Sanctions. (a) The Issuer covenants and represents that neither it nor any of its subsidiaries, directors or officers nor, to the knowledge of the Issuer, its affiliates, are currently the target or subject of any sanctions enforced by the US Government, (including, without limitation, the Office of Foreign Assets Control of the US Department of the Treasury or the US Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively “Sanctions”);
(b) The Issuer covenants and represents that neither it nor any of its affiliates, subsidiaries, directors or officers will directly or indirectly use any payments made pursuant to this agreement, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, (ii) to fund or facilitate any activities of or business with any country or territory that is the target or subject of Sanctions, or (iii) in any other manner that will result in a violation of Sanctions by any person.
ARTICLE VII
COVENANTS OF THE PARENT NOTE GUARANTORS
COVENANTS OF THE PARENT NOTE GUARANTORS
SECTION 7.1 Limitation on Debt.
(a) The Parent Note Guarantors may not, and may not permit any of the Restricted Subsidiaries to, Incur any Debt, unless the Leverage Ratio for the most recently completed fiscal quarter for which financial statements are available would be less than 4.0 to 1.
(b) Notwithstanding the foregoing limitation, the following Debt (“Permitted Debt”) may be Incurred:
(i) any direct or indirect obligations owed in connection with the payment obligations on the Loan, Loan Guarantees, and the Note Guarantees, excluding any Loan Guarantees of additional amounts issued under the Credit and Guaranty Agreement or Note Guarantees of Additional Notes;
(ii) Debt (other than Debt described in another clause of this paragraph) outstanding, committed or mandated on the date hereof;
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(iii) Pari Passu Debt of the Note Guarantors and Debt of the Restricted Subsidiaries under Credit Facilities and any Permitted Refinancing Debt in respect thereof, in an aggregate principal amount at any one time outstanding that does not exceed an amount equal to the greater of (a) US$150,000,000 (or the U.S. Dollar Equivalent of any other currency) and (b) 8.0% of Combined Total Assets, plus, (1) any accrual or accretion of interest that increases the principal amount of Debt under Credit Facilities and (2) in the case of any refinancing of Debt permitted under this clause (iii) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing;
(iv) Debt owed by any of the Note Guarantors to any other of the Note Guarantors or any of the Restricted Subsidiaries or Debt owed by any of the Restricted Subsidiaries to any of the Note Guarantors or any other of the Restricted Subsidiaries; provided, however, that upon either (1) the transfer or other disposition by such Note Guarantor or such Restricted Subsidiary of any Debt so permitted to a Person other than a Note Guarantor or a Restricted Subsidiary or (2) such Restricted Subsidiary ceasing to be a Restricted Subsidiary, the provisions of this clause (iv) shall no longer be applicable to such Debt and such Debt shall be deemed to have been Incurred at the time of such transfer or other disposition;
(v) Acquired Debt;
(vi) [Reserved];
(vii) Permitted Refinancing Debt of any Note Guarantor or Restricted Subsidiary Incurred in exchange for or the proceeds of which are used to refinance or refund or replace, or any extension or renewal of (including, in each case, successive refinancings, extensions and renewals), outstanding Debt of any such Note Guarantor or any such Restricted Subsidiary (including, in each case, successive refinancings, extensions and renewals), incurred pursuant to the first paragraph of Section 7.1(a) and paragraphs (i), (ii), (v) or this (vii) of the definition of Permitted Debt, as the case may be;
(viii) Debt of any Note Guarantor or any Restricted Subsidiary represented by letters of credit in order to provide security for workers’ compensation claims, health, disability or other employee benefits, payment obligations in connection with self-insurance or similar requirements of the Note Guarantors or any Restricted Subsidiary in the ordinary course of business;
(ix) customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any assets of any Note Guarantor or any Restricted Subsidiary, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than Guarantees of Debt
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incurred by any Person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such Incurrence of such Debt will at no time exceed the gross proceeds actually received by a Note Guarantor or Restricted Subsidiary in connection with the related disposition;
(x) obligations in respect of (a) bid proposals or applications for telecommunications spectrum licenses, telecommunications usufruct rights or other licenses, in the ordinary course of business and not related to Debt for borrowed money and (b) customs, VAT or other tax guarantees, (c) bid, performance, completion, guarantee, surety and similar bonds, including guarantees or obligations of any Note Guarantor or any Restricted Subsidiary with respect to letters of credit supporting such obligations and (d) the financing of insurance premiums, in each case, in the ordinary course of business and not related to Debt for borrowed money;
(xi) Debt of any Note Guarantor or any Restricted Subsidiary arising from the honoring by a bank or other financial institution of a check, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; provided that such Debt is extinguished within five Business Days of Incurrence;
(xii) guarantees by any Note Guarantor or any Restricted Subsidiary of Debt or any other obligation or liability of any Note Guarantor or any Restricted Subsidiary (other than of any Debt Incurred in violation of this covenant); provided, however, that if the Debt being guaranteed is subordinated in right of payment to the Note Guarantees or the Loan, then such guarantee shall be subordinated substantially to the same extent as the relevant Debt guaranteed;
(xiii) Debt arising under borrowing facilities provided by a special purpose vehicle notes issuer to any Note Guarantor or any Restricted Subsidiary in connection with the issuance of notes or other similar debt securities intended to be supported primarily by the payment obligations of any Note Guarantor or any Restricted Subsidiary in connection with any vendor financing platform;
(xiv) Debt consisting of Interest Rate, Currency or Commodity Price Agreements;
(xv) Debt consisting of (a) mortgage financings, asset backed financings, Purchase Money Obligations or other financings, Incurred for the purpose of financing all or any part of the purchase price or cost of design, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of any Note Guarantor or any Restricted Subsidiary or (b) Debt
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otherwise Incurred to finance the purchase, lease, rental or cost of design, development, construction, installation or improvement (including, without limitation, in respect of tenant improvement) of property (real or personal), plant, equipment or other assets (including, without limitation, network assets) used or useful in the business of any Note Guarantor or any Restricted Subsidiary, whether through the direct purchase of assets or the Capital Stock of any Person owning such assets, and any Permitted Refinancing Debt in respect thereof, in an aggregate outstanding principal amount which, when taken together with the principal amount of all other Debt Incurred pursuant to this clause (15) will not exceed the greater of (a) US$40,000,000 and (B) 2.0% of the Combined Total Assets at any time outstanding;
(xvi) Shareholder Loans or Intergroup Subordinated Loans;
(xvii) Debt not otherwise permitted to be Incurred pursuant to clauses (i) through (xvi) above, which, together with any other outstanding Debt Incurred pursuant to this clause (vii), including any Permitted Refinancing Debt in respect thereof, has an aggregate principal amount at any time outstanding not in excess of the greater of US$150,000,000 and 8.0% of the Combined Total Assets, plus, in the case of any refinancing of Debt permitted under this clause (xvii) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses Incurred in connection with such refinancing.
The Note Guarantors will not incur any Debt (including Permitted Debt) that is contractually subordinated in right of payment to any other Debt of the Note Guarantors unless such Debt is also contractually subordinated in right of payment to the Loan and the Note Guarantees on substantially identical terms; provided, however, that no Debt will be deemed to be contractually subordinated in right of payment to any other Debt of any Note Guarantor solely by virtue of being unsecured or by virtue of being secured with different collateral or by virtue of being secured on a junior priority basis or by virtue of the application of waterfall or other payment ordering provisions affecting different tranches of Debt.
(c) For the purposes of determining compliance with this covenant, in the event that an item of Debt meets the criteria of more than one of the types of Permitted Debt or is entitled to be Incurred pursuant to Section 7.1(a) above, the Note Guarantors in their sole discretion may classify and from time to time reclassify such item of Debt or any portion thereof and only be required to include the amount of such Debt as one of such types.
(d) For the purposes of determining compliance with any covenant in this Indenture or whether an Event of Default has occurred, in each case, where Debt is denominated in a currency other than U.S. dollars, the amount of such Debt will be the U.S. Dollar Equivalent determined on the date of such Incurrence; provided, however, that if any such Debt that is denominated in a different currency is subject to an Interest Rate, Currency or Commodity Price Agreement with respect to U.S. dollars covering principal and premium, if any, payable on such
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Debt, the amount of such Debt expressed in U.S. dollars will be adjusted to take into account the effect of such an agreement.
SECTION 7.2 Limitation on Restricted Payments.
(a) The Parent Note Guarantors may not, and may not permit the Restricted Subsidiaries to, directly or indirectly,
(i) declare or pay any dividend or make any distribution in respect of the Parent Note Guarantors’ or the Restricted Subsidiaries’ Capital Stock, excluding (a) any dividends or distributions by the Parent Note Guarantors or the Restricted Subsidiaries payable solely in shares of such Parent Note Guarantor’s or the Restricted Subsidiaries’ Capital Stock (other than Redeemable Stock) or in options, warrants or other rights to acquire the Parent Note Guarantor’s Capital Stock (other than Redeemable Stock) and (b) any dividends or distributions payable to the Parent Note Guarantors or any of their Restricted Subsidiaries (and, if such Restricted Subsidiary has shareholders other than the Parent Note Guarantors or any Subsidiary of the Parent Note Guarantors, to its other shareholders on a pro rata basis (or on less than a pro rata basis to such shareholders));
(ii) purchase, redeem, or otherwise acquire or retire for value (a) any of a Parent Note Guarantor’s or Restricted Subsidiary’s Capital Stock or (b) any options, warrants or other rights to acquire shares of a Parent Note Guarantor’s or Restricted Subsidiary’s Capital Stock (in respect of (a) and (b) above, in each case, other than (x) from a Parent Note Guarantor or any Restricted Subsidiaries and (y) any such acquisition of the shares or rights to acquire shares of a Restricted Subsidiary by a Parent Note Guarantor or another Restricted Subsidiary);
(iii) redeem, repurchase, defease or otherwise acquire or retire for value prior to any scheduled maturity, repayment or sinking fund payment the Parent Note Guarantor’s Debt which is subordinate in right of payment to the Notes (other than any direct or indirect obligations by the Parent Note Guarantors for the sole purpose of effectuating payments on the Notes); or
(iv) make any Investment, other than Permitted Investments
(each of clauses (i) through (iv) being a “Restricted Payment”).
(b) If:
(1) a Default or an Event of Default shall have occurred and is continuing or would result from such Restricted Payment; or
(2) after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal
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quarter period, the Parent Note Guarantors could not Incur at least US$1.00 of additional Debt pursuant to Section 7.1(a) herein; or
(3) upon giving effect to such Restricted Payment, the aggregate of all Restricted Payments from the date of the Indenture, excluding those made pursuant to the further provisos (A) to (N) below, exceeds the sum of
(i) the difference of (x) 100% of cumulative Combined EBITDA from January 1, 2021 through the last day of the last full fiscal quarter ended immediately prior to the date of such Restricted Payment for which the Parent Note Guarantors’ quarterly or annual financial statements are available minus (y) the product of 1.5 times cumulative Combined Interest Expense from January 1, 2021 through the last day of the last full fiscal quarter ended immediately prior to such Restricted Payment for which the Parent Note Guarantors’ quarterly or annual fiscal statements are available; plus
(ii) the net reduction in the Parent Note Guarantors’ Investments in any Unrestricted Subsidiary resulting from payments of interest on Debt, dividends, return of capital, repayments of loans or advances, payments of fees or other transfers of assets, in each case to the Parent Note Guarantors or the Restricted Subsidiaries from such Unrestricted Subsidiary (except to the extent that any such payment is included in the calculation of Combined EBITDA) or from re-designations of Unrestricted Subsidiaries as Restricted Subsidiaries; provided that the amount included in clause (ii) shall not exceed the amount of Investments previously made by the Parent Note Guarantors and the Restricted Subsidiaries in such Unrestricted Subsidiary; plus
(iii) the cash return, after the Issue Date, on any other Investment made after the Issue Date pursuant to this paragraph, as a result of any sale for cash, repayment, redemption, liquidating distribution or other cash realization (not included in Combined EBITDA), not to exceed the amount of such Investment so made; plus
(iv) an amount not to exceed the sum of the aggregate net proceeds received by the Parent Note Guarantors after the Issue Date, including the fair market value of property other than cash (determined in good faith by the Parent Note Guarantor’s Board of Directors as evidenced by a Board Resolution filed with the Indenture Trustee), from contributions of capital or the issuance and sale (other than to any of the Parent Note Guarantors or Restricted Subsidiaries) of the Parent Note Guarantor’s Capital Stock (other than Redeemable Stock or Excluded Contributions), options, warrants or other rights to acquire any Parent Note Guarantor’s Capital Stock (other than Redeemable Stock) or any Parent Note Guarantor’s Debt or Debt of the Restricted Subsidiaries that
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has been converted into or exchanged for such Parent Note Guarantor’s Capital Stock (other than Redeemable Stock and other than by or from any of the Parent Note Guarantors’ Restricted Subsidiaries) after the Issue Date provided that any such net proceeds received by any Parent Note Guarantors from an employee stock ownership plan financed by loans from any Parent Note Guarantor or any of its respective Subsidiaries shall be included only to the extent such loans have been repaid with cash on or prior to the date of determination; minus
(v) any Note Guarantor or their respective Subsidiaries’ deposits are withdrawn and acquired by the depositary institution (and not returned to the Note Guarantors or one of their Subsidiaries) as the result of any netting or set-off arrangement entered into by the Note Guarantors or any of their Subsidiaries (except to the extent such deposits are used to satisfy obligations solely of the Note Guarantors or their Subsidiaries).
(c) Notwithstanding the foregoing,
(A) the Parent Note Guarantors may pay any dividend on Capital Stock of any class within 60 days after the declaration thereof if, on the date when the dividend was declared, the Parent Note Guarantors could have paid such dividend in accordance with the foregoing provision;
(B) any of the Note Guarantors and any of the Restricted Subsidiaries may refinance any Debt otherwise as permitted by Section 7.1(b) of this Indenture or in exchange for or out of the net proceeds of the sale (other than from or to any of the Note Guarantors or Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from any of the Note Guarantors or any of the Restricted Subsidiaries) of shares of any of the Note Guarantors’ Capital Stock (other than Redeemable Stock) or the subordinated obligations of any Note Guarantor or any Restricted Subsidiary to be Incurred pursuant to this definition of Permitted Debt, provided however, that such exchange or repurchase must be made within 90 days of the issuance of Capital Stock or such subordinated obligations;
(C) any of the Note Guarantors and any of the Restricted Subsidiaries may purchase, redeem, acquire or retire any shares of its Capital Stock solely in exchange for or out of the net proceeds of (i) the substantially concurrent sale (other than from or to any of the Note Guarantors or Restricted Subsidiaries or from or to an employee stock ownership plan financed by loans from any of the Note Guarantors or any of the Restricted Subsidiaries) of shares of any of the Note Guarantors’ Capital Stock (other than Redeemable Stock) (ii) an Asset Disposition to the extent of Excess Proceeds of an Asset Disposition or (iii) a Sale/Leaseback of Tower Equipment that would have been an Asset Disposition but for the proviso in clause (a) of the Asset Disposition definition, provided that the Parent Note Guarantors make an offer to purchase Outstanding Notes prior to
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reliance on this provision at 100% of their principal amount plus accrued interest to the date of purchase and then to the extent of such Excess Proceeds of an Asset Disposition;
(D) the Note Guarantors and any of the Restricted Subsidiaries may make loans to employees in connection with such employees’ exercise of options to purchase Capital Stock or otherwise in the ordinary course of business;
(E) the Note Guarantors and any of the Restricted Subsidiaries may make payments that are made with Excluded Contributions;
(F) the making or facilitation of a loan to the holders of Capital Stock of the Borrower or other Parent Note Guarantors, in each case from the proceeds of the incurrence of the Loan as described under “Use of Proceeds” in the Offering Memorandum; provided such loan is made or facilitated to such holders of Capital Stock within 45 days of the Issue Date; and (ii) if such loan is repaid in whole or in part, from time to time, the subsequent declaration and payment of a dividend or other distribution in respect of the Capital Stock of the Borrower or other Parent Note Guarantors in an amount equal to the principal amount of the loan that has been so repaid; and
(G) the Note Guarantors and the Restricted Subsidiaries may repurchase or fund the repurchase of shares of such Note Guarantor or Millicom held by employees or former employees of such Note Guarantor or any Restricted Subsidiary in an amount not to exceed $5,000,000 in any twelve month period;
(H) the Note Guarantors and any of the Restricted Subsidiaries may cause a distribution of shares of any Unrestricted Subsidiary;
(I) the Note Guarantors or any Restricted Subsidiary may pay a Dividend on Capital Stock of any class with the proceeds of any public Equity Offering or any public sale of Qualified Capital Stock of such Note Guarantor or Restricted Subsidiary in an amount not to exceed 6% of the Market Capitalization of the Borrower at the time of such public Equity Offering or public sale of Qualified Capital Stock if after giving pro forma effect to such Restricted Payment as if such Restricted Payment had been made at the beginning of the applicable fiscal quarter period the Note Guarantor could Incur at least $1.00 of additional Debt pursuant to the first paragraph of Section 7.1;
(J) the Note Guarantors and any Restricted Subsidiary may make Restricted Payments, including the purchase of Receivables and the payment of fees, in connection with any Qualified Receivables Transaction;
(K) the Note Guarantors and any Restricted Subsidiary may engage in cash management and pooling transactions with Millicom and its Subsidiaries in the ordinary course of business;
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(L) the Note Guarantors and any Restricted Subsidiary may make or repay Intergroup Subordinated Loans so long as no Default or Event of Default shall have occurred and be continuing or would result from such Restricted Payment;
(M) the Note Guarantors and any Restricted Subsidiary may make Restricted Payments to Millicom or any Subsidiary thereof so long as the proceeds thereof are transferred to such Note Guarantors or any Restricted Subsidiary within three days of the making of such Restricted Payment and do not exceed 10.0% of Combined Total Assets; and
(N) the Note Guarantors and any of the Restricted Subsidiaries may make Restricted Payments not otherwise permitted hereby in an aggregate amount not to exceed the greater of US$100,000,000 and 6.0% of Combined Total Assets.
(d) Any Restricted Payments made pursuant to clauses (A), (D) or (I) of Section 7.2(c) shall be a Restricted Payment for purposes of calculating the aggregate Restricted Payments pursuant to clause (c)(3) above.
SECTION 7.3 Limitation on Dividend and Other Payment Restrictions Affecting the Parent Note Guarantors and Restricted Subsidiaries.
(a) The Parent Note Guarantors may not, and may not permit any of the Restricted Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to exist or become effective any encumbrance or restriction on the ability of any such Parent Note Guarantor or Restricted Subsidiary
(i) to pay dividends (in cash or otherwise) or make any other distributions in respect of its Capital Stock to the Parent Note Guarantors or any other Restricted Subsidiary or pay any Debt or other obligation owed to the Parent Note Guarantors or any other such Restricted Subsidiary;
(ii) to make loans or advances to the Parent Note Guarantors or any other Restricted Subsidiary; or
(iii) to transfer any of its property or assets to the Parent Note Guarantors or any other Restricted Subsidiary.
(b) Notwithstanding the foregoing, the Parent Note Guarantors may, and may permit any of the Restricted Subsidiaries to, suffer to exist any such encumbrance or restriction
(1) Pursuant to the Credit and Guaranty Agreement, this Indenture and the Note Guarantees;
(2) pursuant to any agreement in effect on the date of this Indenture;
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(3) pursuant to an agreement relating to any Debt Incurred by a Person prior to the date on which such Person became such a Restricted Subsidiary and outstanding on such date and not Incurred in anticipation of becoming such a Restricted Subsidiary which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person so acquired;
(4) pursuant to an agreement by which the Parent Note Guarantors or a Restricted Subsidiary obtains financing; provided that (x) such restriction is not materially more restrictive than customary provisions in comparable financing agreements and (y) the Parent Note Guarantors’ management determines that at the time such agreement is entered into such restriction will not materially impair the Parent Note Guarantors’ ability to make payments on the Loan and the Notes;
(5) pursuant to an agreement effecting a renewal, refunding or extension of Debt Incurred pursuant to an agreement referred to in clause (1), (2), (3) or (4) above; provided, however, that the provisions contained in such renewal, refunding or extension agreement relating to such encumbrance or restriction are no more restrictive in any material respect than the provisions contained in the agreement the subject thereof, as determined in good faith by the Parent Note Guarantors’ management;
(6) in the case of clause (iii) above, restrictions contained in any security agreement (including a capital lease) securing Debt of any of the Parent Note Guarantors or the Parent Note Guarantors’ Restricted Subsidiaries otherwise permitted under the Indenture, but only to the extent such restrictions restrict the transfer of the property subject to such security agreement;
(7) in the case of clause (iii) above, customary nonassignment provisions entered into in the ordinary course of business in leases to the extent such provisions restrict the transfer or subletting of any such lease;
(8) pursuant to customary restrictions contained in asset sale agreements limiting the transfer of property subject to such agreements pending the closing of such sales or pursuant to customary restrictions in share purchase agreements otherwise permitted under the Indenture for the sale of Subsidiaries on such sold Subsidiaries;
(9) customary restrictions pursuant to joint venture agreements or similar documents that restrict the transfer of ownership interests in or the payment of dividends or distributions from such joint venture or similar Person or agreements entered into in the ordinary course of business; provided further that the Parent Note Guarantor’s respective Board of Directors determines that, at the time such encumbrance or restriction arises or is agreed to, it will not materially impair such Parent Note Guarantor’s ability to make payments on the Notes; or
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(10) if such encumbrance or restriction is the result of applicable law or regulation.
SECTION 7.4 [Reserved].
SECTION 7.5 Limitation on Liens.
The Parent Note Guarantors shall not, and shall not permit the Restricted Subsidiaries to, Incur or suffer to exist any Lien (other than Permitted Liens) on or with respect to any property or assets now owned or hereafter acquired to secure any Debt unless the Loan, the Loan Guarantees and the Note Guarantees are equally and ratably secured by such Lien; provided that, if the Debt secured by such Lien is subordinate or junior in right of payment to the Loan, the Loan Guarantees and the Note Guarantees, then the Lien securing such Debt shall be subordinate or junior in priority to the Lien securing the Loan, the Loan Guarantees and the Note Guarantees.
SECTION 7.6 Limitation on Guarantees of the Note Guarantors’ Subordinated Debt.
The Parent Note Guarantors may not permit any of the Restricted Subsidiaries, directly or indirectly, to assume, Guarantee or in any other manner become liable with respect to any of the Note Guarantors’ Debt that is expressly by its terms subordinated or junior in right of payment to any other Debt of a Note Guarantor.
SECTION 7.7 Limitation on Asset Dispositions.
(a) Each of the Parent Note Guarantors may not, and may not permit the Restricted Subsidiaries to, make any Asset Disposition in one or more related transactions unless:
(1) such Parent Note Guarantor or Restricted Subsidiary, as the case may be, receives consideration for such disposition at least equal to the fair market value for the assets sold or disposed of as determined by the Parent Note Guarantor’s senior management or Board of Directors in good faith;
(2) unless the Asset Disposition is a Permitted Asset Swap, at least 75% of the consideration for such disposition consists of (a) cash or Cash Equivalents, (b) the assumption of such Parent Note Guarantor’s or Restricted Subsidiary’s Debt or other liabilities (including Debt or liabilities that are subordinated to the Loan or the Notes) or Debt or other liabilities of such Restricted Subsidiary relating to such assets and, in each case, such Parent Note Guarantor or the Restricted Subsidiary, as applicable, is released from all liability on the Debt assumed or (c) any Capital Stock or assets of the kind referred to in Section 7.7(a)(3)(i)(D) or 7.7(a)(3)(i)(E), or any combination thereof; and
(3) within 365 days of such Asset Disposition, at the Parent Note Guarantors’ or applicable Restricted Subsidiary’s option:
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(i) the Net Available Proceeds are applied:
(A) to repay, redeem, retire or cancel outstanding Senior Secured Debt;
(B) first, if the Borrower makes an Asset Sale Offer, to the Lender pursuant to the terms of the Credit and Guaranty Agreement as set forth in the Credit and Guaranty Agreement, and, second, to the extent any Net Available Proceeds from such Asset Disposition remain, to any other use as determined by the applicable Parent Note Guarantor or the applicable Restricted Subsidiary that is not otherwise prohibited by this Indenture;
(C) to repurchase, prepay, redeem or repay Pari Passu Debt; provided that, concurrently with such repayment, the Borrower makes an Asset Sale Offer to the Lender pursuant to the terms of Section 3.04(b) of the Credit and Guaranty Agreement;
(D) to acquire all or substantially all of the assets of, or any Capital Stock of, another Related Business, if, after giving effect to any such acquisition of Capital Stock, the Related Business is or becomes a Restricted Subsidiary of the Parent Note Guarantors;
(E) to make a capital expenditure or acquire other assets (other than Capital Stock and cash or Cash Equivalents), rights (contractual or otherwise) and properties, whether tangible or intangible (including ownership interests) that are used or intended for use in connection with a Related Business;
(F) to the extent permitted, to redeem Notes as provided under clauses (i) through (v) of Section 4.1(a); or
(G) any combination of the foregoing subclauses (A) through (F) of this Section 7.7(a)(3)(i).
(ii) the relevant Parent Note Guarantor enters into a binding commitment to apply the Net Available Proceeds pursuant to subclauses (D) or (E) of Section 7.7(a)(3)(i); provided that such binding commitment (or any subsequent binding commitment replacing the initial binding commitment that is entered into within 180 days following the aforementioned 365-day period) shall be treated as a permitted application of the Net Available Proceeds from the date of such commitment until the earlier of (x) the date on which such acquisition or expenditure is consummated and (y) the 180th day following the expiration of the aforementioned 365-day period.
(b) The amount of such Net Available Proceeds not so used as set forth in the paragraph above constitutes “Excess Proceeds.” Pending the final application of any such Net Available Proceeds, the Parent Note Guarantors may temporarily reduce revolving credit borrowings or otherwise use such Net Available Proceeds in any manner that is not prohibited by the terms of this Indenture. For purposes of this Section 7.7, any securities, notes or other
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obligations received by such Parent Note Guarantor or any such Restricted Subsidiary from such transferee that are promptly converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion), shall be deemed cash.
(c) Notwithstanding the foregoing, the Borrower will not be required to make an Asset Sale Offer to repay the Loan pursuant to the requirements described above if the funds available for such use in respect of Asset Dispositions in the same fiscal year, together with the funds available for such use in respect of all prior Asset Dispositions, which were not so used pursuant to the provisions described in Section 7.7(a)(3) are less than US$30,000,000.
(d) Pursuant to the terms of the Credit and Guaranty Agreement, upon the determination of the Borrower to make an offer to the Lender to prepay all or a portion of the principal amount of the Credit and Guaranty Agreement, the Borrower shall provide an Asset Sale Notice and make an offer to prepay the Loan in a principal amount up to the Asset Sale Prepayment Amount (the “Asset Sale Offer”), pursuant to which the Borrower shall be required, if requested by the Lender (for the avoidance of doubt, as instructed by the Issuer, who shall be instructed by the Indenture Trustee at the written instruction of the Required Holders), to purchase up to the Asset Sale Prepayment Amount in principal amount of the Loan at a prepayment price equal to 100% of the principal amount of the Loan being prepaid, plus accrued and unpaid interest thereon, if any, to but excluding the prepayment date and any Additional Amounts thereon.
(e) Upon the Issuer’s receipt from the Lender or the Borrower of an Asset Sale Notice in accordance with the Credit and Guaranty Agreement, the Issuer shall give a copy of the notice to the Indenture Trustee and promptly (and in no event later than 30 days prior to the Asset Sale Payment Date) give (or the Indenture Trustee, in the name of and at the expense of the Issuer, upon the Issuer providing written instruction to the Indenture Trustee at least 3 Business Days before the notice is to be given to the Noteholders (or such shorter time as is acceptable to the Indenture Trustee) shall give) notice as described in Section 15.4 to each Noteholder (with a copy to the Indenture Trustee unless the Indenture Trustee gives the notice) offering to purchase the Notes pursuant to the Borrower’s Asset Sale Offer (the “Notes Asset Sale Offer”). In addition to the information contained in the Borrower’s Asset Sale Notice, the Notes Asset Sale Offer will include instructions and materials necessary to enable Noteholders to tender Notes pursuant to the offer.
(f) The Asset Sale Payment Date shall be a Business Day no earlier than 30 days nor later than 60 days subsequent to the date on which the Notes Asset Sale Offer is delivered to Noteholders (other than as may be required by applicable Law).
(g) Upon a Notes Asset Sale Offer, each Noteholder will have the option to tender to the Issuer all or a portion of the Noteholder’s Notes in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Note will not be less than US$200,000. Tender of any Notes to be purchased in connection with the Notes Asset Sale Offer must be received by the Trust no later than five Business Days preceding the Asset Sale Payment Date and may also be withdrawn until the same.
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(h) The Issuer shall provide prompt notice to the Administrative Agent and the Lender of the aggregate principal amount of Notes validly tendered, and upon notice from the Lender setting forth the aggregate principal amount of the Loan corresponding to the principal amount of the Notes validly tendered, the Borrower will be required to prepay such aggregate principal amount of the Loan, plus accrued and unpaid interest to but excluding the prepayment date and any Additional Amounts in an amount up to the Asset Sale Prepayment Amount.
(i) To the extent that Noteholders and holders of other Debt, if any, which are the subject of an Asset Sale Offer properly tender and do not withdraw Notes or the other Debt in an aggregate amount exceeding the amount of Excess Proceeds, the Borrower will purchase a principal amount of the Loan (and the Issuer, therefore, will purchase a principal amount of the Notes) and the Borrower will purchase such other Debt on a pro rata basis (based on amounts tendered). If only a portion of a Note is purchased pursuant to an Asset Sale Offer, a new Note in a principal amount equal to the portion thereof not purchased will be issued in the name of the Noteholder thereof upon cancellation of the original Note (or appropriate adjustments to the amount and beneficial interests in a Global Note will be made, as appropriate). Notes (or portions thereof) purchased pursuant to a Notes Asset Sale Offer will be cancelled and cannot be reissued. No later than three Business Days prior to the Asset Sale Payment Date, the Issuer shall deliver to the Indenture Trustee an Officer’s Certificate stating the aggregate principal amount of Notes or portions thereof to be purchased by the Issuer.
(j) On the Asset Sale Payment Date, the Issuer will, to the extent lawful, accept for payment all Notes or portions thereof properly tendered and accepted pursuant to this Section 7.7(i) and not withdrawn and deliver or cause to be delivered to the Indenture Trustee the Notes so accepted. No later than three Business Days prior to the Asset Sale Payment Date, the Trust shall deliver to the Indenture Trustee an Officer’s Certificate stating the aggregate principal amount of the Notes or the portions thereof to be purchased by the Issuer.
SECTION 7.8 Transactions with Affiliates.
(a) Each of the Parent Note Guarantors may not, and may not permit any of the Restricted Subsidiaries to, enter into any transaction that involves in excess of US$20,000,000 with any Parent Note Guarantor’s Affiliate (other than the Parent Note Guarantors or any of the Restricted Subsidiaries), either directly or indirectly, unless such transaction is on terms no less favorable to the Parent Note Guarantors or such Restricted Subsidiary than those that could be obtained in a comparable arm’s length transaction with an entity that is not an Affiliate of the Parent Note Guarantors or such Restricted Subsidiary. For any such transaction that involves in excess of (a) US$30,000,000, a majority of the members of the relevant Parent Note Guarantor’s Board of Directors shall determine that such transaction satisfies the above criteria and shall evidence such a determination by a Board Resolution filed with the Indenture Trustee.
(b) The foregoing restriction shall not apply to
(i) reasonable and customary payments to or on behalf of a Parent Note Guarantor’s directors, officers or employees or any of the directors, officers or employees
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of a Parent Note Guarantor’s Restricted Subsidiaries, or in reimbursement of reasonable and customary payments or reasonable and customary expenditures made or Incurred by such Persons as directors, officers or employees;
(ii) any Restricted Payment permitted under Section 7.2 or Permitted Investments;
(iii) any loan or advance by a Parent Note Guarantor or any of the Restricted Subsidiaries to employees of any of them in the ordinary course of business;
(iv) (A) transactions with customers, distributors, suppliers, purchasers or sellers of goods or services, in each case in the ordinary course of business and otherwise in compliance with this Indenture, or (B) transactions existing on the Issue Date and described under “Related Party Transactions” in the Offering Memorandum and any amendment, supplement, restatement, replacement, renewal, extension, refinancing, thereof or thereto, including without limitation with different counterparties (so long as the renewed, replaced or new agreement, when taken as a whole is not more disadvantageous to the Noteholders in any material respect than the original agreement in effect on the Issue Date);
(v) any transaction with a Receivables Entity effected as part of a Qualified Receivables Transaction, acquisitions of Permitted Investments in connection with a Qualified Receivables Transaction, and other Investments in Receivables Entities consisting of cash or Securitization Obligations;
(vi) the payment to Millicom or any Subsidiary of Millicom of all reasonable expenses Incurred by Millicom or any Subsidiary of Millicom in connection with its direct or indirect Investment in the Parent Note Guarantors, their respective Subsidiaries and unpaid amounts accrued for prior periods;
(vii) the payment to Millicom and its Affiliates or Subsidiaries of Value Creation Fees of up to the greater of US$150,000,000 and 8.0% of Combined Total Assets per annum;
(viii) the issuance of shares or Intergroup Subordinated Loans;
(ix) transactions with Affiliates in their capacity as holders of indebtedness of any Parent Note Guarantor or any Restricted Subsidiary.
(x) Cash Management Loans;
(xi) any transaction under any tax sharing agreement or arrangement and payments pursuant thereto between or among Millicom, any Subsidiary of Millicom, a Note Guarantor, a Restricted Subsidiary or any other Person not otherwise prohibited by this Indenture and any payments or other transactions pursuant to a tax sharing agreement between any Note Guarantor or a Restricted Subsidiary and any other Person with which the Note Guarantors or any of the Restricted Subsidiaries files a consolidated tax return
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or with which the Note Guarantors or any of the Restricted Subsidiaries is part of a group for tax purposes (including a fiscal unity) or any tax advantageous group contribution made pursuant to applicable legislation; provided that any such payments or other transactions pursuant to a tax sharing agreement under this clause (xii) does not exceed the taxes that would be payable by the Note Guarantors and their Subsidiaries on a stand-alone basis or as a stand-alone tax group, reduced by any such taxes paid by the Note Guarantors and/or any of their respective Subsidiaries; and
(xii) contributions to the common equity capital of any Parent Note Guarantor or the issue or sale of Capital Stock of a Parent Note Guarantor.
SECTION 7.9 Limited Condition Transaction.
(a) In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of this Indenture which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Parent Note Guarantors, be deemed satisfied, so long as no Default or Event of Default, as applicable, exists on the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into. For the avoidance of doubt, if any Parent Note Guarantor has exercised its option under the first sentence of this paragraph, and any Default or Event of Default occurs following the date such definitive agreement for a Limited Condition Transaction is entered into and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder.
(b) In connection with any action being taken in connection with a Limited Condition Transaction for purposes of:
(i) determining compliance with any provision of this Indenture which requires the calculation of any financial ratio or test, including the Leverage Ratio; or
(ii) testing baskets set forth in this Indenture (including baskets measured as a percentage of Combined Total Assets);
(c) in each case, at the option of the Parent Note Guarantors (the Parent Note Guarantors’ election to exercise such option in connection with any Limited Condition Transaction, an “LCT Election”), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (the “LCT Test Date”); provided, however, that the Parent Note Guarantors shall be entitled to subsequently elect, in its sole discretion, the date of consummation of such Limited Condition Transaction instead of the LCT Test Date as the applicable date of determination, and if, after giving pro forma effect to the Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any Incurrence of Debt and the use of proceeds thereof), as are
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appropriate and consistent with the pro forma adjustment provisions set forth in the definition of “Combined EBITDA” and “Leverage Ratio,” the Parent Note Guarantors or any Subsidiary could have taken such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with.
(d) If the Parent Note Guarantors have made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Combined EBITDA or Combined Total Assets, of the Parent Note Guarantors and their respective Subsidiaries at or prior to the consummation of the relevant transaction or action, such baskets or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Parent Note Guarantors have made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, test or basket availability under this Indenture (including with respect to the Incurrence of Debt or Liens, or the making of Asset Dispositions, acquisitions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Parent Note Guarantors or any Subsidiary or the designation of an Unrestricted Subsidiary) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any Incurrence of Debt and the use of proceeds thereof) have been consummated.
SECTION 7.10 Payment of Taxes. The Parent Note Guarantors will pay or discharge or cause to be paid or discharged, before the same becomes delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon the Parent Note Guarantors or any of the Restricted Subsidiaries, or the Parent Note Guarantors’ or any of the Restricted Subsidiaries’ income, profits or property, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the Parent Note Guarantors’ property, or the Restricted Subsidiaries’ property; provided, however, that the Parent Note Guarantors shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings or, except where the failure to pay or discharge such taxes, assessments, governmental charges or claims would not, singly or in the aggregate have a material adverse effect on the Note Guarantors.
SECTION 7.11 Provision of Financial Information.
(a) The Parent Note Guarantors will furnish to the Indenture Trustee and the Noteholders, without cost to any of them:
(1) within 120 days after the end of each fiscal year (including for the avoidance of doubt, the fiscal year ended December 31, 2021), the Parent Note Guarantors’ audited combined financial statements for the two most recent years (including income statements, statements of financial position, cash flow
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statements and statements of changes in shareholders’ equity) and related notes thereto prepared in accordance with IFRS, as issued by the International Accounting Standards Board and as adopted by the EU, consistently applied, together with a “Management’s Discussion and Analysis of Financial Condition and Results of Operations” section with scope and content substantially similar to the corresponding section of the Offering Memorandum (after taking into consideration any changes to the Parent Note Guarantors’ business and operations after the Issue Date) and, with respect to the annual financial information, a report thereon by the Parent Note Guarantors’ certified independent auditors together with a certificate of the chief financial officer of each Parent Note Guarantor stating that, to the best of such officer’s knowledge after due inquiry, each Parent Note Guarantor during such period has kept, observed, performed and fulfilled each and every covenant and condition contained in this Indenture and the Credit and Guaranty Agreement and that such officer has obtained no knowledge of any Default or Event of Default; and
(2) within 60 days after the end of each of the first three fiscal quarters of each fiscal year, quarterly reports attaching the Parent Note Guarantors’ unaudited combined interim financial statements for the period then ended and the comparable period in the prior year (including income statements, statements of financial position, cash flow statements and statements of changes in shareholders’ equity) prepared in accordance with IFRS, as issued by the International Accounting Standards Board and as adopted by the EU, together with footnote disclosure.
(b) So long as the Notes remain Outstanding and during any period during which the Parent Note Guarantors are not subject to Section 13 or 15(d) of the U.S. Exchange Act nor exempt therefrom pursuant to Rule 12g3-2(b), the Parent Note Guarantors will furnish to holders and prospective purchasers of the Notes upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the U.S. Securities Act.
SECTION 7.12 Limitation on Lines of Business. The Note Guarantors, together with the Restricted Subsidiaries, shall not primarily engage in any business other than in a Related Business.
SECTION 7.13 Unrestricted Subsidiaries. Any Note Guarantor may designate any of the Restricted Subsidiaries to be an “Unrestricted Subsidiary” as provided below, in which event such Subsidiary and each other Person that is then or thereafter becomes a Subsidiary of such Subsidiary will be deemed to be an Unrestricted Subsidiary. “Unrestricted Subsidiary” means (1) any Subsidiary designated as such by a Note Guarantor’s Board of Directors as set forth below and (2) any Subsidiary of an Unrestricted Subsidiary. The Board of Directors of any Note Guarantor may designate any of such Note Guarantor’s Subsidiaries to be an Unrestricted Subsidiary provided (A) no default with respect to any Debt of such Subsidiary or any Subsidiary (other than any Unrestricted Subsidiary) of such Subsidiary (including any right which the Noteholders thereof may have to take enforcement action against such Subsidiary) would permit (upon notice, lapse of time or both) any holder of Debt to declare a
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default on such Debt or cause the payment thereof to be accelerated or payable prior to its Stated Maturity, and (B) if the Subsidiary to be so designated has total assets in excess of US$250,000, the Note Guarantors could make a Restricted Payment as a Permitted Investment in an amount equal to the fair market value of such Note Guarantor’s Investment in such Subsidiary pursuant to the Section 7.2 and such amount is thereafter treated as a Restricted Payment for the purpose of calculating the aggregate amount available for Restricted Payments thereunder.
SECTION 7.14 Release from Covenants.
(a) If on any date the Notes have an Investment Grade rating from at least two of Fitch, Moody’s and S&P and no Event of Default has occurred and is continuing, and notwithstanding that the Notes may later cease to have such Investment Grade ratings, the Parent Note Guarantors and the Restricted Subsidiaries shall be released from their obligations to comply with clause (iii) of Sections 7.1, 7.2, 7.3. 7.7 and 7.15(a). The foregoing release shall be effective as of the date that the Issuer sends the Indenture Trustee and the Noteholders a notice, in writing, that the Notes have an Investment Grade rating. The Indenture Trustee shall be under no obligation to monitor or determine when the Notes have achieved the requisite Investment Grade rating.
SECTION 7.15 Merger, Consolidations and Certain Sales of Assets of the Note Guarantors.
(a) A Parent Note Guarantor may not, in a single transaction or a series of related transactions, (a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into such Parent Note Guarantor or (b) directly or indirectly, convey, transfer, sell, lease or otherwise dispose of all or substantially all of such Parent Note Guarantor’s assets to any other Person, unless:
(i) (A) in a transaction in which such Parent Note Guarantor does not survive or in which such Parent Note Guarantor sells, leases or otherwise disposes of all or substantially all of its assets, the Parent Note Guarantor’s successor entity shall expressly assume, by (i) a supplemental indenture executed and delivered to the Indenture Trustee, all of the Parent Note Guarantor’s obligations under this Indenture, including its Note Guarantee and (ii) an instrument executed and delivered to the Lender, all of the Parent Note Guarantor’s obligations under the Credit and Guaranty Agreement and Expense Reimbursement and Indemnity Agreement and (B) is organized under the laws of (1) Guatemala or (2) the United States of America or any State thereof or the District of Columbia or (3) any other country if such successor entity undertakes, in such supplemental indenture, to pay such additional amounts in respect of principal (and premium, if any) and interest as may be necessary in order that the net amounts paid pursuant to the Loan or the Note Guarantees after deduction or withholding of any present or future withholding taxes, levies, imports or charges whatsoever imposed by or for the account of such country or any political subdivision or taxing authority thereof or therein shall equal the respective amounts of principal (and premium, if any) and interest specified in the Loan or Notes;
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(ii) immediately after giving effect to such transaction and treating any Debt which becomes such Note Guarantor’s obligation or that of any of the Restricted Subsidiaries as a result of such transaction as having been Incurred by such Note Guarantor or such Restricted Subsidiary at the time of the transaction, no Default or Event of Default shall have occurred and be continuing;
(iii) immediately after giving effect to such transaction and treating any Debt which becomes a Parent Note Guarantor’s obligation, or that of any of the Restricted Subsidiaries, as a result of such transaction as having been Incurred at the time of the transaction, (a) such Parent Note Guarantor (including any successor entity) could Incur at least US$1.00 of additional Debt pursuant to Section 7.1(a); or (b) the Leverage Ratio would not be greater than such ratio before giving effect to such transaction; provided, however, that this clause (iii)(b) will not apply if the Person merged or consolidated with or into the Parent Note Guarantor is a Subsidiary of Millicom incorporated in Guatemala and the transaction is carried out on terms not materially less favorable to the Parent Note Guarantor than those that might be obtained at the time from Persons that are not Affiliates of the Parent Note Guarantor. This clause (iii) will not apply if, in the good faith determination of such Parent Note Guarantor’s Board of Directors, which determination shall be evidenced by a Board Resolution, the principal purpose of such transaction is to change such Parent Note Guarantor’s jurisdiction of incorporation; and
(iv) the Parent Note Guarantor or the surviving entity has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction and the execution of the supplemental indenture, if applicable, have been satisfied.
(b) Upon any consolidation or merger in which a Parent Note Guarantor is not the continuing corporation or any transfer (excluding any lease) of all or substantially all of the assets of a Parent Note Guarantor in accordance with the foregoing, the successor entity shall succeed to, and be substituted for, and may exercise every right and power of, such Parent Note Guarantor under its Note Guarantee and this Indenture with the same effect as if such successor entity had been named as such.
(c) No Subsidiary Guarantor may, in a single transaction or a series of related transactions, (a) consolidate with or merge into any other Person or permit any other Person to consolidate with or merge into such Subsidiary Guarantor or (b) directly or indirectly, convey, transfer, sell, lease or otherwise dispose of all or substantially all of such Subsidiary Guarantor’s assets to any other Person, unless: (A) (i) the other Person is a Parent Note Guarantor or any Restricted Subsidiary that is a Note Guarantor or becomes a Note Guarantor concurrently with the transaction; (ii) (1) either (x) the Subsidiary Guarantor is the continuing Person or (y) the
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resulting, surviving or transferee Person (if not such Subsidiary Guarantor) expressly assumes by supplemental indenture all of the obligations of the Subsidiary Guarantor under its Note Guarantee; and (2) immediately after giving effect to the transaction, no Default has occurred and is continuing; or (iii) the transaction constitutes a sale or other disposition (including by way of consolidation or merger) of the Subsidiary Guarantor or the sale or disposition of all or substantially all the assets of the Subsidiary Guarantor (in each case other than to a Parent Note Guarantor or a Restricted Subsidiary) otherwise permitted by the Indenture; and (B) the Subsidiary Guarantor has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that the consolidation, merger, sale, assignment, transfer, lease, conveyance or other disposition and, if required in connection with such transaction, the supplemental indenture, complies with the applicable provisions of this Indenture and that all conditions precedent in this Indenture relating to the transaction and the execution of the supplemental indenture, if applicable, have been satisfied.
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
EVENTS OF DEFAULT; REMEDIES
SECTION 8.1 Events of Default. An “Event of Default” with respect to this Indenture shall mean the occurrence or existence of any Loan Event of Default. The Issuer shall not direct the Lender, or the Administrative Agent on behalf of the Lender, to notify the Borrower of any Default under clause (d) of Section 10 of the Credit and Guaranty Agreement without having first received directions with respect thereto from holders of at least 25% of the aggregate principal amount of the Outstanding Notes (or the Indenture Trustee acting on behalf of such Noteholders), in accordance with the terms of this Indenture.
SECTION 8.2 Acceleration(a) . (a) If an Event of Default (other than an Event of Default specified in Section 10(g) or Section 10(h) of the Credit and Guaranty Agreement) has occurred and is continuing, the Indenture Trustee or the Noteholders of at least 25% in principal amount of Outstanding Notes may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer (and the Indenture Trustee if given by the Noteholders) specifying the Event of Default and that it is a “notice of acceleration.” Upon such declaration the principal and interest shall be due and payable immediately.
(b) If an Event of Default specified in Section 10(g) or Section 10(h) of the Credit and Guaranty Agreement occurs, then the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Notes will become immediately due and payable without any declaration or other act on the part of the Indenture Trustee or any Noteholder.
(c) At any time after a declaration of acceleration has occurred and before a judgment for payment of the money due has been obtained, the Required Holders, by written notice to the Issuer (with a copy to the Indenture Trustee), may rescind and annul such declaration and its consequences if the rescission would not conflict with any judgment or decree of a court of competent jurisdiction, all existing Events of Default, other than the nonpayment of the principal and interest on the Notes that have become due solely by the declaration of
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acceleration, have been cured or waived, and no such rescission shall affect any subsequent Default or impair any right consequent thereon.
SECTION 8.3 Other Remedies. If an Event of Default occurs and is continuing, the Indenture Trustee may pursue any available remedy to collect the payment of principal or interest on the Notes or to enforce the performance of any provision of the Notes or this Indenture. The Indenture Trustee may maintain a proceeding even if it does not possess any of the Notes or does not produce any of them in the proceeding. A delay or omission by the Indenture Trustee or any Noteholder in exercising any right or remedy accruing upon an Event of Default shall not impair the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted by law.
SECTION 8.4 Waiver of Past Default. The Required Holders by written notice to the Indenture Trustee may waive an existing Default and its consequences except a Default triggered by a default in the payment of the principal of or interest due on the Loan under the Credit and Guaranty Agreement.
SECTION 8.5 Control by Majority. The Required Holders (or such other percentage of Noteholders of Outstanding Notes as may be permitted or required pursuant to the terms of this Indenture) may direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred on the Indenture Trustee. However, the Indenture Trustee may refuse to follow any direction that conflicts with law or this Indenture, is unduly prejudicial to the rights of other Noteholders, or would involve the Indenture Trustee in personal or financial liability or expense for which the Indenture Trustee has not received an indemnity or security satisfactory to it.
SECTION 8.6 Limitation on Suits. A Noteholder may pursue a remedy with respect to this Indenture or the Notes only if: (1) the Noteholder gives to the Indenture Trustee notice of a continuing Event of Default; (2) the Noteholders of at least 25% in principal amount of the Notes Outstanding make a request to the Indenture Trustee to pursue the remedy and offer the Indenture Trustee indemnity and/or security satisfactory to it against any loss, liability, cost, and/or expense of pursuing such remedy; (3) the Indenture Trustee either (i) gives to such Noteholders notice it will not comply with the request, or (ii) does not comply with the request within 30 days after receipt of the request and such indemnity and/or security; and (4) the Required Holders do not give the Indenture Trustee a direction inconsistent with the request prior to the earlier of the date, if ever, on which the Indenture Trustee delivers a notice under Section 8.6(3)(i) or the expiration of the period described in Section 8.6(3)(ii). A Noteholder may not use this Indenture to prejudice the rights of another Noteholder or to obtain a preference or priority over another Noteholder.
SECTION 8.7 Rights of Noteholders to Receive Payment. Notwithstanding any other provision of this Indenture, the right of any Noteholder to receive payment of principal and interest on the Notes, on or after the respective due dates expressed in the Notes, or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired or affected without the consent of such Noteholder.
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SECTION 8.8 Priorities. After an Event of Default any money or other property distributable in respect of the Issuer’s obligations under this Indenture shall be paid in the following order:
FIRST: to the Indenture Trustee (including any predecessor Indenture Trustee) and the Authorized Agents for amounts due under the Expense Reimbursement and Indemnity Agreement;
SECOND: to the Lender for amounts due under the Expense Reimbursement and Indemnity Agreement;
THIRD: to Noteholders for amounts due and unpaid on the Notes for principal, interest and other amounts, ratably, without preference or priority of any kind, according to the amounts due and payable on the Notes for principal and interest, respectively; and
FOURTH: to the Issuer.
The Indenture Trustee may fix a record date and payment date for any payment to Noteholders.
SECTION 8.9 Undertaking for Costs. In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Indenture Trustee for any action taken or omitted by it as Indenture Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 8.9 does not apply to a suit by the Indenture Trustee, a suit by a Noteholder pursuant to Section 8.7 or a suit by Noteholders of more than 10% in principal amount of the Outstanding Notes.
SECTION 8.10 Proof of Claim. In the event of any proceeding, the Indenture Trustee may file a claim for the unpaid balance of the Notes in the form required in the proceeding and cause the claim to be approved or allowed. Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment, or composition affecting the Notes or the rights of any Noteholder thereof, or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any proceeding.
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
CONCERNING THE INDENTURE TRUSTEE
SECTION 9.1 Certain Rights and Duties of Indenture Trustee; Notices and Information Received from the Administrative Agent.
(a) Except during the continuance of an Event of Default, the Indenture Trustee undertakes to perform 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 Indenture
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Trustee. The Indenture Trustee may conclusively rely and shall be fully protected in acting, or refraining from acting, upon any resolution, certificate, statement, instruction, direction, calculation, instrument, opinion, report, notice, request, consent, order, Note, debenture or other paper or document believed by it in good faith to be genuine and to have been signed or presented by the proper party or parties; provided that in the case of any such certificates or opinions which by the provisions hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture but need not verify the contents thereof (but need not, absent manifest error, confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
(i) this Subsection shall not be construed to limit the effect of Subsection (a) of this Section;
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Indenture Trustee unless it shall be proved that the Indenture Trustee was grossly negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and believed by it in good faith to be authorized or within the discretion or rights or powers conferred upon it by this Indenture or with respect to any action it takes or omits to take in good faith in accordance with a direction received by it from Noteholders holding a sufficient percentage of Notes to give such direction as permitted by this Indenture; and
(iv) no provision of this Indenture shall require the Indenture 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 adequate indemnity against such risk or liability is not reasonably assured to it.
(d) Subject to the provisions of Section 9.1(a), (b) and (c):
(i) any request, direction, order or demand of the Issuer or any Note Guarantor mentioned herein shall be sufficiently evidenced by an Officer’s Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any
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resolution of the Board of Directors of any Person shall be evidenced to the Indenture Trustee by a Board Resolution.
(ii) the Indenture Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture, and may refuse to perform any duty or exercise any such rights or powers unless it shall have been offered security and/or indemnity to its satisfaction against the costs, expenses and liabilities which may reasonably be incurred therein or thereby.
(iii) the Indenture Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture (provided that the Indenture Trustee’s conduct does not constitute gross negligence or willful misconduct).
(iv) the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instruction, direction, calculation, instrument, opinion, report, notice, request, consent, order, approval, appraisal, Note, debenture or other paper or document with respect to the Notes. The Indenture Trustee need not investigate any fact or matter stated in any document, but the Indenture Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine in good faith to make such further inquiry or investigation, it shall be entitled upon reasonable notice to examine the books, records and premises of the Issuer, personally or by its agent or attorney at the sole cost of the Issuer.
(v) The Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney custodian or nominee appointed with due care by it hereunder.
(vi) The Indenture Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with any direction of the Issuer given under this Indenture, provided that the Indenture Trustee’s conduct does not constitute gross negligence or willful misconduct.
(vii) Neither the Indenture Trustee nor any Authorized Agent shall have any liability or responsibility with respect to, or obligation or duty to monitor, determine or inquire as to the Issuer’s, any Note Guarantor’s or any Subsidiary’s compliance with any covenant under this Indenture or any other Transaction Document.
(viii) The Indenture Trustee shall have no obligation to invest or reinvest or pay interest on any cash held pursuant to this Indenture.
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(ix) The Indenture Trustee may request that each of the Issuer and the Note Guarantors deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificates may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(x) The permissive rights of the Indenture Trustee hereunder shall not be construed as a duty.
(e) The Indenture Trustee may reasonably request information, including an Officer’s Certificate, from time to time, as necessary or appropriate in order to ascertain compliance with the requirements of this Indenture and the Notes and may, at the expense of the Issuer, consult with counsel and the advice or opinion of counsel shall be full and complete authorization and protection in respect of any action taken or omitted by it hereunder in good faith and in accordance with such advice or opinion.
(f) If the Indenture Trustee has or shall acquire a conflicting interest, the Indenture Trustee shall either eliminate such interest or resign.
(g) The Indenture Trustee shall (on behalf of the Issuer), promptly upon receipt from the Lender, the Administrative Agent, the Issuer or any Note Guarantor and only to the extent actually received from the Lender, the Administrative Agent, the Issuer or any Note Guarantor and in no event later than two (2) Business Days from receipt thereof by the Indenture Trustee pursuant to Section 6(a) of the Participation Agreement or Section 7.11 of this Indenture, deliver to the Noteholders the Credit and Guaranty Agreement Information, financial statements and other information set forth in Section 7.11, as applicable, together, with (i) a Section 3(c)(7) Reminder Notice and (ii) a request that the Registered Depositary forward such financial statements or other information and such Section 3(c)(7) Reminder Notice to the relevant Registered Depositary participants for further delivery to beneficial owners of interests in the Global Notes. The Indenture Trustee shall provide to the Issuer on request the monthly account statements as the Indenture Trustee may have in relation to the Loan Payment Account and the Payment Account. The requirements of this Section 9.1(g) may be performed by the Indenture Trustee by granting the Issuer on-line read only access to the accounts.
(h) The Indenture Trustee shall deliver to Noteholders all reports and financial information received from the Issuer pursuant to Section 6.17.
(i) The Indenture Trustee shall, on behalf of the Issuer, within five (5) Business Days after the Issue Date send to the Registered Depositary a Section 3(c)(7) Reminder Notice, the form of which is attached as Exhibit F hereto, with a request that the Registered Depositary forward such Section 3(c)(7) Reminder Notice to the relevant Registered Depositary participants for further delivery to beneficial owners of interests in the Global Notes.
(j) The Indenture Trustee, on behalf of the Issuer, shall deliver a request to the Registered Depositary in the form of Exhibit H hereto within five (5) Business Days of the
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Issue Date that the Registered Depositary take the following (or substantially similar) steps in connection with the Rule 144A Restricted Global Notes:
(i) to include the “3c7” and “144A” markers in the Registered Depositary 20- character security descriptor and the 48-character additional descriptor for the Rule 144A Restricted Global Notes in order to indicate that sales are limited to QIBs that are also Qualified Purchasers;
(ii) to cause (i) each physical Registered Depositary delivery order ticket delivered by the Registered Depositary to purchasers to contain the Registered Depositary 20-character security descriptors and (ii) each Registered Depositary delivery order ticket delivered by the Registered Depositary to purchasers in electronic form to contain the “3c7” and “144A” indicators and the related user manual for participants, which shall contain a description of the relevant restrictions;
(iii) to include the Rule 144A Restricted Global Notes in the Registered Depositary’s “Reference Directory” of Section 3(c)(7) offerings;
(iv) to include in all “confirms” of trades of the Rule 144A Restricted Global Notes in the Registered Depositary CUSIP numbers with a “fixed field” attached to the CUSIP number that has the “3c7” and “144A” markers; and
(v) to deliver to the Issuer a list of all Registered Depositary participants holding an interest in the Rule 144A Global Notes.
(k) The Indenture Trustee, on behalf of the Issuer, (who shall execute any documentation required in connection therewith), shall deliver a request in the form of Exhibit G, within five Business Days after the Issue Date, to Bloomberg, L.P. and any other third-party vendor identified to it by the Issuer, to include the following (or substantially similar language) at the bottom of each DES screen containing information about the Rule 144A Restricted Global Notes to: “ISS’D UNDER 144A/3C7. SEE RESTRICTIONS IN OM-QIB/QP ONLY. NON- COMPLIANT PURCHASE MAY BE VOIDED AND/OR RESULT IN FORCED SALE”;
(l) The Issuer, in collaboration with the Initial Purchasers, shall request and obtain confirmation from the CUSIP Service Bureau that each “CUSIP” number obtained for the Rule 144A Restricted Global Notes has an attached “fixed field” that contains “3c7” and “144A” markers.
SECTION 9.2 Indenture Trustee Not Responsible for Recitals; Etc. The recitals contained herein and in the Notes or any other document in connection with the sale of the Notes (including the Offering Memorandum), except the Indenture Trustee’s certificate of authentication, shall be taken as the statements of the Issuer and the Note Guarantors and the Indenture Trustee assumes no responsibility for the correctness of the same. The Indenture Trustee shall not be responsible for and makes no representations as to the validity or sufficiency of this Indenture, any offering materials of, the Notes, any Note Guarantees or any other Transaction Document. The Indenture Trustee shall not be accountable for the use or application
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by the Issuer of any of the Notes or of the proceeds of such Notes and it shall not be responsible for the use or application of any money received by any Paying Agent other than the Indenture Trustee. The Indenture Trustee shall not be responsible or liable for non-compliance by the Registered Depositary or Bloomberg with any request made by the Indenture Trustee to the Registered Depositary or Bloomberg. The Indenture Trustee shall also not be responsible or liable for any failure of the Issuer or any other party to comply with any securities laws, including, without limitation, the Securities Act or the Investment Company Act, that may be caused by or may result because of the failure of the Registered Depositary or Bloomberg to comply with any request made by the Indenture Trustee pursuant to Section 9.1.
SECTION 9.3 Indenture Trustee and Others May Hold Notes. Each of the Indenture Trustee or any Authorized Agent, or any of their respective Affiliates, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with the Issuer the Note Guarantors or any other obligor on the Notes with the same rights it would have if it were not Indenture Trustee, such Authorized Agent or such Affiliate.
SECTION 9.4 Moneys Held by Indenture Trustee or Paying Agent.
(a) Whenever the Issuer shall have one or more Paying Agents any amounts deposited with any such Paying Agent shall be held in trust by the Paying Agent for the benefit of the Persons entitled thereto, and (unless such Paying Agent is the Indenture Trustee) such Paying Agent will promptly notify the Indenture Trustee of its action or failure so to act. Each Paying Agent other than the Indenture Trustee shall execute and deliver to the Indenture Trustee an instrument in which such Paying Agent shall agree with the Indenture Trustee, subject to the provisions of this Section, to the effect that such Paying Agent will:
(i) hold all amounts held by it for the making of payments in respect of the Notes in trust for the benefit of the Persons entitled thereto until such amounts shall be paid to such Persons or otherwise disposed of as herein provided;
(ii) provide the Indenture Trustee notice of any default in payment on the
Notes;
(iii) at any time during the continuance of any such default payment, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee all amounts so held in trust by such Paying Agent; and
(iv) if required by law, it will collect U.S. Internal Revenue Service Form W-8 or W-9, as applicable, from Noteholders and will file U.S. Internal Revenue Service Forms 1042, 1042S, 1096 and 1099 with respect to the Notes and payments in respect thereof.
(b) The Issuer may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay or deliver, or direct any Paying Agent to pay or deliver, to the Indenture Trustee all amounts held in trust by the Issuer or such Paying Agent, such amounts to be held by the Indenture Trustee upon the same trusts as those
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upon which such amounts were held by the Issuer or such Paying Agent; and, upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
(c) The Indenture Trustee shall arrange with all such Paying Agents for the payment, from funds furnished by the Issuer to the Indenture Trustee pursuant to this Indenture, of the principal of and interest and other amounts due on the Notes.
(d) If the Issuer shall act as its own Paying Agent with respect to any Notes, it will, on or before each due date of the principal of, premium (if any) or interest on such Notes or other amounts, set aside, segregate and hold in trust for the benefit of the Noteholders of such Notes a sum sufficient to pay such principal, interest or other amounts so becoming due. The Issuer will promptly notify the Indenture Trustee, in writing, of any failure to take action.
(e) Anything in this Section 9.4, to the contrary notwithstanding, the agreements to hold sums in trust as provided in this Section are subject to the provisions of Section 13.4.
(f) The Issuer agrees to indemnify the Noteholders, out of the Trust Assets, against any failure on the part of any Paying Agent to pay, in accordance with the terms hereof, any sum due in respect of the Notes on the applicable Payment Date.
SECTION 9.5 Compensation of the Indenture Trustee and its Lien.
(a) The Issuer covenants and agrees to pay to the Indenture Trustee (all references in this Section 9.5 to the Indenture Trustee shall be deemed to apply to the Indenture Trustee in its capacities as Indenture Trustee, Paying Agent, Note Registrar and Transfer Agent and to each of the other Authorized Agents) from time to time, and the Indenture Trustee shall be entitled to, compensation for all services rendered by it hereunder (which shall be agreed to from time to time by the Issuer or the Borrower and the Indenture Trustee and which shall not be limited by any provision of Law in regard to the compensation of a trustee of an express trust), and, except as herein otherwise expressly provided, the Issuer will pay or reimburse the Indenture Trustee upon its request for all reasonable and documented expenses and disbursements incurred or made by the Indenture Trustee in accordance with any of the provisions of this Indenture (including the reasonable compensation and the reasonable expenses, advances and disbursements of its counsel and of all Persons not regularly in its employ) except any such expense or disbursement as may arise from its gross negligence or bad faith. The Issuer also covenants and agrees to indemnify the Indenture Trustee and any predecessor Indenture Trustee for, defend, and hold harmless each of the Indenture Trustee and any predecessor Indenture Trustee and its respective officers, directors, employees, representatives and agents from and against, any loss, liability, claim, damage or expense incurred without gross negligence or bad faith on the part of the Indenture Trustee or any of its employees, officers, directors, representatives or agents, arising out of or in connection with the acceptance or administration of the trust or trusts hereunder and this Indenture, the performance of its duties and obligations and the exercise of its rights hereunder, including liability that the Indenture Trustee may incur as a result of failure to withhold, pay or report Taxes and including the costs and expenses of
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defending itself against any claim or liability in the premises and including, without limitation, any loss, liability, claim, damage or expense relating to or arising out of any environmental law. The obligations of the Issuer under this Section shall constitute additional Debt hereunder. In no event shall the Indenture Trustee be liable to any Person for special, indirect, punitive, or consequential loss or damages whatsoever (including, but not limited to lost profits), even if the Indenture Trustee has been advised of the likelihood of such damage and regardless of the form of action taken.
(b) The obligations of the Issuer under this Section 9.5 shall survive payment in full of the Notes, the resignation or removal of the Indenture Trustee and the termination of this Indenture.
(c) When the Indenture Trustee incurs expenses after the occurrence of Event of Default under Section 10(g) or Section 10(h) of the Credit and Guaranty Agreement, the expenses are intended to constitute expenses of administration under any bankruptcy law; provided, however, that this shall not affect the Indenture Trustee’s rights as set forth in this Section 9.5 or Section 8.8.
SECTION 9.6 Right of Indenture Trustee to Rely on Officer’s Certificates and Opinions of Counsel. Before the Indenture Trustee acts or refrains from acting with respect to any matter contemplated by this Indenture, it may require an Officer’s Certificate of the Issuer and an Opinion of Counsel, which shall conform to the provisions of Section 15.1. The Indenture Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such certificate or opinion as set forth in Section 9.1(b)(v).
SECTION 9.7 Persons Eligible for Appointment as Indenture Trustee. There shall at all times be a Indenture Trustee hereunder which shall at all times be a bank, having a combined capital and surplus of at least $100,000,000. If such corporation publishes reports of condition at least annually, then for the purposes of this Section 9.7, 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. In case at any time the Indenture Trustee shall cease to be eligible in accordance with this Section 9.7, the Indenture Trustee shall resign immediately in the manner and with the effect specified in Section 9.8.
SECTION 9.8 Resignation and Removal of Indenture Trustee; Appointment of Successor.
(a) The Indenture Trustee, or any trustee or trustees hereafter appointed, may at any time resign by giving written notice to the Issuer and by giving notice of such resignation to the Noteholders in the manner provided in Section 15.4.
(b) In case at any time any of the following shall occur with respect to any
Notes:
(i) the Indenture Trustee shall cease to be eligible under Section 9.7 and shall fail to resign after written request therefore by the Issuer or by any Noteholder, or
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(ii) the Indenture Trustee shall become incapable of acting, or shall be adjudged bankrupt or insolvent, or a receiver of the Indenture Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation; then, in any such case, (A) the Issuer may remove the Indenture Trustee, and appoint a successor trustee, or (B) any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
(c) The Required Holders at the time Outstanding may at any time, upon thirty (30) days prior written notice, remove the Indenture Trustee and appoint a successor Indenture Trustee by delivering to the Indenture Trustee so removed, to the successor Indenture Trustee so appointed and to the Issuer, the evidence provided for in Section 10.1 of the action taken by the Noteholders, provided that the Issuer shall consent (such consent not to be unreasonably withheld and no consent shall be required if an Event of Default has occurred and is continuing).
(d) If the Indenture Trustee shall resign, be removed, or become incapable of acting or if a vacancy shall occur in the office of Indenture Trustee with respect to the Notes for any cause, the Issuer shall promptly appoint a successor Indenture Trustee or Indenture Trustees by written instrument, in duplicate, executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be delivered to the former Indenture Trustee and one copy to the successor Indenture Trustee. If no successor Indenture Trustee shall have been so appointed and have accepted such appointment pursuant to Section 9.9 within 30 days after the giving of such notice of resignation or removal, the former Indenture Trustee may itself, on behalf of the Issuer, appoint a successor Indenture Trustee, at the Issuer’s expense, petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee, or any Noteholder who has been a bona fide Noteholder for at least six months may, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor Indenture Trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe, appoint a successor Indenture Trustee.
(e) Any resignation or removal of the Indenture Trustee and any appointment of a successor Indenture Trustee pursuant to this Section shall become effective only upon acceptance of appointment by the successor Indenture Trustee as provided in Section 9.9.
(f) If an Indenture Trustee is removed with or without cause, all fees and expenses (including the reasonable fees and expenses of counsel) of the Indenture Trustee incurred in the administration of the trust or in performing the duties or exercising the rights hereunder shall be paid to the Indenture Trustee.
SECTION 9.9 Acceptance of Appointment by Successor Indenture Trustee.
(a) Any successor Indenture Trustee appointed under Section 9.8 shall execute, acknowledge and deliver to the Issuer and to its predecessor Indenture Trustee an
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instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor Indenture Trustee shall become effective and such successor Indenture Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts, duties and obligations of its predecessor Indenture Trustee hereunder, with like effect as if originally named as Indenture Trustee herein; but, nevertheless, on the written request of the Issuer or of the successor Indenture Trustee, the Indenture Trustee ceasing to act shall, upon payment of any such amounts then due it pursuant to the provisions of Section 9.5, execute and deliver an instrument (in form and substance reasonably satisfactory to the predecessor trustee) transferring to such successor Indenture Trustee all the rights, powers and trusts of the Indenture Trustee so ceasing to act, and shall assign, transfer and deliver to such successor Indenture Trustee all property and money as may be held by such Indenture Trustee ceasing to act. Upon request of any such successor Indenture Trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor Indenture Trustee all such rights and powers. Any Indenture Trustee ceasing to act shall, nevertheless, retain a Lien in accordance with Section 9.17 upon all property or funds held or collected by such Indenture Trustee to secure any amounts then due it pursuant to Section 9.5.
(b) No successor Indenture Trustee shall accept appointment as provided in this Section 9.9 unless at the time of such acceptance such successor Indenture Trustee shall be eligible under Section 9.7.
(c) Upon acceptance of appointment by a successor Indenture Trustee, the Issuer shall give notice of the succession of such Indenture Trustee hereunder to the Noteholders in the manner provided in Section 15.4. If the Issuer fails to give such notice within 10 days after acceptance of appointment by the successor Indenture Trustee, the successor Indenture Trustee shall cause such notice to be given at the expense of the Issuer.
SECTION 9.10 Merger, Conversion or Consolidation of Indenture Trustee.
(a) Any Person into which the Indenture 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 Indenture Trustee shall be a party, or any Person succeeding to all or substantially all the corporate trust business of the Indenture Trustee (including this transaction), shall be the successor of the Indenture Trustee hereunder without the execution or filing of any paper or any further act on the part of any of the parties hereto; provided that such successor Indenture Trustee shall be eligible under the provisions of Section 9.7 hereof.
(b) In case at the time such successor to the Indenture Trustee shall succeed to the trusts created by this Indenture, any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor Indenture Trustee and deliver such Notes so authenticated and, in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor hereunder or in the name of the successor trustee, and in such cases such certificate shall have the same force under the Notes and under this Indenture as if authenticated by such predecessor Indenture Trustee; provided that the certificate of the Indenture Trustee shall have provided that the right to adopt the certificate
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of authentication of any predecessor Indenture Trustee or the authenticated Notes in the name of any predecessor Indenture Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
SECTION 9.11 Maintenance of Offices and Agencies.
(a) There shall at all times be maintained in New York County, and in such other places of payment, if any, as shall be specified for the Notes, an office or agency where Notes may be presented or surrendered for registration of transfer or exchange and for payment of principal, premium (if any) and interest. Such agency shall be initially located at the address set forth in Section 15.3 hereto. Notices and demands to or upon the Issuer and the Note Guarantors (other than the type contemplated by Section 15.15) in respect of the Notes, the Note Guarantees or this Indenture may be served at the Corporate Trust Office. Written notice of the location of each of such other office or agency and of any change of location thereof shall be given by the Issuer to the Indenture Trustee and by the Indenture Trustee to the Noteholders in the manner specified in Section 15.4. In the event that no such office or agency shall be maintained or no such notice of location or of change of location shall be given, presentations, surrenders and demands (other than the type contemplated by Section 15.15) may be made and notices may be served at the Corporate Trust Office.
(b) There shall at all times be a Note Registrar and a Paying Agent hereunder. In addition, at any time when any Notes remain Outstanding, the Indenture Trustee may appoint an Authenticating Agent or Agents with respect to the Notes which shall be authorized to act on behalf of the Indenture Trustee to authenticate Notes issued upon original issuance, exchange, registration of transfer or redemption thereof or pursuant to Section 2.13, and Notes so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Indenture Trustee hereunder (it being understood that wherever reference is made in this Indenture to the authentication and delivery of Notes by the Indenture Trustee or the Indenture Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Indenture Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Indenture Trustee by an Authenticating Agent). The Issuer agrees to pay to each Authenticating Agent from time to time reasonable compensation for its services under this paragraph.
(c) [Reserved].
(d) Any Authorized Agent shall be a bank or trust company and shall be a Person (i) organized and doing business under the laws of the United States or any State thereof, (ii) with a combined capital and surplus of at least $50,000,000, and (iii) authorized under such laws to exercise corporate trust powers, subject to supervision by United States Federal or state authorities. If such Authorized Agent publishes reports of its condition at least annually, pursuant to Law or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section 9.11, the combined capital and surplus of such Authorized Agent 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 an Authorized Agent shall cease to be eligible in
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accordance with the provisions of this Section 9.11, such Authorized Agent shall resign immediately in the manner and with the effect specified in this Section 9.11.
(e) The Indenture Trustee at its Corporate Trust Office, is hereby appointed as Paying Agent, Note Registrar and Transfer Agent hereunder.
(f) Notwithstanding any other provision of this Indenture, any payment required to be made to or received or held by the Indenture Trustee may, to the extent authorized by written instructions of the Indenture Trustee, be made to or received or held by a Paying Agent in New York County, for the account of the Indenture Trustee.
(g) Any Person into which any Authorized Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, consolidation or conversion to which any Authorized Agent shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of any Authorized Agent, shall be the successor of such Authorized Agent hereunder, if such successor Person is otherwise eligible under this Section 9.11, without the execution or filing of any paper or any further act on the part of the parties hereto or such Authorized Agent or such successor Person.
(h) Any Authorized Agent may at any time resign by giving written notice of resignation to the Indenture Trustee and the Issuer. The Issuer may, and at the request of the Indenture Trustee shall, at any time, terminate the agency of any Authorized Agent by giving written notice of such termination to the Authorized Agent and to the Indenture Trustee. Upon the resignation or termination of an Authorized Agent or in case at any time any such Authorized Agent shall cease to be eligible under this Section 9.11 (when, in either case, no other Authorized Agent performing the functions of such Authorized Agent shall have been appointed), the Issuer shall promptly appoint one or more qualified successor Authorized Agents to perform the functions of the Authorized Agent which has resigned or whose agency has been terminated or who shall have ceased to be eligible under this Section 9.11. The Issuer shall give written notice of any such appointment to all Noteholders in accordance with Section 15.4.
(i) The Issuer initially appoints The Bank of New York Mellon, as Note Registrar and Paying Agent.
(j) [Reserved].
(k) [Reserved].
SECTION 9.12 Indenture Trustee Risk. None of the provisions contained in this Indenture shall require the Indenture Trustee to expend or risk its own funds or otherwise incur personal or financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if it shall have reasonable ground for believing that the repayment of such funds or liability is not reasonably assured to it.
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SECTION 9.13 Appointment of Co-Indenture Trustee.
(a) It is the purpose of this Indenture that there shall be no violation of any law of any jurisdiction, denying or restricting the right of banking corporations or associations to transact business as Indenture Trustee in such jurisdiction. It is recognized that in case of litigation under this Indenture or any Transaction Document, and in particular in case of the enforcement of any such document on default, or in case the Indenture Trustee deems that by reason of any present or future Law of any jurisdiction it may not exercise any of the powers, rights or remedies herein granted to the Indenture Trustee or hold title to the properties, in trust, as herein granted, or take any other action which may be desirable or necessary in connection therewith, it may be necessary that the Indenture Trustee appoint an additional individual or institution as a separate or co-trustee. The following provisions of this Section 9.13 are adopted to these ends.
(b) In the event that the Indenture Trustee appoints an additional individual or institution as a separate or co-trustee, each and every remedy, power, right, claim, demand, cause of action, immunity, indemnity, estate, title, interest and Lien expressed or intended by this Indenture to be exercised by or vested in or conveyed to the Indenture Trustee with respect thereto shall be exercisable by and vested in such separate or co-trustee but only to the extent necessary to enable such separate or co-trustee to exercise such powers, rights and remedies, and every covenant and obligation necessary to the exercise thereof by such separate or co-trustee shall run to and be enforceable by either of them.
(c) Should any instrument in writing be required by the separate trustee or co-trustee so appointed by the Indenture Trustee for more fully and certainly vesting in and confirming to him or it such properties, rights, powers, trusts, duties and obligations, any and all such instruments in writing shall, on request, be executed, acknowledged and delivered by the Issuer. In case any separate trustee or co-trustee, or a successor to either, shall die, become incapable of acting, resign or be removed, all the estates, properties, rights, powers, trusts, duties and obligations of such separate trustee or co-trustee, so far as permitted by Law, shall vest in and be exercised by the Indenture Trustee until the appointment of a new trustee or successor to such separate trustee or co-trustee.
(d) Every separate trustee and co-trustee shall, to the extent permitted by Law, be appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed upon the Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without the Indenture Trustee joining in such act), except to the extent that under any Law of any jurisdiction in which any particular act or acts are to be performed the Indenture Trustee shall be incompetent or unqualified to perform such act or acts, in which event such rights, powers, duties and obligations (including the holding of title to any property or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely at the direction of the Indenture Trustee;
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(ii) no trustee hereunder shall be personally or financially liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
SECTION 9.14 Knowledge of Default. Subject to receiving notice from the Issuer pursuant to Section 6.11 of this Indenture, the Indenture Trustee will give notice to the Noteholders, promptly but no later than thirty (30) days after a Responsible Officer obtains knowledge of the occurrence of any Event of Default, accompanied by a detailed description, if any, received from the Issuer with respect to such Event of Default and stating what action the Borrower has proposed to take with respect thereto. The Indenture Trustee shall not be deemed to have notice of a Default or Event of Default unless a Responsible Officer has received written notice of such Default or Event of Default at the Corporate Trust Office of the Indenture Trustee and such notice references the Notes and the provisions of this Indenture.
SECTION 9.15 Securities Laws/Transfer Disclaimer. None of the Indenture Trustee nor any Authorized Agent shall have any obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable Law with respect to any transfer of any interest in any Note (including any transfers between or among the depositary participants, members or beneficial owners in any Global Note) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by, the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
SECTION 9.16 Incumbency Certificate/Specimen Signatures. With the delivery of this Indenture, each of the Issuer and the Note Guarantors is furnishing to the Indenture Trustee, and from time to time thereafter may furnish, one or more Officer’s Certificates identifying and certifying the incumbency and specimen signatures of the Authorized Representatives of the Issuer and the Note Guarantors. Until the Indenture Trustee receives a subsequent Officer’s Certificate, the Indenture Trustee shall be entitled to conclusively rely on the last such Officer’s Certificate delivered to it for purposes of determining the Authorized Representatives of the Issuer and the Note Guarantors, as applicable.
SECTION 9.17 Lien/Right of Set-Off. To secure the obligations owed to the Indenture Trustee and any Authorized Agent hereunder, the Indenture Trustee or such Authorized Agent, as the case may be, shall have a Lien prior on all money or property held or collected by the Indenture Trustee and or any Authorized Agent in its capacity as Indenture Trustee and/or any Authorized Agent, and may withhold or set-off any amounts due and owing to it under this Indenture from any money or property held or collected by the Indenture Trustee and/or any Authorized Agent in its capacity as Indenture Trustee and/or any Authorized Agent.
SECTION 9.18 Electronic Transmission Language. The Indenture Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and the Transaction Documents and delivered
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using Electronic Means; provided, however, that the Issuer and/or the Note Guarantors, as applicable, shall provide to the Indenture Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers, which incumbency certificate shall be amended by the Issuer and/or the Note Guarantors, as applicable, whenever a person is to be added or deleted from the listing. If the Issuer and/or the Note Guarantors, as applicable, elects to give the Indenture Trustee Instructions using Electronic Means and the Indenture Trustee in its discretion elects to act upon such Instructions, the Indenture Trustee’s understanding of such Instructions shall be deemed controlling. The Issuer and the Note Guarantors understand and agree that the Indenture Trustee cannot determine the identity of the actual sender of such Instructions and that the Indenture Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Indenture Trustee have been sent by such Authorized Officer. The Issuer and the Note Guarantors shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the Indenture Trustee and that the Issuer, the Note Guarantors and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Issuer and/or the Note Guarantors, as applicable. The Indenture Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Indenture Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Issuer and the Note Guarantors agree: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Indenture Trustee, including without limitation the risk of the Indenture Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Indenture Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Issuer and/or the Note Guarantors, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Indenture Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
SECTION 9.19 Force Majeure. Notwithstanding any provision herein to the contrary, in no event shall the Indenture Trustee or any Authorized Agent be liable for any failure or delay in the performance of its obligations under this Indenture because of circumstances beyond its control, including, but not limited to, acts of God, flood, war (whether declared or undeclared), terrorism, pandemics or epidemics, civil unrest, fire, riot, strikes or work stoppages for any reason, embargo, government action, including any laws, ordinances, regulations or the like which restrict or prohibit the providing of the services contemplated by this Indenture, inability to obtain material, equipment, or communications or computer facilities, or the failure of equipment or interruption of communications or computer facilities, or the unavailability of the Federal Reserve Bank wire, facsimile, Electronic Means, or other wire or communication facilities and other causes beyond its control whether or not of the same class or kind as specifically named above.
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SECTION 9.20 Waiver of Damages. Anything in this Indenture or any other Transaction Document to the contrary notwithstanding, in no event shall the Indenture Trustee or any Authorized Agent be liable under or in connection with this Indenture, the Notes, the Note Guarantees or any other Transaction Document for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Indenture Trustee or such Authorized Agent has been advised of the possibility thereof and regardless of the form of action in which such damages are sought.
SECTION 9.21 Rights Applicable to Agents. The rights, privileges, protections, immunities, and benefits given to the Indenture Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Indenture Trustee, in its capacity as Paying Agent, Transfer Agent and Note Registrar hereunder, each Authorized Agent, custodian and any other Person employed by the Issuer to act hereunder or any agent appointed by the Indenture Trustee hereunder.
ARTICLE X
CONCERNING THE HOLDERS
CONCERNING THE HOLDERS
SECTION 10.1 Acts of Noteholders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders (collectively, an “Act” of such Noteholders, which term also shall refer to the instruments or record evidencing or embodying the same) may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Noteholders in person or by an agent duly appointed in writing or, alternatively, may be embodied in and evidenced by the record of Noteholders voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of Noteholders duly called and held in accordance with the provisions of Article XI, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments or record, or both, are delivered to the Indenture Trustee, and when it is specifically required herein, to the Issuer. 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 9.1) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section 10.1. The record of any meeting of Noteholders shall be proved in the manner provided in Section 11.5.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the certificate of any public or other officer of any jurisdiction authorized to take acknowledgments of deeds or administer oaths that the Person executing such instrument acknowledged to such officer the execution thereof, or by an affidavit of a witness to such execution sworn to before any such notary or other such officer, and where such execution is by an officer of a corporation or association or of the Issuer, on behalf of such corporation, association or the Issuer, such certificate or affidavit shall also constitute sufficient proof of such Person’s authority. The fact and date of the execution of any such instrument or writing, or the
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authority of the Person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of the Notes, the principal amount and serial numbers of Notes held by any Person, and the date or dates of holding the same, shall be proved by the Note Register and the Indenture Trustee shall not be affected by notice to the contrary.
(d) Any act of any Noteholder (i) shall bind the holder of such Note and every future Noteholder of the same Note and the Noteholder of every Note issued upon the transfer thereof or the exchange therefore or in lieu thereof, whether or not notation of such action is made upon such Note and whether or not such Noteholder has given its consent (unless required under this Indenture) to such Act or was present at any duly held meeting, and (ii) shall be valid notwithstanding that such Act is taken in connection with the transfer of such Note to any other Person, including the Issuer or any Affiliate thereof.
(e) Until such time as written instruments shall have been delivered with respect to the requisite percentage of principal amount of Notes for the Act contemplated by such instruments, any such instrument executed and delivered by or on behalf of a Noteholder may be revoked with respect to any or all of such Notes by written notice by such Noteholder (or its duly appointed agent) or any subsequent Noteholder (or its duly appointed agent), proven in the manner in which such instrument was proven unless such instrument is by its terms expressly irrevocable.
(f) Notes authenticated and delivered after any Act of Noteholders may, and shall if required by the Issuer, bear a notation in form approved by the Issuer as to any action taken by such Act of Noteholders. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Issuer, to such action, may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes in accordance with the terms of this Indenture.
(g) The Issuer may, but shall not be obligated to, fix a record date for the purpose of determining the Noteholders entitled to sign any instrument evidencing or embodying an Act of the Noteholders. If a record date is fixed, those Persons who were Noteholders at such record date (or their duly appointed agents), and only those Persons, shall be entitled to sign any such instrument evidencing or embodying an Act of Noteholders or to revoke any such instrument previously signed, whether or not such Persons continue to be Noteholders after such record date. No such instrument shall be valid or effective if signed more than 90 days after such record date, and may be revoked as provided in paragraph (e) above.
ARTICLE XI
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT
SECTION 11.1 Certain Rights of the Noteholders with Respect to the Participation Agreement and the Guarantees; Remedies Available under the Participation Agreement and Guarantees.
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(a) If at any time the Issuer is notified in writing by the Lender, the Administrative Agent on behalf of the Lender or the Borrower of any action upon which the Issuer is entitled to exercise a right or remedy under the Credit and Guaranty Agreement or the Loan pursuant to the Participation Agreement, the Issuer shall promptly and in any event within five Business Days of receipt of such notice send written notification to the Indenture Trustee. The Indenture Trustee shall promptly, but no later than five Business Days after receipt of such notification from the Issuer, send notice to each Noteholder (prepared by the Issuer) in the manner set forth in Section 15.4 hereof, which notice shall contain (i) such information as is contained in such notice to the Indenture Trustee from the Issuer, (ii) a statement that the Noteholders at the close of business on a specified record date will be entitled, subject to any applicable provision of Law or of this Indenture, to direct the Issuer as to the exercise of such right or remedy and (iii) a brief statement as to the manner in which such specific directions may be given. Any notice that is given in the manner herein provided in Section 15.4 to a Noteholder shall be conclusively presumed to have been duly given, whether or not the Noteholder receives such notice. In the absence of specific instructions from the Noteholders or the Indenture Trustee, the Issuer shall abstain from exercising its rights and remedies with respect to the Participation Agreement.
(b) With respect to the exercise of any right or remedy under the Credit and Guaranty Agreement or the Loan that requires the consent of the Lender, upon receipt by the Issuer of specific written direction from Required Holders or the Indenture Trustee acting on behalf of and at the written direction of the Required Holders (or such other percentage of Noteholders of Outstanding Notes as may be permitted or required pursuant to the terms of this Indenture) approving the exercise of such right or remedy, the Issuer shall promptly notify the Administrative Agent and the Lender, in writing, that it consents to the exercise.
(c) Notwithstanding the foregoing, the Issuer shall not consent to any such exercise of a right or remedy unless the Issuer has obtained an opinion of nationally recognized outside tax counsel experienced in such matters to the effect that such action will not result in the Trust being classified as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes.
(d) Any written direction pursuant to this Section 11.6 by a Noteholder to the Indenture Trustee and by the Indenture Trustee to the Issuer, as to any proposed exercise of a right or remedy shall constitute full protection to the Indenture Trustee and the Issuer for any action taken or omitted to be taken by it in good faith reliance thereon.
(e) The Issuer acknowledges and agrees that, to the extent permitted under the terms of the Participation Agreement, the Issuer (i) except to the extent permitted in Sections 12.1 and 12.2, shall not take any action, or refrain from taking any action, with respect to the Participation Agreement or any other Transaction Document to which it is a party, without the written consent of the Noteholders and (ii) shall take all action, or refrain from taking any action, as the Noteholders shall direct in writing.
ARTICLE XII
AMENDMENTS
AMENDMENTS
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SECTION 12.1 With Consent of Noteholders.
(a) The Issuer shall provide written notice to the Indenture Trustee promptly of any request by the Borrower for amendment, waiver or consent or any other affirmative action with respect to the Borrower and the Transaction Documents and at least ten Business Days prior to effectiveness of any such amendment, waiver or consent.
(b) Notwithstanding anything to the contrary in any Transaction Document, as a result of the pledge described in Article V, the Issuer shall not agree to any modification of the terms of any Transaction Document to which it is a party without having first received directions from the Indenture Trustee, acting upon the written instructions of the Required Holders, except as set forth under Section 12.1(c) and 12.2.
(c) At the written direction or consent of the Required Holders, each of the Issuer and the Indenture Trustee shall, subject to Sections 12.3 and 12.4, enter into an indenture or indentures supplemental hereto for the purpose of amending the provisions of this Indenture and the Issuer shall otherwise amend, modify or supplement any other Transaction Document to which it is a party; provided, however, that without the consent or direction of 90% of the aggregate principal amount of the then Outstanding Notes directly affected thereby, no such supplemental indenture or modification or amendment shall cause, with respect to this Indenture or any other Transaction Document, any of the following:
(i) change the maturity of any payment of principal of or any installment of interest on any Note;
(ii) reduce the principal amount or the rate of interest, or change the method of computing the amount of principal, interest or Note Additional Amounts, payable under any Transaction Document on any date;
(iii) change any Place of Payment where the principal of or interest under any Transaction Document is payable;
(iv) change the coin or currency in which the principal of or interest on any Transaction Document is payable;
(v) impair the right of the Noteholders to institute suit for the enforcement of any payment on or after the date due;
(vi) release the security interest in the Trust Assets created under this Indenture or waive any of the payment obligations of the Issuer that would otherwise be payable to the Noteholders;
(vii) following the delivery of notice to the Noteholders by the Issuer (or the Indenture Trustee on behalf of the Issuer) of any Notes Change of Control Offer or Notes Asset Sale Offer, modify any such offer in a manner adverse to the Noteholders;
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(viii) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Noteholders is required for any modification or the consent of whose Noteholders is required for any waiver of compliance with this Indenture; or
(ix) modify or change any of the provisions of this Indenture requiring consent or direction of Noteholders to amend, modify or waive any other provisions or terms except to increase any required percentage of consenting Noteholders or to provide that one or more provisions of this Indenture cannot be modified or waived without the consent of each Noteholder.
(d) Upon receipt by the Indenture Trustee of Board Resolutions, an Officer’s Certificate and an Opinion of Counsel, and such other documentation as the Indenture Trustee may reasonably require and upon the filing with the Indenture Trustee of evidence of the Act of said Noteholders, the Indenture Trustee shall join in the execution of such supplemental indenture or other instrument, as the case may be, subject to the provisions of Sections 12.3 and 12.4.
(e) It shall not be necessary for any Act of Noteholders under this Section 12.1 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
(f) The Issuer shall deliver notice to the Rating Agencies, if any, of any indenture or supplemental indenture prior to the execution of such indenture or supplemental indenture.
(g) Notwithstanding the foregoing, that without the consent or direction, as applicable, of the Noteholders of all Outstanding Notes no supplemental indenture or modification or amendment to any Transaction Document shall take effect unless the Issuer has obtained an opinion of a United States nationally recognized outside tax counsel experienced in such matters to the effect that following such amendment the Trust will not be classified as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes.
SECTION 12.2 Without Consent of Noteholders.
(a) Notwithstanding anything to the contrary provided for in Section 12.1 hereof, the Issuer, the Borrower, the Lender, the Administrative Agent and the Indenture Trustee at any time and from time to time, may, without the consent of any Noteholders, enter into one or more indentures supplemental hereto or other instrument to amend or modify any Transaction Document to which it is a party without the direction of the Noteholders in order to:
(i) cure any ambiguity;
(ii) correct or supplement any provision in such Transaction Document or in any amendment thereto that may be defective or inconsistent with any other provision of any Transaction Document or in any amendment to any Transaction Document;
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(iii) conform to any change in the Investment Company Act or securities law or any change in interpretation or application of the rules and regulations promulgated thereunder by any legislative body, court, government agency or regulatory authority;
(iv) modify, eliminate or add to any provision of any Transaction Document to such extent as shall be necessary to ensure that the Issuer will not be classified as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes;
(v) modify, eliminate or add to any provision of any Transaction Document to such extent as may be necessary or desirable; provided in each case that such amendments do not have a material adverse effect on the rights, preferences or privileges of the Issuer and, to the extent applicable, the Indenture Trustee and the Noteholders under the Transaction Documents;
(vi) make any other change that does not materially and adversely affect the rights of any Noteholder or to conform any Transaction Document to the descriptions thereof in “The Credit and Guaranty Agreement and the Loan,” “The Participation Agreement,” “The Trust,” or “Description of the Notes and the Note Guarantees” in the Offering Memorandum; or
(vii) make such other provisions in regard to matters or questions arising under such other Transaction Documents as the Issuer, and to the extent applicable, the Indenture Trustee and the Noteholders, may deem necessary or desirable and which will not adversely affect the interests of the Issuer, and to the extent applicable, the Indenture Trustee and the Noteholders thereunder.
(b) Notwithstanding the foregoing, the Issuer shall not amend or waive or instruct the Lender to amend or waive any provision of any Transaction Document, as applicable, unless the Issuer has obtained an opinion of a United States nationally recognized outside tax counsel experienced in such matters to the effect that following such amendment the Trust will not be classified as an association (or a publicly traded partnership) taxable as a corporation for United States federal income tax purposes.
SECTION 12.3 Execution of Supplemental Indentures. In executing supplemental indentures or amendments to the Transaction Documents permitted by this Article XII or the modifications thereby of the trusts created by this Indenture or granting any waivers hereunder, the Indenture Trustee shall be entitled to receive, and (subject to Section 9.1) shall be fully protected in relying conclusively upon, an Officer’s Certificate and Opinion of Counsel of the Issuer or any Note Guarantor stating that the execution of such supplemental indenture or amendment is authorized or permitted by this Indenture or the relevant Transaction Document, as applicable and all conditions precedent to the execution of such supplemental indenture or amendment have been met. The Indenture Trustee shall not be obligated to enter into any supplemental indentures or amendment which affect the Indenture Trustee’s own rights, duties, indemnities or immunities under this Indenture, the Notes, any Note Guarantee, any Transaction Document or otherwise.
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SECTION 12.4 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article XII, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Noteholder of a Note theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 12.5 Reference in Notes to Supplemental Indentures. Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article XII may, and shall if required by the Issuer, bear a notation in form approved by the Issuer as to any matter provided for in such supplemental indenture; and, in such case, suitable notation may be made upon Outstanding Notes after proper presentation and demand. If the Issuer shall so determine, new Notes so modified as to conform, in the opinion of the Issuer and the Indenture Trustee, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes in accordance with the terms of this Indenture.
SECTION 12.6 Notification of Luxembourg Stock Exchange. As long as the Notes are listed on the Luxembourg Stock Exchange and the rules of the Luxembourg Stock Exchange so require, the Issuer, or any Person acting on behalf of the Issuer, shall notify the Luxembourg Stock Exchange of any modification or supplement to this Indenture.
ARTICLE XIII
DEFEASANCE AND DISCHARGE
DEFEASANCE AND DISCHARGE
SECTION 13.1 Satisfaction and Discharge of Indenture.
(a) Subject to paragraph (b), the Issuer’s obligations under the Notes and this Indenture, and each Note Guarantor’s obligations under its Note Guarantee, will terminate if:
(i) (A) all Notes previously authenticated and delivered (other than (1) destroyed, lost or stolen Notes that have been replaced or (2) Notes that are paid pursuant to Section 2.15 or (3) Notes for whose payment U.S. dollars and/or U.S. Government Obligations have been held in trust and then repaid to the Issuer pursuant to Section 13.5) have been delivered to the Indenture Trustee for cancellation and the Issuer has paid all sums payable by it hereunder; or
(B) (1) the Notes mature within sixty days, or all of them are to be called for redemption (provided any such redemption date shall be irrevocably designated by an Officer’s Certificate of the Issuer delivered to the Indenture Trustee on or prior to the date of deposit and shall be accompanied by an irrevocable request that the Indenture Trustee give notice of redemption to the Noteholders not less than 10 nor more than 60 days prior to such redemption date in accordance with this Indenture and including a form of such redemption notice including all information required to be set forth therein), under arrangements satisfactory to the Indenture Trustee for giving the notice of redemption,
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(2) the Borrower irrevocably prepays the Loan and causes the Lender to deposit in trust with the Indenture Trustee or a Note Guarantor irrevocably deposits in trust with the Indenture Trustee, as trust funds solely for the benefit of the Noteholders, money and/or U.S. Government Obligations or a combination thereof in such amounts as shall be, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate delivered to the Indenture Trustee, sufficient without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be, and to pay all other sums payable by it hereunder,
(3) no Default has occurred and is continuing on the date of the deposit, and
(4) the deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound; and
(ii) the Issuer delivers to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the satisfaction and discharge of this Indenture have been complied with.
(b) After satisfying the conditions in clauses (i)(A) and (ii), only the Issuer’s obligations in Sections 9.5, 3.3 and 2.16 shall survive. After satisfying the conditions in clauses (i)(B) and (ii), only the Issuer’s and the Note Guarantors’ obligations in Article II and Sections 6.1, 6.12, 8.7, 8.8, 9.5, 9.8, 9.9, 13.5, 13.6, 14.1(a), the last sentence of Section 14.4, Sections 14.7 and 14.12 will survive. In either case, the Indenture Trustee upon the Issuer’s request will acknowledge in writing the discharge of the Issuer’s obligations under the Notes and this Indenture other than the surviving obligations.
SECTION 13.2 Legal Defeasance. After the 123rd day following the deposit referred to in clause (a) below, the Issuer will be deemed to have paid and will be discharged from its obligations in respect of the Notes and this Indenture, other than its obligations in Article II and Sections 6.1, 6.12, 8.7, 8.8, 9.5, 9.8, 9.9, 13.5, 13.6 and 14.12, and each Note Guarantor’s obligations under its Note Guarantee will terminate, provided the following conditions have been satisfied:
(a) The Borrower has irrevocably prepaid the Loan and caused the Lender to deposit in trust with the Indenture Trustee, as trust funds solely for the benefit of the Noteholders, money or U.S. Government Obligations or a combination thereof sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certificate thereof delivered to the Indenture Trustee, without consideration of any reinvestment, to pay principal of and interest on the Notes to maturity or redemption, as the case may be, provided that any redemption before maturity has been irrevocably provided for under arrangements satisfactory to the Indenture Trustee;
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(b) No Default has occurred and is continuing on the date of the deposit or occurs at any time during the 123-day period following the deposit;
(c) The deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer is a party or by which it is bound;
(d) The Issuer has delivered to the Indenture Trustee:
(i) either (x) a ruling received from the Internal Revenue Service to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case or (y) an Opinion of Counsel stating that, as a result of an Internal Revenue Service ruling or a change in applicable federal income tax law, the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance and will be subject to U.S. federal income tax on the same amount and in the same manner and at the same times as would otherwise have been the case, and
(ii) an Opinion of Counsel to the effect that after the passage of 123 days following the deposit, the trust funds will not be subject to the effect of Section 547 of the United States Bankruptcy Code or Section 15 of the New York Debtor and Creditor Law; and
(e) The Issuer has delivered to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, in each case stating that all conditions precedent provided for herein relating to the defeasance have been complied with. After the expiration of the 123rd day referred to above, the Indenture Trustee, upon the written request and at the expense of the Issuer, will acknowledge in writing the discharge of the Issuer’s obligations under the Notes and this Indenture except for the surviving obligations specified above.
SECTION 13.3 Covenant Defeasance. After the 123rd day following the deposit referred to in Section 13.2(a), the Parent Note Guarantors’ will no longer be subject to the obligations set forth in Sections 7.1 through 7.3, Section 7.7 and Section 7.15(a)(iii), and Sections 10(c), 10(d), 10(e) and 10(f) of the Credit and Guaranty Agreement will no longer constitute Loan Events of Default, provided the following conditions have been satisfied:
(a) the Issuer has complied with clauses (a), (b), (c), d(ii) and (e) of Section 13.2; and
(b) the Issuer has delivered to the Indenture Trustee either (x) a ruling received from the Internal Revenue Service to the effect that the beneficial owners of the Notes will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the defeasance and will be subject to U.S. federal income tax on the same amount and in the same
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manner and at the same times as would otherwise have been the case or (y) an Opinion of Counsel to the same effect as the ruling described in clause (x).
Except as specifically stated above in this Section 13.3, none of the Issuer’s obligations under this Indenture will be discharged.
SECTION 13.4 Application of Trust Money. Subject to Section 13.5, the Indenture Trustee will hold in trust the money or U.S. Government Obligations deposited with it pursuant to Sections 13.1, 13.2 or 13.3, and apply the deposited money and the proceeds from deposited U.S. Government Obligations to the payment of principal of and interest on the Notes in accordance with the Notes and this Indenture. Such money and U.S. Government Obligations need not be segregated from other funds except to the extent required by law.
SECTION 13.5 Repayment to Issuer. Subject to Sections 9.5, 9.17, 13.1, 13.2 and 13.3, the Indenture Trustee will promptly pay to the Issuer upon request any excess money held by the Indenture Trustee at any time and thereupon be relieved from all liability with respect to such money. The Indenture Trustee will pay to the Issuer upon request any money held for payment with respect to the Notes that remains unclaimed for two years, provided that before making such payment the Indenture Trustee may (but shall be under no obligation to) at the expense of the Issuer send to each Noteholder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Issuer. After payment to the Issuer, Noteholders entitled to such money must look solely to the Issuer for payment, unless applicable law designates another Person, and all liability of the Indenture Trustee with respect to such money will cease.
SECTION 13.6 Reinstatement. If and for so long as the Indenture Trustee or any Paying Agent is unable to apply any money or U.S. Government Obligations held in trust pursuant to Section 13.1, 13.2 or 13.3 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Issuer’s and the Note Guarantors’ obligations under this Indenture and the Notes will be reinstated as though no such deposit in trust had been made. If the Issuer or any Note Guarantor makes any payment of principal of or interest on any Notes because of the reinstatement of its obligations, it will be subrogated to the rights of the Noteholders of such Notes to receive such payment from the money or U.S. Government Obligations held in trust.
ARTICLE XIV
NOTE GUARANTEES
NOTE GUARANTEES
SECTION 14.1 Guarantees.
(a) Upon the receipt by the Borrower of the net proceeds of the Loan, each of the Note Guarantors hereby absolutely, unconditionally and irrevocably guarantees, jointly and severally, to the Indenture Trustee, on behalf of itself (in each of its capacities under this Indenture) and the Noteholders (each, a “Note Guarantee” and collectively, the “Note
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Guarantees”) (i) the punctual payment of the Notes, and (ii) the performance of all other obligations of the Issuer under this Indenture and the Notes (net, in each case, any amounts paid by the Borrower in accordance with the Credit and Guaranty Agreement, whether or not those amounts have been paid to the Issuer or the Indenture Trustee in accordance with the terms of the Participation Agreement and this Indenture) (such payments and obligations being the “Guaranteed Obligations”).
Each Note Guarantor hereby guarantees the full punctual payment when due, whether at the expected Maturity Date, by acceleration, redemption or otherwise, of the principal of, premium, if any, and interest, if any, in respect of amounts constituting Guaranteed Obligations and agrees to pay any and all fees and expenses (including, without limitation, fees and expenses of counsel) incurred by the Indenture Trustee in enforcing any rights under the Notes Guarantees or any other Transaction Document or otherwise owed to the Indenture Trustee under this Indenture or any other Transaction Document. Each Note Guarantor hereby agrees that, immediately upon its receipt of notice of nonpayment or nonperformance of the Borrower or the Issuer by the Indenture Trustee (acting at the written direction of the Required Holders), such Note Guarantor shall make immediate payment to the Indenture Trustee in U.S. dollars of the applicable Guaranteed Obligations. Each Note Guarantee is a Guarantee of payment and compliance and is in no way conditioned or contingent upon any attempt to collect from or compliance by the Borrower or the Issuer or upon any other event, contingency or circumstance whatsoever. Without limiting the generality of the foregoing, each Note Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower or the Issuer to the Indenture Trustee under or in respect of the Transaction Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Borrower or the Issuer.
Notwithstanding any provision herein to the contrary, in the event that the Borrower pays the Lender the amounts due and owed under the Credit and Guaranty Agreement and the Lender fails to make the required payments to the Issuer pursuant to the Participation and the Participation Agreement, the Note Guarantees shall not be available with respect to such amounts.
(b) All amounts payable by each Note Guarantor under its respective Note Guarantee shall be payable in U.S. dollars and in same day funds to the Indenture Trustee at the account specified by the Indenture Trustee.
(c) Each of the Note Guarantors hereby confirms, and by its acceptance of a Note, each Noteholder is deemed to confirm, that it is the intention of all such Persons that these Note Guarantees and the obligations of the Note Guarantors hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar Guatemalan or other international, foreign or U.S. federal or state law to the extent applicable to these Note Guarantees and the obligations of the Guarantors hereunder. To effectuate the foregoing intention, the Indenture Trustee and each Guarantor hereby irrevocably agree that the obligations of such Guarantor under its respective Note Guarantee at any time shall be limited to the maximum amount as will result in the obligations of such Guarantor under its respective Note
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Guarantee not constituting a fraudulent transfer or conveyance. For purposes hereof, “Bankruptcy Law” means any proceeding of the type referred to in Title 11, U.S. Code, or any similar foreign, federal or state law for the relief of debtors.
(d) Each Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to the Indenture Trustee (acting at the written direction of the Required Holders) under its respective Note Guarantee, such Guarantor will contribute, to the maximum extent permitted by law, such amounts so as to maximize the aggregate amount paid to the Indenture Trustee under or in respect of the Transaction Documents.
(e) Each Guarantor’s obligations under its Note Guarantee will be unsecured, and, in the event of such Guarantor’s bankruptcy, liquidation or dissolution under Guatemalan law, will rank pari passu in right of payment with all other present and future senior, unsecured and unsubordinated indebtedness of such Guarantor, but effectively junior to their present and future secured obligations, with respect to the value of the assets securing such indebtedness, and statutory obligations resulting under applicable Law.
SECTION 14.2 Release of Note Guarantors.
Other than the Note Guarantee of the Borrower, the Note Guarantee of a Note Guarantor will terminate upon: (1) a sale or other disposition (including by way of consolidation or merger) of such Note Guarantor or the sale or disposition of all or substantially all the assets of such Note Guarantor (other than to another Note Guarantor) otherwise permitted by this Indenture, provided that in the case of a sale of a Note Guarantor by an entity that is not another Note Guarantor, such release and termination shall not be effective unless (i) the sale is consummated in compliance with Section 7.7(a) (1) and (2) and (ii) the seller, whether or not party to this Indenture, or another Note Guarantor, makes an Asset Sale Offer in accordance with the terms of Section 7.7(a) in the amount of (A) the Net Available Proceeds of such sale (provided such amount, taken together with any other funds available for similar use from all prior similar sales or Asset Dispositions in the same fiscal year and not so used exceed US$30,000,000) or, (B) assuming the investment of any such proceeds in compliance with clause (3) of the first paragraph of Section 7.7(a) with respect to the remaining Note Guarantors, the Excess Proceeds (provided such amount (having deducted any amount used to purchase, prepay, repay or reduce Debt of a Parent Note Guarantor that is secured or pari passu with the Notes or Debt of an Restricted Subsidiary that is not a Note Guarantor), taken together with any other funds available for similar use from all prior similar sales or Asset Dispositions in the same fiscal year and not so used exceed US$30,000,000); or (2) the designation of such Note Guarantor as an Unrestricted Subsidiary or such Note Guarantor otherwise ceases to be a Restricted Subsidiary, in accordance with this Indenture.
SECTION 14.3 Future Note Guarantors.
(a) Each of the Parent Note Guarantors agrees to cause any Restricted Subsidiary that is not a Note Guarantor to promptly execute a supplemental indenture and deliver an Officer’s Certificate and Opinion of Counsel to the Indenture Trustee pursuant to which such
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Restricted Subsidiary (each, a “Subsidiary Guarantor”) will provide a Note Guarantee at the times and to the extent required by Sections 14.3(b), (c) and (d) and on the conditions described in this Article XIV.
(b) If any Parent Note Guarantor or a Restricted Subsidiary acquires or creates any Significant Subsidiary on or after the date hereof, then that newly acquired or created Significant Subsidiary shall provide a Note Guarantee and become a Note Guarantor hereunder in accordance with Section 14.3(a); provided that (i) such Significant Subsidiary’s Note Guarantee will be limited to the maximum amount that would not result in a breach or violation by such Significant Subsidiary of any provision of any agreement to which it is party existing at the time of such acquisition or creation; provided, that such provision was not adopted in connection with, or in contemplation of, such acquisition or creation or to avoid providing a Note Guarantee, and (ii) such Significant Subsidiary will not be required to execute any such supplemental indenture if (a) such Significant Subsidiary has any minority shareholders representing, in the aggregate, more than 30% of the outstanding Capital Stock of such Significant Subsidiary and the execution of such supplemental indenture would result in a breach or violation by such Significant Subsidiary or the relevant Parent Note Guarantor of any provision of any agreement to which such minority shareholders, such Significant Subsidiary or the relevant Parent Note Guarantor, as applicable; provided, that such provision was not adopted to avoid providing a Note Guarantee, or (b) the execution or enforcement of such supplemental indenture and the resultant Note Guarantee thereunder is prohibited by, or in violation of, any applicable law to which such Significant Subsidiary is subject and the Borrower has delivered to the Indenture Trustee an Opinion of Counsel to that effect. Notwithstanding the foregoing, if at the time of such acquisition or creation, such Significant Subsidiary has no Debt, such Significant Subsidiary shall not be required to become a Subsidiary Guarantor or provide a Note Guarantee; provided that if at any time after such acquisition or creation, such Significant Subsidiary Incurs any Debt, at the time of such Incurrence such Significant Subsidiary will become a Subsidiary Guarantor in accordance with Section 14.3(a).
(c) The Parent Note Guarantors represent that (i) the Combined EBITDA of the Note Guarantors (taken together on a standalone basis) for the twelve month period ended September 30, 2021, represents more than 80% of Combined EBITDA of the Parent Note Guarantors and their Subsidiaries for such reference period, and (ii) the Combined Total Assets of the Note Guarantors (taken together on a standalone basis) as of September 30, 2021 represents more than 80% of Combined Total Assets of the Parent Note Guarantors and their Subsidiaries as such date.
Notwithstanding the foregoing, from time to time, if as of the end of the period of four full fiscal quarters most recently ended (the “reference period”), (i) Combined EBITDA of the Note Guarantors (taken together on a standalone basis) for such reference period represents less than 80% of Combined EBITDA of the Parent Note Guarantors and their Subsidiaries for such reference period or (ii) Combined Total Assets of the Note Guarantors (taken together on a standalone basis) as of the end of such reference period represent less than 80% of Combined Total Assets of the Parent Note Guarantors and their Subsidiaries as of the end of such reference period, the Parent Note Guarantors will, promptly following the date on which the combined financial statements of the Parent Note Guarantors for the fiscal quarter ended on the last day of
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such reference period become available, cause one or more Restricted Subsidiaries to become Subsidiary Guarantors, subject to applicable legal limitations, in accordance with Section 14.3(a) and, in addition, provide the Indenture Trustee with an Officer’s Certificate of such Note Guarantor to the effect that after giving effect to the delivery of the Note Guarantee, the Combined EBITDA and assets of the Note Guarantors (taken together on a standalone basis) in aggregate represent at least 80% of the (x) Combined Total Assets of the Parent Note Guarantors and their Subsidiaries as of the end of such reference period, and (y) Combined EBITDA of the Note Guarantors and their Subsidiaries for such reference period. If the execution or enforcement of a supplemental indenture and the resultant Note Guarantee thereunder with respect to a certain Restricted Subsidiary is prohibited by, or in violation of, any applicable law to which such Restricted Subsidiary is subject and the Borrower has delivered to the Indenture Trustee an Opinion of Counsel to that effect, then, such Restricted Subsidiary shall not be required to become a Subsidiary Guarantor; provided, however that, such exemption to cause such Restricted Subsidiary to become a Subsidiary Guarantor, shall not release the Parent Note Guarantor to comply with this paragraph by causing other Restricted Subsidiaries not so restricted to become Subsidiary Guarantors.
(d) The Note Guarantors will not permit any Restricted Subsidiary, directly or indirectly, to Guarantee any Debt of any Note Guarantor unless such Restricted Subsidiary (a) is a Note Guarantor or (b) becomes a Note Guarantor and provides a Note Guarantee in accordance with Section 14.3(a), which Note Guarantee will rank senior in right of payment to or equally in right of payment with such Restricted Subsidiary’s Guarantee of such other Debt.
SECTION 14.4 Guarantees Absolute. Each Note Guarantor guarantees that the Guaranteed Obligations will be paid in accordance with the terms of the Transaction Documents, regardless of whether or not the Issuer has received payment. The obligations of each Note Guarantor under or in respect of its respective Note Guarantee are independent of the Guaranteed Obligations or any other obligations of the Issuer or the Borrower under or in respect of the Transaction Documents, and a separate action or actions may be brought and prosecuted against each Note Guarantor to enforce its respective Note Guarantee, irrespective of whether any action is brought against the Issuer or the Borrower or whether any of the Issuer or the Borrower is joined in any such action or actions. The liability of each Note Guarantor under its respective Note Guarantee shall be irrevocable, absolute and unconditional, and joint and several, and shall remain in full force and effect until all the Guaranteed Obligations have been paid and satisfied in full, irrespective of, and each Note Guarantor hereby irrevocably waives, any defenses it may now have or hereafter acquire in any way relating to, any or all of the following:
(a) any lack of authorization, validity or enforceability of any Transaction Document or any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or any other obligations of the Issuer or the Borrower under or in respect of the Transaction Documents, or any other amendment or waiver of or any consent to departure from any Transaction Document, including, without limitation, any increase in the Guaranteed Obligations resulting from the extension of additional credit to the Issuer or the Borrower or any of its Subsidiaries or otherwise;
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(c) any taking, exchange, release or non-perfection of any collateral, or any taking, release or amendment or waiver of, or consent to departure from, any other Guarantee, for all or any of the Guaranteed Obligations;
(d) any manner of application of any collateral, or proceeds thereof, to all or any of the Guaranteed Obligations, or any manner of sale or other disposition of any collateral for all or any of the Guaranteed Obligations or any other obligations of the Issuer or the Borrower under the Transaction Documents or any other assets of the Issuer or the Borrower or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate structure or existence of the Issuer or the Borrower or any of its Subsidiaries;
(f) the failure of any other Person to execute or deliver its Note Guarantee or any other Guarantee or agreement or the release or reduction of liability of such Note Guarantor (or any other guarantor or surety with respect to the Guaranteed Obligations); or
(g) any other circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by the Indenture Trustee that might otherwise constitute a defense available to, or a discharge of, the Issuer or the Borrower or any other guarantor or surety.
The Note Guarantors’ obligations under the Note Guarantees will remain in full force and effect until all the Guaranteed Obligations have been paid or satisfied in full. The Note Guarantees shall continue to be effective or be reinstated, as the case may be, if at any time any payment of all or any portion of the Guaranteed Obligations is rescinded or must otherwise be returned by the Indenture Trustee or any Noteholder upon the insolvency, bankruptcy or reorganization of the Lender, the Issuer, any Guarantor or the Borrower, all as though such payment had not been made.
SECTION 14.5 Waivers and Acknowledgments.
(a) Each Note Guarantor hereby unconditionally and irrevocably waives promptness, diligence, notice of acceptance, presentment, demand for performance, notice of nonperformance, default, acceleration, protest or dishonor and any other notice with respect to any of the Guaranteed Obligations and its respective Note Guarantee and any requirement that the Indenture Trustee or any Noteholder protect, secure, perfect or insure any lien, pledge or other encumbrance or any property subject thereto or exhaust any right or take any action against the Issuer, the Borrower or any other Person or any collateral for any of the Guaranteed Obligations.
(b) Each Note Guarantor hereby unconditionally and irrevocably waives any right to revoke its respective Note Guarantee and acknowledges that such Note Guarantee is continuing in nature and applies to all Guaranteed Obligations, whether existing now or in the future.
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(c) To the extent that any Note Guarantor may in any jurisdiction claim for itself or its respective assets immunity from a suit, execution, attachment, whether in aid of execution, before judgment or otherwise, or other legal process in connection with its respective Note Guarantee (or the Credit and Guaranty Agreement) and to the extent that in any jurisdiction there may be immunity attributed to such Note Guarantor or its respective assets, whether or not claimed, such Note Guarantor hereby irrevocably agrees with the Indenture Trustee and the Noteholders not to claim, and irrevocably waive, immunity to the full extent permitted by Law.
(d) Each Note Guarantor hereby unconditionally and irrevocably waives (i) any defense arising by reason of any claim or defense based upon an election of remedies by the Indenture Trustee or any Noteholder that in any manner impairs, reduces, releases or otherwise adversely affects the subrogation, reimbursement, exoneration, contribution or indemnification rights of such Note Guarantor or other rights of such Note Guarantor to proceed against any of the other parties to the Transaction Documents, any other guarantor or any other Person or any collateral for any of the Guaranteed Obligations and (ii) any defense based on any right of set-off or counterclaim against or in respect of the obligations of such Note Guarantor hereunder.
(e) Each Note Guarantor acknowledges that the Indenture Trustee and any Noteholder may, without notice to or demand upon such Note Guarantor and without affecting the liability of such Note Guarantor under its respective Note Guarantee, foreclose under any mortgage by nonjudicial sale, and such Note Guarantor hereby waives any defense to the recovery by the Indenture Trustee or any Noteholder against such Note Guarantor of any deficiency after such nonjudicial sale and any defense or benefits that may be afforded by applicable Law.
(f) Each Note Guarantor hereby unconditionally and irrevocably waives any duty on the part of the Indenture Trustee to disclose to such Note Guarantor any matter, fact or thing relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of the Issuer or the Borrower or any of its Subsidiaries now or hereafter known by the Indenture Trustee.
(g) Each Note Guarantor acknowledges that it will receive substantial direct and indirect benefits from the financing arrangements contemplated by the Transaction Documents and that the waivers set forth in Section 14.4 and this Section 14.5 are knowingly made in contemplation of such benefits.
SECTION 14.6 Subrogation. Each Note Guarantor hereby unconditionally and irrevocably agrees not to exercise any rights that it may now have or hereafter acquire against the Issuer or any other Person that arise from the existence, payment, performance or enforcement of such Note Guarantor’s obligations under or in respect of its respective Note Guarantee or any other Transaction Document, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification or any right to participate in any claim or remedy of the Indenture Trustee or any Noteholder against the Issuer or any other Person or any collateral, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from the Issuer, the Borrower or any other insider guarantor, directly or indirectly, in cash or other
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property or by set-off or in any other manner, payment or security on account of such claim, remedy or right, unless and until all of the Guaranteed Obligations and all other amounts payable under such Note Guarantee shall have been irrevocably paid in full in cash. If any amount shall be paid to any Note Guarantor in violation of the immediately preceding sentence at any time prior to the latest of (a) the irrevocable payment in full in cash of the Guaranteed Obligations and all other amounts payable under its respective Guarantee and (b) the Maturity Date, such amount shall be received and held in trust for the benefit of the Indenture Trustee, shall be segregated from other property and funds of such Note Guarantor and shall forthwith be paid or delivered to the Indenture Trustee in the same form as so received (with any necessary endorsement or assignment) to be credited and applied to the Guaranteed Obligations and all other amounts payable under such Note Guarantee, whether matured or unmatured, in accordance with the terms of the Transaction Documents, or to be held as collateral for any Guaranteed Obligations or other amounts payable under such Note Guarantee thereafter arising.
SECTION 14.7 Payments Free and Clear of Taxes, Etc. Each Note Guarantor will make any and all payments under its respective Note Guarantee free and clear of any Taxes; if any Taxes are required to be deducted or withheld, the Note Guarantor shall pay such additional amounts as may be necessary to ensure that the amounts received by the Noteholders, after giving effect to any such Taxes, will equal the respective amounts that would have been receivable in the absence of such Taxes, in the same manner and subject to the same exceptions as set forth in Section 2 of the Expense Reimbursement and Indemnity Agreement.
SECTION 14.8 Representations and Warranties. Each Note Guarantor hereby makes each representation and warranty made in the Transaction Documents by the Borrower with respect to such Note Guarantor and such Note Guarantor hereby further represents and warrants as follows:
(a) There are no conditions precedent to the effectiveness of its respective Note Guarantee that have not been satisfied or waived.
(b) Such Note Guarantor has independently and without reliance upon the Indenture Trustee and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to provide its respective Note Guarantee and enter into each Transaction Document to which it is or is to be a party, and such Note Guarantor has established adequate means of obtaining from the Issuer and the Borrower on a continuing basis information pertaining to, and is now and on a continuing basis will be completely familiar with, the business, condition (financial or otherwise), operations, performance, properties and prospects of the Issuer and the Borrower, respectively.
(c) Such Note Guarantor hereby unconditionally and irrevocably agrees that its obligations to make any payment under its respective Note Guarantee will rank pari passu with all of its other senior unsecured obligations that are not, by their terms, expressly subordinated in right of payment to the obligations of such Note Guarantor under its respective Note Guarantee.
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(d) Such Note Guarantor has been duly organized and is validly existing as a corporation in good standing under the laws of the Republic of Guatemala. Such Note Guarantor is licensed (if and to the extent necessary) and has the full corporate power and authority to enter into and perform its obligations under its respective Note Guarantee and the Transaction Documents to which it is a party.
(e) Its respective Note Guarantee, the Credit and Guaranty Agreement, and each other document executed and delivered in connection therewith to which such Note Guarantor is party has been duly authorized and, assuming due authorization, execution and delivery thereof by each other party to those Transaction Documents (other than such Note Guarantor), when executed and delivered by such Note Guarantor, will constitute a legal, valid and binding agreement of such Note Guarantor, enforceable against such Note Guarantor in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors’ rights generally from time to time in effect and to general principles of equity).
(f) No consent, approval, authorization, filing with or order of any governmental authority is required for the execution, delivery or performance by such Note Guarantor of any of its obligations under its respective Note Guarantee, including, without limitation, making any of the applicable payments required to be made on or after the date hereof under or in respect of any of the Transaction Documents other than any such authorization, approval, action, notice or filing which has been obtained or made, as the case may be, prior to the date hereof and is in full force and effect on the date hereof.
(g) Such Note Guarantor is currently not in violation of its charter, by-laws or comparable organizational documents; neither the execution and delivery of any of the Transaction Documents nor the consummation of any of the transactions described or contemplated therein, nor the fulfillment of the terms thereof will conflict with, or give rise to any right to accelerate the maturity or require the prepayment, repurchase or redemption of any indebtedness under, or result in a breach or violation or imposition of any lien, charge or encumbrance upon any property or assets of such Note Guarantor or any of its Subsidiaries pursuant to, (i) their respective charter, by-laws or comparable organizational documents, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which they are a party or bound or to which any of their property or assets is subject or (iii) any statute, law, rule, regulation, judgment, order or decree applicable to them, except in the case of clauses (ii) or (iii) such as could not reasonably be expected to have a Material Adverse Effect.
(h) Such Note Guarantor has filed or caused to be filed all material Tax returns that are required to be filed by it, and has paid or caused to be paid all Taxes shown to be due and payable on such returns or on any material assessments received by it, other than any such Tax or assessment that is being contested in good faith and by proper proceedings diligently conducted and as to which appropriate reserves are being maintained or as would not have a Material Adverse Effect and except as set forth in or contemplated in the Offering Memorandum under the heading “Business—Legal and Administrative Proceedings.”
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SECTION 14.9 Covenants.
(a) Each Note Guarantor covenants and agrees that, so long as any part of the Guaranteed Obligations shall remain unpaid, such Note Guarantor will perform and observe all of the terms, covenants and agreements set forth in the Credit and Guaranty Agreement and other Transaction Documents on its or their part to be performed or observed or that the Borrower has agreed to cause such Note Guarantor to perform or observe, and understands that failure to be in compliance with such covenants shall constitute an event of default under the Credit and Guaranty Agreement.
(b) Each Note Guarantor agrees that, if a judgment or order made by any court for the payment of any amount in respect of any of its obligations under its respective Note Guarantee is expressed in a currency other than U.S. dollars, it will indemnify each of the Indenture Trustee, and the Noteholders, against any deficiency arising from any variation in rates of exchange between the date as of which the denomination currency is notionally converted into the judgment currency for the purposes of the judgment or order and the date of actual payment. This indemnity will constitute a separate and independent obligation from such Note Guarantor’s other obligations under its respective Note Guarantee, will give rise to a separate and independent cause of action, will apply irrespective of any waiver of such indemnity by the Lender under Section 14 of the Credit and Guaranty Agreement (or waiver by the Lender of any other provision of the Credit and Guaranty Agreement or such Note Guarantor’s respective Loan Guarantee) granted from time to time and will continue in full force and effect notwithstanding any judgment or order for a liquidated sum or sums in respect of amounts due in respect of the Credit and Guaranty Agreement or under any such judgment or order.
SECTION 14.10 [Reserved].
SECTION 14.11 No Waiver; Remedies. No failure on the part of the Indenture Trustee to exercise, and no delay in exercising, any right with respect to any Note Guarantee shall operate as a waiver thereof; nor shall any single or partial exercise of any right with respect to any Note Guarantee preclude any other or further exercise thereof or the exercise of any other right. The remedies herein provided with respect to any Note Guarantee are cumulative and not exclusive of any remedies provided by Law.
SECTION 14.12 Indemnification.
(a) Without limitation on any other obligations of the Note Guarantors or remedies of the Indenture Trustee under the Note Guarantees, each Note Guarantor shall, jointly and severally, to the fullest extent permitted by law, indemnify, defend and save and hold harmless the Indenture Trustee, each Authorized Agent and each of its Affiliates and its respective officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against, and shall pay on demand, any and all claims, damages, losses, liabilities and expenses (including, without limitation, reasonable fees and expenses of counsel) that may be incurred by or asserted or awarded against any Indemnified Party in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Issuer enforceable against the Issuer in accordance with their terms.
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(b) Each Note Guarantor hereby (i) also agrees that none of the Indemnified Parties shall have any liability (whether in contract, tort or otherwise) to such Note Guarantor or any of its Affiliates or any of their respective officers, directors, employees, agents and advisors, and (ii) agrees not to assert any claim against any Indemnified Party on any theory of liability for special, indirect, consequential or punitive damages arising out of or otherwise relating to this Indenture, the Credit and Guaranty Agreement, the actual or proposed use of the proceeds of the Loan, the Transaction Documents or any of the transactions contemplated by the Transaction Documents.
(c) Without prejudice to the survival of any of the other agreements of any Note Guarantor under its respective Note Guarantee or any of the other Transaction Documents, the agreements and obligations of each Note Guarantor contained in Section 13.6, Section 14.1(a) (with respect to enforcement expenses), the last sentence of Section 14.4, Section 14.7, this Section 14.12 shall survive the payment in full of the Guaranteed Obligations and all of the other amounts payable under the Note Guarantees.
SECTION 14.13 Subordination. Each Note Guarantor hereby subordinates any and all debts, liabilities and other obligations owed to such Note Guarantor by the Issuer (the “Subordinated Obligations”) to the Guaranteed Obligations to the extent and in the manner hereinafter set forth in this Section 14.13:
(a) Prohibited Payments, Etc. Except during the continuance of a Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to the Issuer), such Note Guarantor may receive regularly scheduled payments from the Issuer on account of the Subordinated Obligations, if any. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to the Issuer), however, unless the Indenture Trustee otherwise agrees, such Note Guarantor shall not demand, accept or take any action to collect any payment on account of the Subordinated Obligations.
(b) Prior Payment of Guaranteed Obligations. In any proceeding under any Bankruptcy Law relating to the Issuer, such Note Guarantor agrees that the Indenture Trustee shall be entitled to receive payment in full in cash of all Guaranteed Obligations (including all interest and expenses accruing after the commencement of a proceeding under any Bankruptcy Law, whether or not constituting an allowed claim in such proceeding (“Post Petition Interest”)) before such Note Guarantor receives payment of any Subordinated Obligations.
(c) Turn-Over. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to the Issuer), such Note Guarantor shall collect, enforce and receive payments on account of the Subordinated Obligations as trustee for the Indenture Trustee and deliver such payments to the Indenture Trustee on account of the Guaranteed Obligations (including all Post Petition Interest), together with any necessary endorsements or other instruments of transfer, but without reducing or affecting in any manner the liability of such Note Guarantor under the other provisions of its respective Note Guarantee.
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(d) Indenture Trustee Authorization. After the occurrence and during the continuance of any Default (including the commencement and continuation of any proceeding under any Bankruptcy Law relating to the Trust), the Indenture Trustee is authorized and empowered (but without any obligation to so do), (i) in the name of such Note Guarantor, to collect and enforce, and to submit claims in respect of, Subordinated Obligations and to apply any amounts received thereon to the Guaranteed Obligations (including any and all Post Petition Interest), and (ii) to require such Note Guarantor (A) to collect and enforce, and to submit claims in respect of, Subordinated Obligations and (B) to pay any amounts received on such obligations to the Indenture Trustee for application to the Guaranteed Obligations (including any and all Post Petition Interest).
SECTION 14.14 Continuing Guarantee; Assignments. The Note Guarantees are continuing Guarantees and will continue to be effective or may be reinstated if at any time any payment of all or any portion of the Guaranteed Obligations is rescinded or must otherwise be returned by the Indenture Trustee upon the insolvency, bankruptcy or reorganization of the Lender, the Cayman Trustee or any Note Guarantor, all as though such payment had not been made. No Note Guarantor may assign its rights or obligations hereunder except in accordance with Section 7.15. Each Note Guarantee and all rights therein will be assigned to, and continue in full force and effect for the benefit of, any person to whom this Indenture and the Notes are assigned. The covenants of the Borrower contained in the Credit and Guaranty Agreement will be deemed made by each of the Note Guarantors in its respective Note Guarantee for the benefit of the Indenture Trustee and the Noteholders.
ARTICLE XV
MISCELLANEOUS
MISCELLANEOUS
SECTION 15.1 Compliance Certificates and Opinions.
(a) Upon any application or request by the Issuer or any Note Guarantor to the Indenture Trustee that the Indenture Trustee take any action or refrain from taking any action under any provision of this Indenture, the Issuer or such Note Guarantor shall furnish to the Indenture Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with and that in the opinion of such counsel all such conditions precedent, if any, have been complied with.
(b) Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(i) a statement substantially to the effect that each individual signing such certificate or opinion has read such covenant or condition;
(ii) a brief statement substantially to the effect as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
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(iii) a statement that, in the opinion of each such individual, such examination or investigation has been made as is necessary to enable such individual to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 15.2 Officer’s Certificate; Form of Documents Delivered to Indenture Trustee.
(a) 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 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.
(b) Any certificate or opinion of an Authorized Representative of the Issuer or officer of any other Person may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Authorized Representative or officer knows or has reason to believe that the certificate or opinion or representations with respect to the matters upon which such Officer’s Certificate or opinion is based are erroneous or otherwise inaccurate. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate of, or representations by, an Authorized Representative of the Issuer stating that the information with respect to such factual matters is in the possession of the Issuer, unless such counsel knows that the certificate or representations with respect to such matters are erroneous.
(c) Any Opinion of Counsel stated to be based on the opinion of other counsel shall be accompanied by a copy of such other opinion.
(d) Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 15.3 Notices, etc. Any Act of Noteholders, notice, request certificate, instruction or other document required or permitted to be delivered to the Issuer, the Indenture Trustee or any Note Guarantor by this Indenture, the Notes or any other Transaction Document shall be deemed to have been made or given, as applicable, only if such document is in writing, in English, and delivered personally, or by registered or certified first-class United States mail with postage prepaid and return receipt requested, or made, given or furnished in writing by confirmed facsimile transmission or other electronic transmission, or by prepaid courier service to the appropriate party as set forth below:
Indenture Trustee, Registrar, Paying Agent and Transfer Agent:
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The Bank of New York Mellon
240 Greenwich Street, Floor 7 West
New York, New York 10286
Attn: Corporate Trust Administration
With a copy to:
The Bank of New York Mellon
385 Rifle Camp Road, 3rd Floor
Woodland, Park, NJ 07424
Attention: Alicia Coronado / Structured Cross-Border
E-Mail: Alicia.coronado@bnymellon.com
E-Mail: Alicia.coronado@bnymellon.com
Issuer:
CT Trust, c/o Walkers Fiduciary Limited
Walkers Fiduciary Limited
190 Elgin Avenue
George Town
Grand Cayman KY1-9008
Cayman Islands
With copies to:
Comunicaciones Celulares, S.A.
Km 9.5 Carretera al Salvador (CA1)
Plaza Tigo, 4to nivel Torre 1,
Santa Catarina Pinula, Guatemala
Attention: Legal Department
Telephone No: (502) 2428-0000
Note Guarantors:
Comunicaciones Celulares, S.A.,
Cloud2Nube, S.A.
Comunicaciones Corporativas, S.A.,
Distribuidora Central de Comunicaciones, S.A.,
Distribuidora de Comunicaciones de Occidente, S.A.,
Distribuidora de Comunicaciones de Oriente, S.A.,
Distribuidora Internacional de Comunicaciones, S.A.,
Navega.com, S.A.,
Servicios Especializados en Telecomunicaciones, S.A. and
Servicios Innovadores de Comunicación y Entretenimiento, S.A.
c/o Comunicaciones Celulares, S.A.
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Km 9.5 Carretera al Salvador (CA1)
Plaza Tigo, 4to nivel Torre 1,
Santa Catarina Pinula, Guatemala
Attention: Legal Department
E-mail: msisniega@tigo.com.gt and cnavarrete@tigo.com.gt
Any party may change its address by giving notice of such change in the manner set forth herein. Any notice given to a party shall be deemed delivered upon receipt thereof.
SECTION 15.4 Notices to Noteholders; Waiver. (a) Where this Indenture provides for notice to Noteholders of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if
(i) the notice is to be provided to Noteholders of non-Global Notes, such notice is in writing and mailed, first class postage prepaid, to such Noteholders, at their addresses as they appear in the Note Register; and
(ii) the notice is to be provided to Noteholders of Global Notes, such notice is given to the Registered Depositary in accordance with its Applicable Procedures,
in each case not later than the latest date, if any, and not earlier than the earliest date, if any, prescribed for the giving of such notice
Each Person owning a beneficial interest in a Global Note who is not a participant in Registered Depositary must rely on the procedures of the participant through which the Person owns its interest in the Global Note to receive notices provided to Registered Depositary.
(b) In addition, from and after the date the Notes are listed on the Official List of the Luxembourg Stock Exchange and so long as it is required by the rules of such exchange, all notices to Noteholders will be published by the Note Guarantors in English on the website of the Luxembourg Stock Exchange at www.bourse.lu. The Note Guarantors (and not the Indenture Trustee) shall have the sole responsibility for ensuring notices are sent in accordance with the requirements of the Luxembourg Stock Exchange.
(c) Notices to Noteholders will be deemed to have been given on the date of delivery to the Registered Depositary or mailing, as applicable, or of publication as aforesaid or, if published on different dates, on the date of the first such publication.
(d) Where this Indenture provides for notice, 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 Noteholders shall be filed with the Indenture Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver. In any case where notice to Noteholders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Noteholder shall affect the sufficiency of such notice with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given.
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SECTION 15.5 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 15.6 Successors and Assigns. All covenants, agreements, representations and warranties in this Indenture by the Issuer and the Note Guarantors and all covenants and agreements in this Indenture by the Indenture Trustee shall bind and, to the extent permitted hereby, shall inure to the benefit of and be enforceable by their respective successors and assigns, whether so expressed or not.
SECTION 15.7 Severability Clause. In case any provision in this Indenture, the Notes or any Note Guarantee 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 15.8 Benefits of Indenture. Nothing in this Indenture or in the Notes, expressed or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 15.9 Legal Holidays. In any case where any Payment Date, shall not be a Business Day, then (notwithstanding any other provision of this Indenture or the Notes to the contrary) payment of interest, principal and/or any other amount due and owing need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Payment Date and, if such payment is timely made, no interest shall accrue on the payment so deferred for the period from and after such Payment Date, to the date of such payment.
SECTION 15.10 Currency Rate Indemnity.
(a) The Issuer shall (to the extent lawful) indemnify the Indenture Trustee and the Noteholders and keep them indemnified against:
(i) in the case of nonpayment by the Issuer of any amount due to the Indenture Trustee or the Noteholders under this Indenture or any Note, any loss or damage incurred by any of them arising by reason of any variation between the rates of exchange used for the purposes of calculating the amount due under a judgment or order in respect thereof and those prevailing at the date of actual payment by the Issuer; and
(ii) any deficiency arising or resulting from any variation in rates of exchange between (i) the date as of which the local currency equivalent of the amounts due or contingently due under this Indenture or in respect of the Notes is calculated for the purposes of any bankruptcy, insolvency or liquidation of the Issuer, and (ii) the final date for ascertaining the amount of claims in such bankruptcy, insolvency or liquidation. The amount of such deficiency shall be deemed not to be increased or reduced by any variation in rates of exchange occurring between the said final date and the date of any
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bankruptcy, insolvency or liquidation or any distribution of assets in connection therewith.
(b) The Issuer agrees that, if a judgment or order given or made by any court for the payment of any amount in respect of its obligations hereunder is expressed in a currency (the “Judgment Currency”) other than U.S. dollars (the “Denomination Currency”), it will indemnify each of the Indenture Trustee and the relevant Noteholder against any deficiency arising or resulting from any variation in rates of exchange between the date at which the amount in the Denomination Currency is notionally converted into the amount in the Judgment Currency for the purposes of such judgment or order and the date of actual payment thereof.
(c) The above indemnities shall constitute separate and independent obligations of the Issuer from its obligations hereunder, will give rise to separate and independent causes of action, will apply irrespective of any indulgence granted from time to time and will continue in full force and effect notwithstanding any judgment or the filing of any proof or proofs in any bankruptcy, insolvency or liquidation of the Issuer for a liquidated sum or sums in respect of amounts due under this Indenture or the Notes.
SECTION 15.11 Communication by Noteholders with other Noteholders. Noteholders may communicate with other Noteholders with respect to their rights under this Indenture and the Notes.
SECTION 15.12 Governing Law. This Indenture (including the Note Guarantees herein) and the Notes shall be governed by, and construed in accordance with, the laws of the State of New York.
SECTION 15.13 Waiver of Jury Trial. THE ISSUER, EACH NOTE GUARANTOR, THE INDENTURE TRUSTEE AND EACH HOLDER (PURSUANT TO ITS PURCHASE OF A NOTE) HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS INDENTURE, THE NOTES OR ANY NOTE GUARANTEE.
SECTION 15.14 Waiver of Immunity. This Indenture and any other documents delivered pursuant hereto, and any actions taken hereunder, constitute commercial acts by the Issuer and each Note Guarantor. Each of the Issuer and each Note Guarantor irrevocably and unconditionally and to the fullest extent permitted by Law, waives, and agrees not to plead or claim, any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) for itself of any of its property, assets or revenues wherever located with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Indenture, the Notes, any Note Guarantee, the Transaction Documents or any other document delivered pursuant hereto, in each case for the benefit of each assigns, it being intended that the foregoing waiver and agreement will be effective, irrevocable and not subject to withdrawal in any and all jurisdiction, and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 15.14 shall have the fullest scope permitted under the United
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States Foreign Sovereign Immunities Act of 1976 and are intended to be irrevocable for the purposes of such act.
SECTION 15.15 Submission to Jurisdiction, etc.
(a) The Issuer, each Note Guarantor and the Indenture Trustee irrevocably submit to the exclusive personal jurisdiction of any New York state or United States federal court located in the City of New York, New York in any action arising out of or relating to this Indenture, the Notes, the Note Guarantees or any of the other Transaction Documents to which each is or is to be a party, or for recognition or enforcement of any judgment, and the Issuer, each Note Guarantor and the Indenture Trustee hereby irrevocably and unconditionally agree that all claims in respect of such action or proceeding may be heard and determined in any such court of the State of New York or, to the extent permitted by Law, in such Federal court. The Issuer, each Note Guarantor and the Indenture Trustee irrevocably waive, to the fullest extent permitted by Law, any objection to any suit, action, or proceeding that may be brought in connection with this Indenture, the Notes, the Note Guarantees or any of the other Transaction Documents in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit, action or proceeding has been brought in an inconvenient forum. The Issuer, each Note Guarantor and the Indenture Trustee agree that final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Nothing in this Indenture, the Notes or any other Transaction Document shall affect any right that any party may otherwise have to bring any action or proceeding relating to this Indenture, the Notes or any other Transaction Document in the courts of any jurisdiction.
(b) Each of the Issuer and the Note Guarantors hereby irrevocably appoints and empowers C T Corporation System, located at 28 Liberty Street, New York, New York 10005 as its Authorized Agent (the “Process Agent”) to accept and acknowledge for and on its behalf and on behalf of its property service of any and all legal process, summons, notices and documents which may be served in any such suit, action or proceeding in any New York State court or United States Federal court sitting in the Borough of Manhattan, The City of New York, New York, United States and any appellate court from any thereof, which service may be made on such designee, appointee and agent in accordance with legal procedures prescribed for such courts. The Issuer and each Note Guarantor will take any and all action necessary to continue such designation in full force and effect and to advise the Indenture Trustee in writing of any change of address of such Process Agent; should such Process Agent become unavailable for this purpose for any reason, the Issuer and each Note Guarantor will promptly and irrevocably designate a new Process Agent within New York, New York, which will agree to act as such, with the powers and for the purposes specified in this subsection (b). Each of the Issuer and the Note Guarantors irrevocably consents and agrees to the service of any and all legal process, summons, notices and documents out of any of the aforesaid courts in any such action, suit or proceeding by hand delivery, to it at its address set forth in Section 15.3 or to any other address of which it shall have given notice pursuant to Section 15.3 or to its Process Agent. Service upon the Issuer or any Note Guarantor, as the case may be, or the Process Agent as provided for herein, will, to the fullest extent permitted by Law, constitute valid and effective personal service upon it, and the failure of the Process Agent to give any notice of such service to the Issuer or
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any Note Guarantor, as the case may be, shall not impair or affect in any way the validity of such service or any judgment rendered in any action or proceeding based thereon.
SECTION 15.16 Assignment.
(a) Under the Credit and Guaranty Agreement, the Lender’s interest in the Loan may not be assigned to any Person except in accordance with Section 14.04 of the Credit and Guaranty Agreement. In the event of the assignment of the Loan to the Issuer in accordance with Section 14.04 of the Credit and Guaranty Agreement, the Issuer will succeed to all rights of the Lender under the Credit and Guaranty Agreement and the Loan and, pursuant to the pledge of the Trust Assets contemplated herein, the Indenture Trustee, acting pursuant to the written instructions of the Required Holders (or such other percentage of Noteholders of Outstanding Notes as may be permitted or required pursuant to the terms of this Indenture), shall have the right to direct the Issuer with respect to all matters relating to the Credit and Guaranty Agreement and the Loan as contemplated under Section 11.6.
(b) Each Person who becomes a Noteholder or an owner of a beneficial interest in a Note shall be deemed to have consented to any subsequent assignment to the Issuer of all or any portion of the Credit and Guaranty Agreement, the Loan and the Expense Reimbursement and Indemnity Agreement.
SECTION 15.17 Power to Employ Agents and Advisors. The Issuer shall be entitled to appoint such agents and engage such advisors, as it may consider necessary or desirable in order to perform or satisfy its obligations under this Indenture, provided, however, that such delegation or appointment shall not release the Issuer’s obligations hereunder. The Issuer shall supervise the conduct of such agents or advisor and shall at all times remain liable for any acts or omissions of such agents or advisors to the same extent as if they were the Issuer’s own acts or omissions subject to Section 2.6.
SECTION 15.18 Execution in Counterparts. This Indenture and each amendment, waiver and consent with respect hereto may be executed in any number of counterparts and delivered by any standard form of telecommunication, each of which shall constitute an original and all of which together shall constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including any electronic signature covered by the U.S. federal ESIGN Act of 2000, Uniform Electronic Transactions Act, the Electronic Signatures and Records Act or other applicable law, e.g., www.docusign.com) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes.
SECTION 15.19 Entire Agreement. Notwithstanding any supplemental agreements that the parties may execute, this Indenture, together with the Notes, the Note Guarantees and the Participation Agreement, sets forth the entire agreement of the parties hereto with respect to the subject matter hereof.
SECTION 15.20 Patriot Act. The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering
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activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. Each party to this Indenture agrees that it will provide to the Indenture Trustee and Authorized Agents such information as they may request, from time to time, in order for the Indenture Trustee and Authorized Agents to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow them to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.
SECTION 15.21 Non-Petition Covenant. Notwithstanding anything herein to the contrary, each party hereto agrees that it shall not (i) take any action to, or give or make any consent, instruction, vote, claim, approval, filing or notice to commence (or oppose the dismissal of) any case, proceeding or other action under any existing or future law of any jurisdiction relating to bankruptcy, insolvency, reorganization, rehabilitation, arrangement, adjustment, winding-up, liquidation, provisional liquidation, sequestration, dissolution, composition, or other relief with respect to the Cayman Trustee or any of the assets or debts of the Cayman Trustee (a “Bankruptcy Case”), (ii) join with, cause, solicit or instruct any other party to commence (or oppose the dismissal of) such a Bankruptcy Case, (iii) move, directly or indirectly, for appointment of a receiver, liquidator, provisional liquidator, assignee, trustee, custodian, examiner or sequestrator or similar official with respect to the Cayman Trustee or any of the assets or debts of the Cayman Trustee, or (iv) seek any order relating to the winding up, liquidation, provisional liquidation or dissolution of the Cayman Trustee or a general assignment for the benefit of the Cayman Trustee’s creditors. Nothing in this Section 15.21 shall preclude, or be deemed to stop any party hereto (i) from taking any action in (A) any Bankruptcy Case voluntarily filed or commenced by the Cayman Trustee or its shareholders or (B) any involuntary insolvency Bankruptcy Case filed or commenced by a Person other than the Cayman Trustee, or (ii) from commencing against the Issuer or any of its assets any legal action which is not a Bankruptcy Case.
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IN WITNESS WHEREOF, the parties have caused this Indenture to be duly executed by their respective officers thereunto duly authorized as of the day and year first above written.
Executed by:
WALKERS FIDUCIARY LIMITED,
in its capacity as, trustee of the CT Trust
in its capacity as, trustee of the CT Trust
By: ___________________________________
Name:
Title:
Name:
Title:
In the presence of:
Witness: ______________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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NOTE GUARANTORS:
COMUNICACIONES CELULARES, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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CLOUD2NUBE, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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DISTRIBUIDORA CENTRAL DE
COMUNICACIONES, S.A.
COMUNICACIONES, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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DISTRIBUIDORA INTERNACIONAL
DE COMMUNICACIONES, S.A.
DE COMMUNICACIONES, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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SERVICIOS ESPECIALIZADOS EN
TELECOMUNICACIONES, S.A.
TELECOMUNICACIONES, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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DISTRIBUIDORA DE
COMMUNICACIONES DE
OCCIDENTE,S.A.
COMMUNICACIONES DE
OCCIDENTE,S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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NAVEGA.COM., S.A
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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DISTRIBUIDORA DE
COMUNICACIONES DE ORIENTE,
S.A.
COMUNICACIONES DE ORIENTE,
S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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COMUNICACIONES
CORPORATIVAS, S.A.
CORPORATIVAS, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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SERVICIOS INNOVADORES DE
COMUNICACIONY
ENTRETENIMENTO, S.A.
COMUNICACIONY
ENTRETENIMENTO, S.A.
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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THE BANK OF NEW YORK MELLON,
as Indenture Trustee, Note Registrar, Transfer Agent and Paying Agent
as Indenture Trustee, Note Registrar, Transfer Agent and Paying Agent
By: ___________________________________
Name:
Title:
Name:
Title:
[Signature Page to the Indenture]
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EXHIBIT A-1
FORM OF RULE 144A RESTRICTED GLOBAL NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO WALKERS FIDUCIARY LIMITED, AS TRUSTEE OF THE CT TRUST, AS ISSUER (THE “ISSUER”), OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES MAY BE PURCHASED AND TRANSFERRED ONLY IN MINIMUM PRINCIPAL AMOUNTS OF US$200,000 AND INTEGRAL MULTIPLES OF US$1,000 IN EXCESS THEREOF. IF AT ANY TIME THE TRUST DETERMINES IN GOOD FAITH THAT A HOLDER OR BENEFICIAL OWNER OF THIS NOTE OR BENEFICIAL INTERESTS HEREIN IS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE TRANSFER RESTRICTIONS SET FORTH HEREIN AND IN THE INDENTURE, THE TRUST MAY REQUIRE SUCH HOLDER TO TRANSFER THIS NOTE (OR INTEREST HEREIN) TO A TRANSFEREE ACCEPTABLE TO THE TRUST WHO IS ABLE TO AND WHO DOES SATISFY ALL OF THE REQUIREMENTS SET FORTH HEREIN AND IN THE INDENTURE. PENDING SUCH TRANSFER, SUCH HOLDER WILL BE DEEMED NOT TO BE THE HOLDER OF THIS NOTE (OR INTEREST HEREIN) FOR ANY PURPOSE, INCLUDING BUT NOT LIMITED TO RECEIPT OF PRINCIPAL AND INTEREST PAYMENTS ON THE NOTE, AND SUCH HOLDER WILL BE DEEMED TO HAVE NO INTEREST WHATSOEVER IN THE NOTE EXCEPT AS OTHERWISE REQUIRED TO SELL ITS INTEREST THEREIN AS DESCRIBED HEREIN.
THE NOTES EVIDENCED BY THIS GLOBAL NOTE HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THE ISSUER OF THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED AS AN INVESTMENT COMPANY UNDER THE U.S. INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE “INVESTMENT COMPANY ACT”). THE NOTES MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT TO THE TRUST OR THE BORROWER OR (A)(1) TO A PERSON WHO IS BOTH A “QUALIFIED INSTITUTIONAL BUYER” (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) AND A “QUALIFIED PURCHASER” (AS DEFINED IN SECTION 2(A)(51) OF THE INVESTMENT COMPANY ACT AND RELATED RULES), IN EACH CASE PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER WHO IS ALSO A QUALIFIED PURCHASER AS TO WHICH THE PURCHASER EXERCISES SOLE INVESTMENT DISCRETION, IN RELIANCE ON THE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED BY RULE 144A, AND PROVIDED THAT EACH SUCH PERSON AND ACCOUNT FOR WHICH SUCH PERSON IS PURCHASING (A) IS NOT A BROKER-DEALER THAT OWNS AND INVESTS ON A DISCRETIONARY BASIS LESS THAN US$25,000,000 IN SECURITIES OF ISSUERS THAT ARE NOT ITS AFFILIATED PERSONS, (B) IS NOT FORMED FOR THE PURPOSE OF INVESTING IN THE TRUST, (C) IT HAS NOT INVESTED MORE THAN 40% OF ITS ASSETS IN THE NOTES (OR BENEFICIAL INTERESTS THEREIN) AND/OR OTHER SECURITIES OF THE ISSUER AFTER GIVING
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EFFECT TO THE PURCHASE OF THE NOTES (OR BENEFICIAL INTERESTS THEREIN) (UNLESS ALL OF ITS BENEFICIAL OWNERS ARE QUALIFIED INSTITUTIONAL BUYERS WHO ARE ALSO QUALIFIED PURCHASERS), (D) IT IS NOT A PARTICIPANT-DIRECTED EMPLOYEE PLAN, SUCH AS A 401(K) PLAN, OR A TRUST HOLDING THE ASSET OF SUCH A PLAN, UNLESS THE INVESTMENT DECISIONS WITH RESPECT TO SUCH PLAN ARE MADE SOLELY BY THE FIDUCIARY, TRUSTEE OR SPONSOR OF SUCH PLAN, (E) IT IS NOT A PARTNERSHIP, COMMON TRUST FUND OR CORPORATION, SPECIAL TRUST, PENSION FUND OR RETIREMENT PLAN, OR OTHER ENTITY, IN WHICH THE PARTNERS, BENEFICIARIES, BENEFICIAL OWNERS, PARTICIPANTS, SHAREHOLDERS OR OTHER EQUITY OWNERS, AS THE CASE MAY BE, MAY DESIGNATE THE PARTICULAR INVESTMENT TO BE MADE, OR THE ALLOCATION THEREOF, UNLESS ALL SUCH PARTNERS, BENEFICIARIES, BENEFICIAL OWNERS, PARTICIPANTS, SHAREHOLDERS OR OTHER EQUITY OWNERS ARE QUALIFIED INSTITUTIONAL BUYERS WHO ARE ALSO QUALIFIED PURCHASERS, (F) UNDERSTANDS THAT THE TRUST MAY RECEIVE A LIST OF PARTICIPANTS HOLDING POSITIONS IN THIS SECURITY FROM ONE OR MORE BOOK-ENTRY DEPOSITARIES, (G) IF IT IS A SECTION 3(C)(1) OR SECTION 3(C)(7) INVESTMENT COMPANY, OR A SECTION 7(D) FOREIGN INVESTMENT COMPANY RELYING ON SECTION 3(C)(1) OR SECTION 3(C)(7) OF THE INVESTMENT COMPANY ACT WITH RESPECT TO ITS U.S. HOLDERS AND WAS FORMED ON OR BEFORE APRIL 30, 1996, IT HAS RECEIVED THE NECESSARY CONSENT FROM ITS BENEFICIAL OWNERS AS REQUIRED BY THE INVESTMENT COMPANY ACT AND (H) MUST BE ABLE TO AND WILL BE DEEMED TO REPRESENT THAT IT AGREES TO COMPLY WITH THE APPLICABLE TRANSFER RESTRICTIONS, AND WILL NOT TRANSFER THIS NOTE OR ANY BENEFICIAL INTERESTS HEREIN EXCEPT TO A PURCHASER WHO CAN MAKE THE SAME REPRESENTATIONS AND AGREEMENTS ON BEHALF OF ITSELF AND EACH ACCOUNT FOR WHICH IT IS PURCHASING OR (2) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S (“REGULATION S”) UNDER THE SECURITIES ACT, AND (B) IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES, PROVIDED THAT, AS A CONDITION TO THE REGISTRATION OF THE TRANSFER THEREOF, THE TRUST OR THE INDENTURE TRUSTEE MAY REQUIRE THE DELIVERY OF ANY DOCUMENTS, INCLUDING AN OPINION OF COUNSEL, THAT THE TRUST, IN ITS SOLE DISCRETION, MAY DEEM NECESSARY OR APPROPRIATE TO EVIDENCE COMPLIANCE WITH SUCH EXEMPTION. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS NOTE, REPRESENTS AND AGREES FOR THE BENEFIT OF THE TRUST THAT IT WILL NOTIFY ANY PURCHASER OF THIS NOTE FROM THE HOLDER OF THE RESALE RESTRICTIONS REFERRED TO ABOVE.
THE FOREGOING LEGENDS MAY BE REMOVED FROM THIS NOTE ONLY ON THE CONDITIONS SPECIFIED IN THE INDENTURE REFERRED TO HEREIN.
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FACE OF NOTE
WALKERS FIDUCIARY LIMITED
AS TRUSTEE OF THE CT TRUST
5.125% SENIOR NOTES DUE 2032
AS TRUSTEE OF THE CT TRUST
5.125% SENIOR NOTES DUE 2032
RULE 144A RESTRICTED GLOBAL NOTE
No.R-[ ]
CUSIP No.: 12659B AA2
ISIN No.: US12659BAA26
Common Code: 241147797
CUSIP No.: 12659B AA2
ISIN No.: US12659BAA26
Common Code: 241147797
Principal Amount: U.S.$[ ],
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
Initial Issuance Date: February 3, 2022
This Note is one of a duly authorized issue of Notes of Walkers Fiduciary Limited, as trustee (the “Cayman Trustee”) of the CT Trust (the “Issuer”), designated as its 5.125% Senior Notes due 2032 (the “Notes”), issued in an initial aggregate principal amount of U.S.$900,000,000 under an indenture (the “Indenture”) dated as of February 3, 2022, among the Issuer, Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A. (the “Guarantors”) and The Bank of New York Mellon, as indenture trustee (the “Indenture Trustee”, which term includes any successor Indenture Trustee under the Indenture), Note Registrar, Paying Agent and Transfer Agent, to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Issuer, the Guarantors, the Indenture Trustee and the Noteholders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“DTC”) and the holder of record of this Note (the “Noteholder”), the principal amount specified above in U.S. dollars on February 3, 2032 (the “Stated Maturity”) (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Indenture Trustee referred to below.
Interest Rate: 5.125%
Interest Payment Dates: February 3 and August 3 of each year, commencing on August 3, 2022
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Record Dates: With respect to any payment to be made on an Interest Payment Date, the January 18 or July 18 preceding such Interest Payment Date; other than the Interest Payment Date which is the same as the Maturity Date, in which case it will be the Maturity Date
Maturity Date February 3, 2032
Additional provisions of this Note are set forth on the other side of this Note.
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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
WALKERS FIDUCIARY LIMITED,
AS TRUSTEE OF THE CT TRUST
AS TRUSTEE OF THE CT TRUST
By: ____________________________________
Name:
Title:
Name:
Title:
Date:
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CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON,
as Indenture Trustee
as Indenture Trustee
By: ____________________________________
Authorized Signatory
Authorized Signatory
Date:
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REVERSE SIDE OF NOTE
5.125% SENIOR NOTES DUE 2032
5.125% SENIOR NOTES DUE 2032
The Issuer has issued the Notes under an Indenture, dated as of February 3, 2022 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Issuer, the Guarantors and the Indenture Trustee. The terms of the Notes include those stated in the Indenture and capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Noteholders are referred to the Indenture for a statement of those terms. Each Noteholder by accepting a Note agrees to be bound by all of the terms and provisions of the Indenture. With the proceeds from the Notes, the Issuer will acquire, pursuant to a participation agreement to be dated as of February 3, 2022 (the “Participation Agreement”) by and among the Issuer, JPMorgan Chase Bank, N.A. (the “Lender”), and The Bank of New York Mellon, as administrative agent (the “Administrative Agent”), a 100% participation interest in a US$900,000,000 loan (the “Loan”) made by the Lender to Comunicaciones Celulares, S.A. (in such capacity, the “Borrower”), pursuant to a credit agreement dated as of February 3, 2022 (the “Credit and Guaranty Agreement”) among the Lender, the Borrower and Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as guarantors (in such capacity, the “Loan Guarantors”), and the Administrative Agent.
This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The terms of this Note are made expressly subject to the terms of the Indenture and should any ambiguity arise in relation to the terms of the Note and the provisions of the Indenture, the provisions of the Indenture shall prevail.
Unless the certificate of authentication hereon has been duly executed by or on behalf of the Indenture Trustee or any Authenticating Agent by manual or electronic signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
1. Maturity.
The Issuer shall pay the principal amount of the Notes in full in a single payment on February 3, 2032 (the “Maturity Date”) to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV of the Indenture. No payments in respect of the principal of the Notes shall be paid prior to the Maturity Date except upon redemption prior to the Maturity Date pursuant to Article IV of the Indenture.
2. Interest.
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(a) The Notes will accrue interest from and including the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from and including February 3, 2022 (the “Issue Date”) to but excluding the Maturity Date (to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV of the Indenture ) at a rate per annum equal to 5.125% (the “Interest Rate”), payable semi-annually in arrears on February 3 and August 3 of each year, commencing on August 3, 2022 (each an “Interest Payment Date”). The Interest Rate will be computed on the basis of a 360-day year of twelve 30-day months.
3. Method of Payment.
(a) Subject to the limited recourse provisions described in Section 16 herein and Section 2.6 of the Indenture, the Issuer shall pay all amounts due and owing by the Issuer under the Indenture, as the same shall become due and owing. All payments of principal, interest and other amounts required to be made by the Issuer shall be made, pursuant to the terms of the Indenture, by the Issuer to the Indenture Trustee promptly upon receipt by the Issuer of any cash proceeds with respect to (i) the Participation, unless any such payment amounts are paid directly to the Indenture Trustee at the direction of the Lender pursuant to the Participation Agreement, and (ii) any Tax Reimbursement Payments pursuant to Section 2 of the Expense Reimbursement and Indemnity Agreement. All such payments to the Indenture Trustee shall be made by the Issuer or on behalf of the Issuer by the Lender or the Administrative Agent by depositing immediately available funds in U.S. dollars to the Loan Collection Account provided for in the Indenture.
(b) Interest on any Note that is payable, and punctually paid or duly provided for, on any Interest Payment Date or any other Payment Date (other than the Maturity Date) shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Record Date for such payment. Payment of interest on the Notes shall be made at the Place of Payment (or, if such office is not in the City of New York, at either such office or an office to be maintained in such city). The principal amount of any Note, whether due on the Maturity Date, a redemption date or on any other Payment Date, will be payable only upon surrender of such Note at the Corporate Trust Office of the Indenture Trustee or at the specified offices of any Paying Agent appointed by the Indenture Trustee; provided, however, that so long as the Notes are held in the name of a nominee of DTC, the Indenture Trustee, or such Paying Agent, will make such payments to DTC or its nominee, as the case may be, in accordance with DTC’s applicable procedure. If the due date for payment of the principal amount of the Notes in respect of any Note is not a Business Day, the Noteholder thereof will not be entitled to payment of the amount due until the next succeeding Business Day and will not be entitled to any further interest or other payment in respect of any such delay.
(c) Payments with respect to any Note will be made (a) in the case of Global Notes, in U.S. dollars by wire transfer in accordance with DTC’s applicable policies and procedures; and (b) in the case of certificated notes, in U.S. dollars by wire transfer in immediately available funds to the account of such Noteholder at a bank or other entity having appropriate facilities therefor in the United States if such Noteholder has notified the Indenture Trustee or the Paying Agent, as applicable, in writing of wire instructions by the Record Date immediately prior to the applicable Note Payment Date. If a Noteholder does not provide the
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Indenture Trustee or the Paying Agent, as applicable, with such wire transfer instructions, the Indenture Trustee or the Paying Agent, as applicable, will make payments by U.S. dollar check to the mailing address of such Noteholder appearing in the Note Register maintained by the Indenture Trustee. Until revoked, such instruction will remain in effect with respect to any future payments payable to such Noteholder with respect to such Notes.
4. Authorized Agents.
The Bank of New York Mellon (the “Indenture Trustee”) will act as Indenture Trustee, Paying Agent, Transfer Agent and Note Registrar. The Issuer may appoint and change any Authorized Agent without notice to any Noteholder.
5. Redemption Events Offers to Purchase.
(a) The Issuer shall redeem the Notes, in whole or in part, as applicable, upon the deposit by the Lender, or otherwise as provided in the Credit and Guaranty Agreement or Participation Agreement, in the Loan Collection Account of any Prepayment Amount upon the occurrence of any optional or mandatory prepayment by the Borrower of the amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of any of the following: (i) any optional prepayment of the Loan, in whole or in part, with a make-whole premium in accordance with Section 3.03(b) of the Credit and Guaranty Agreement, (ii) any optional prepayment of the Loan, in whole or in part, without a make-whole premium in accordance with Section 3.03(c) of the Credit and Guaranty Agreement, (iii) an optional redemption upon certain tender offers, in whole or in part, in accordance with Section 3.03(d) of the Credit and Guaranty Agreement, (iv) any optional prepayment of the Loan, in whole but not in part, upon a Withholding Tax Event in accordance with Section 3.03(e) of the Credit and Guaranty Agreement, (v) any optional prepayment of the Loan, in whole but not in part, upon occurrence of a Change of Control Remainder Event in accordance with Section 3.03(f) of the Credit and Guaranty Agreement, (vi) a Change of Control Prepayment Event in accordance with Section 3.04(a) of the Credit and Guaranty Agreement, (vii) an Asset Sale Prepayment Event in accordance with Section 3.04(b) of the Credit and Guaranty Agreement, and (viii) upon the acceleration of the Loan as a result of the occurrence of a Loan Event of Default, (each of clauses (i) through (v), an “Optional Redemption Event” and, together with the redemption events described in clauses (vi), (vii) and (viii), the “Note Redemption Events”).
(b) Upon (i) the occurrence of a Note Redemption Event and payment by the Borrower to the Lender or the Administrative Agent on behalf of the Lender of the applicable Prepayment Amount with respect to a Note Redemption Event, as provided for in the Credit and Guaranty Agreement and (ii) payment by the Lender or the Administrative Agent on behalf of the Lender of the Prepayment Amount so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, the Issuer shall pay on the applicable redemption date the redemption price for the Notes together with accrued and unpaid interest thereon to but not including the date of redemption solely out of the Prepayment Amount received from the Borrower with respect to such redemption.
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(c) If fewer than all of the Notes are being redeemed, the Notes to be redeemed shall be selected, in the case of certified Notes, by lot or by such other method as the Indenture Trustee will deem to be fair and appropriate, and in the case of Global Notes, in accordance with DTC’s applicable policies and procedures (in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Note will not be less than US$200,000). Upon surrender of any Note redeemed in part, the Noteholder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note (or appropriate adjustments will be made to the amount of such Global Note in accordance with the Registered Depository’s policies and procedures).
(d) Notes called for redemption become due and payable at the redemption price on the redemption date. On and after the applicable redemption date, interest will cease to accrue on the Notes as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price together with accrued and unpaid interest thereon pursuant to the Indenture. Upon redemption of the Notes by the Issuer, the redeemed Notes will be cancelled and cannot be reissued.
(e) Notwithstanding anything herein to the contrary, the funds available to so redeem the Notes shall be limited to funds in respect of the Prepayment Amount actually received in the Loan Collection Account by the Issuer from the Lender under the Participation Agreement following receipt of the same from the Borrower or any Note Guarantor. Following any Note Redemption Event pursuant to this Section 5, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes redeemed, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to any such Note Redemption Event.
6. Repurchase of Notes Tendered upon a Change of Control.
(a) Upon the Issuer’s receipt from the Lender or the Borrower of a Change of Control Notice in accordance with the Credit and Guaranty Agreement, the Issuer will deliver a copy of the notice to the Indenture Trustee and promptly (and in no event later than 30 days prior to the Change of Control Payment Date) give (or the Indenture Trustee, in the name of and at the expense of the Issuer, upon the Issuer providing written instruction to the Indenture Trustee containing all of the relevant information to be included in the notice at least 3 Business Days before the notice is to be given to Noteholders (or such shorter time as is acceptable to the Indenture Trustee) shall give) notice as described in Section 15.4 of the Indenture to each Noteholder (with a copy to the Indenture Trustee unless the Indenture Trustee sends the notice) offering to purchase (subject to the receipt by the Issuer from the Lender of Change of Control Payment) the Notes on the Change of Control Payment Date at a price equal to the Change of Control Payment upon substantially identical terms as and pursuant to the Borrower’s Change of Control Offer (the “Notes Change of Control Offer”). In addition to the information contained in the Borrower’s Change of Control Notice, the notice of the Notes Change of Control Offer will include instructions and materials necessary to enable Noteholders to tender Notes pursuant to the offer. The Change of Control Payment Date shall be no earlier than 30 days nor later than 60 days subsequent to the date on which the notice of the Notes Change of Control Offer is
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delivered to Noteholders (other than as may be required by applicable Law) and will be the same herein and under the Credit and Guaranty Agreement.
(b) Upon a Notes Change of Control Offer, each Noteholder will have the right to require that the Issuer purchase (subject to the receipt by the Issuer from the Lender of the Change of Control Payment) all or a portion of such Noteholder’s Notes in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Notes will not be less than US$200,000. Tender of any Notes to be purchased in connection with the Notes Change of Control Offer must be received by the Issuer no later than five Business Days preceding the Change of Control Payment Date and may also be withdrawn until the same.
(c) Upon payment by the Lender of the amounts so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, and on the Change of Control Payment Date, the Issuer shall, to the extent lawful, accept for payment all Notes or portions thereof validly tendered and not validly withdrawn, make payment or cause payment to be made for such Notes or portions thereof accepted for payment and deliver or cause to be delivered to the Indenture Trustee the Notes so accepted, and the Issuer shall instruct the Indenture Trustee to cancel such Notes in accordance with its applicable procedures. Notwithstanding anything herein to the contrary, the obligation of the Issuer to so repurchase the Notes shall be limited in extent to funds in respect of the amount actually received by the Issuer. Following any Change of Control Payment pursuant to this Section 6, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes repurchased, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to such repurchase.
7. Repurchase of Notes Tendered upon an Asset Sale Offer
The Notes shall be subject to redemption upon the occurrence of any prepayment by the Borrower of amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of an Asset Sale Prepayment Event as further described under Section 7.7 of the Indenture.
8. Ranking.
The Notes shall be direct, senior, secured, limited recourse and unsubordinated Indebtedness of the Issuer and shall at all times rank pari passu without any preferences among themselves, with all other present and future obligations of the Issuer (other than obligations preferred by statute or by operation of Law).
9. Taxation.
(a) Except as compelled by law, the Issuer will make any and all payments of principal, premium, interest or any other amounts under the Indenture or in respect of the Notes free and clear of, and without withholding or deduction for or on account of, any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction. If any such Taxes are required to be deducted or withheld:
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(i) the Issuer shall notify the Lender and the Indenture Trustee that it is required by law to withhold or deduct such Taxes;
(ii) the Issuer shall make all such withholdings and deductions; and
(iii) the Issuer shall pay the full amount withheld or deducted to the relevant taxation authority in accordance with applicable law.
(b) The sum payable by the Issuer under the Indenture shall be increased by the sum of (x) the Additional Amounts payable to the Issuer pursuant to the Participation Agreement and the Credit and Guaranty Agreement or the Loan Guarantees, respectively, and (y) the Tax Reimbursement Payments payable to the Issuer by the Borrower or the Guarantors pursuant to the Expense Reimbursement and Indemnity Agreement or the Loan Guarantees, respectively, after accounting for any Taxes withheld from such payments to the Issuer or otherwise payable by the Issuer in respect of such payments (“Note Additional Amounts”).
(c) All references to principal, interest or other amounts payable under the Indenture shall be deemed to include any Note Additional Amounts payable by the Issuer under this Section 9 or otherwise with respect to the Indenture. The foregoing obligations in this Section 9 shall survive any termination, defeasance or discharge of the Indenture.
(d) At least 10 Business Days prior to the first Interest Payment Date for the Notes, and, if there has been any change with respect to the matters set forth in the below mentioned certificate at least 10 Business Days prior to each Interest Payment Date for the Notes, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate instructing the Indenture Trustee as to any circumstances in which payments of principal of, premium (if any) or interest on the Notes due on such date shall be subject to deduction or withholding for or on account of any Taxes and the rate of any such deduction or withholding. The Issuer covenants to indemnify the Indenture Trustee and any other Paying Agents for, and to hold each harmless against, any loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Issuer under the preceding sentence shall survive the resignation or removal of the Indenture Trustee, the Registrar or any Paying Agent.
(e) The Issuer shall provide the Indenture Trustee with documentation reasonably satisfactory to the Indenture Trustee evidencing the payment of Taxes in respect of which the Issuer, the Borrower or any Note Guarantor has paid any Note Additional Amounts. Copies of such documentation shall be made available by the Indenture Trustee to the Noteholders or the other Paying Agents, as applicable, upon written request therefor.
10. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons and in minimum denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. A Noteholder may transfer or exchange Notes in accordance with the Indenture.
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11. Persons deemed owners.
The registered Noteholder of this Note may be treated as the owner of it for all purposes.
12. Unclaimed money.
The Indenture Trustee will pay to the Issuer upon request any money held for payment with respect to the Notes that remains unclaimed for two years, provided that before making such payment the Indenture Trustee may at the expense of the Issuer publish once in a newspaper of general circulation in New York City, or send to each Noteholder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Issuer. After payment to the Issuer, Noteholders entitled to such money must look solely to the Issuer for payment, unless applicable law designates another Person, and all liability of the Indenture Trustee with respect to such money will cease.
13. Amendment, Waiver.
(a) Notwithstanding anything to the contrary in any Transaction Document, as a result of the pledge described in Article V of the Indenture, the Issuer shall not agree to any modification of the terms of any Transaction Document to which it is a party without having first received directions from the Indenture Trustee, acting upon the written instructions of the Required Holders, except as set forth under Section 12.1(c) and 12.2 of the Indenture.
(b) At the written direction or consent of the Required Holders, each of the Issuer and the Indenture Trustee shall, subject to Sections 12.3 and 12.4 of the Indenture, enter into an indenture or indentures supplemental hereto for the purpose of amending the provisions of the Indenture and the Issuer shall otherwise amend, modify or supplement any other Transaction Document to which it is a party; provided, however, that without the consent or direction of 90% of the aggregate principal amount of the then Outstanding Notes directly affected thereby, no such supplemental indenture or modification or amendment shall cause, with respect to the Indenture or any other Transaction Document, any of the following:
(i) change the maturity of any payment of principal of or any installment of interest on any Note;
(ii) reduce the principal amount or the rate of interest, or change the method of computing the amount of principal, interest or Note Additional Amounts, payable under any Transaction Document on any date;
(iii) change any Place of Payment where the principal of or interest under any Transaction Document is payable;
(iv) change the coin or currency in which the principal of or interest on any Transaction Document is payable;
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(v) impair the right of the Noteholders to institute suit for the enforcement of any payment on or after the date due;
(vi) release the security interest in the Trust Assets created under the Indenture or waive any of the payment obligations of the Issuer that would otherwise be payable to the Noteholders;
(vii) following the delivery of notice to the holders of the Notes by the Issuer (or the Indenture Trustee on behalf of the Issuer) of any Notes Change of Control Offer or Notes Asset Sale Offer, modify any such offer in a manner adverse to the Noteholders;
(viii) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Noteholders is required for any modification or the consent of whose Noteholders is required for any waiver of compliance with the Indenture; or
(ix) modify or change any of the provisions of the Indenture requiring consent or direction of Noteholders to amend, modify or waive any other provisions or terms except to increase any required percentage of consenting Noteholders or to provide that one or more provisions of the Indenture cannot be modified or waived without the consent of each Noteholder.
14. Defaults and Remedies.
If an Event of Default (other than an Event of Default specified in Section 10(g) or Section 10(h) of the Credit and Guaranty Agreement) has occurred and is continuing, the Indenture Trustee or the Noteholders of at least 25% in principal amount of Outstanding Notes may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer (and the Indenture Trustee if given by the Noteholders) specifying the Event of Default and that it is a “notice of acceleration.” Upon such declaration the principal and interest shall be due and payable immediately.
Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture. The Required Holders (or such other percentage of Noteholders of Outstanding Notes as may be permitted or required pursuant to the terms of the Indenture) may direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred on the Indenture Trustee. However, the Indenture Trustee may refuse to follow any direction that conflicts with law or the Indenture, is unduly prejudicial to the rights of other Noteholders, or would involve the Indenture Trustee in personal or financial liability or expense for which the Indenture Trustee has not received an indemnity or security satisfactory to it.
15. Indenture Trustee Dealings with the Issuer.
Subject to certain limitations set forth in the Indenture, the Indenture Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer or its
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Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee.
16. Limited Recourse.
(a) Notwithstanding any other provision of the Indenture, all payments to be made by, and all liabilities of, the Cayman Trustee under the Indenture, this Note and any other Transaction Document to which the Cayman Trustee is a party shall be made only from, and limited to, the income and proceeds of the Trust Assets and only to the extent that the Cayman Trustee shall have received income or proceeds from the Trust Assets sufficient to make such payments or satisfy such liabilities in accordance with the terms hereto. No recourse shall be had to the assets of the Cayman Trustee which are owned by it beneficially or held by it as trustee for any other trust. The Cayman Trustee shall not sell or otherwise dispose of any of the Trust Assets unless otherwise specifically permitted under the Indenture and the Cayman Trustee shall not take any actions under the Participation Agreement except as authorized by the Noteholders in accordance with Section 10.6 of the Indenture. The Cayman Trustee shall not sell or otherwise dispose of the Participation without the consent of all of the Noteholders and payment of all amounts to the Indenture Trustee and agents appointed pursuant to the Indenture.
(b) Following the application of the income and proceeds of the Trust Assets in accordance with the Indenture, none of the Noteholders will be entitled to take any further action to recover any sums due but remaining unpaid under the Indenture or the Notes and all remaining claims in respect of the Indenture and the Notes will thereupon be extinguished and shall not thereafter revive.
(c) No incorporator, director, officer, employee, stockholder or controlling Person of the Cayman Trustee shall have any liability for any obligations of the Cayman Trustee under the Notes or the Indenture or the other Transaction Documents or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
17. Authentication.
This Note shall not be valid until an authorized signatory of the Indenture Trustee (or an Authenticating Agent acting on its behalf) signs the certificate of authentication on the other side of this Note.
18. CUSIP or ISIN Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or ISIN numbers to be printed on the Notes and has directed the Indenture Trustee to use CUSIP or ISIN numbers in notices of redemption as a convenience to Noteholders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
19. Governing Law.
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This Note shall be governed by, and construed in accordance with, the law of the State of New York.
20. Currency Rate Indemnity.
The Issuer will indemnify each of the Indenture Trustee and the Noteholders as provided in the Indenture in respect of the conversion of currency relating to the Notes and the Indenture.
21. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
The Issuer and the Note Guarantors have consented to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan, The City of New York, and agreed that all disputes under the Indenture, the Notes, the Note Guarantees and the other Transaction Documents may be submitted to the jurisdiction of such courts. The Issuer and the Guarantors have irrevocably consented to and waived to the fullest extent permitted by law any objection that the Issuer or the Note Guarantors may have to the laying of venue of any suit, forum, action or proceeding against the Issuer or the Note Guarantors or any of their respective properties, assets and revenues with respect to the Indenture, the Note Guarantees and the other Transaction Documents or any such suit, action or proceeding in any such court and any right to which the Issuer or the Note Guarantors may be entitled on account of place of residence or domicile.
To the extent that the Issuer or any Note Guarantor or any of their respective revenues, assets or properties shall be entitled to any immunity from suit, from the jurisdiction of any such court, from attachment prior to judgment, from attachment in aid of execution of judgment, from execution of a judgment or from any other legal or judicial process remedy, the Issuer and the Note Guarantors have irrevocably agreed not to claim and will irrevocably waive such immunity to the fullest extent permitted by the laws of such jurisdiction.
The Issuer and the Note Guarantors have agreed that service of all writs, claims, process and summons in any suit, action or proceeding against the Issuer or the Guarantors or their respective properties, assets or revenues with respect to the Indenture, the Notes, the Note Guarantees and the other Transaction Documents or any suit, action or proceeding to enforce or execute any judgment brought against them in the State of New York may be made upon C T Corporation Systems, located at 28 Liberty Street, New York, New York 10005, and the Issuer and the Guarantors have irrevocably appointed C T Corporation Systems as their agent to accept such service of any and all such writs, claims, process and summonses.
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ASSIGNMENT FORM
For value received
hereby sells, assigns and transfers unto
(Please insert social security or
other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee)
the within Note and does hereby irrevocably constitute and appoint _________ attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.
Date: Your signature: (Sign exactly as your name appears on the face of this Note)
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of Increase or Decrease | Amount of decrease in Principal Amount of this Global Note | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase | Signature of authorized signatory of Trustee or Note Custodian | ||||||||||
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EXHIBIT A-2
FORM OF REGULATION S UNRESTRICTED GLOBAL NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), NEW YORK, NEW YORK, TO WALKERS FIDUCIARY LIMITED, AS TRUSTEE OF THE CT TRUST, AS ISSUER (THE “ISSUER”), OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE NOTES MAY BE PURCHASED AND TRANSFERRED ONLY IN MINIMUM PRINCIPAL AMOUNTS OF $200,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF.
THIS NOTE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR WITH ANY SECURITIES REGULATORY AUTHORITY OF ANY JURISDICTION AND MAY NOT BE REOFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED WITHIN THE UNITED STATES OR TO A U.S. PERSON (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT.
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FACE OF NOTE
WALKERS FIDUCIARY LIMITED
AS TRUSTEE OF THE CT TRUST
5.125% SENIOR NOTES DUE 2032
AS TRUSTEE OF THE CT TRUST
5.125% SENIOR NOTES DUE 2032
REGULATION S UNRESTRICTED GLOBAL NOTE
No. S-[ ]
CUSIP No.: G2588B AA2
ISIN No.: USG2588BAA29
Common Code: 241148769
CUSIP No.: G2588B AA2
ISIN No.: USG2588BAA29
Common Code: 241148769
Principal Amount: U.S.$[ ],
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
as revised by the Schedule of Increases and
Decreases in Global Note attached hereto
Initial Issuance Date: February 3, 2022
This Note is one of a duly authorized issue of Notes of Walkers Fiduciary Limited, as trustee (the “Cayman Trustee”) of the CT Trust (the “Issuer”), designated as its 5.125% Senior Notes due 2032 (the “Notes”), issued in an initial aggregate principal amount of U.S.$900,000,000 under an indenture (the “Indenture”) dated as of February 3, 2022, among the Issuer, Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A. (the “Guarantors”) and The Bank of New York Mellon, as indenture trustee (the “Indenture Trustee”, which term includes any successor Indenture Trustee under the Indenture), Note Registrar, Paying Agent and Transfer Agent, to which Indenture reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Issuer, the Guarantors, the Indenture Trustee and the Noteholders, and of the terms upon which the Notes are, and are to be, authenticated and delivered. All terms used in this Note which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to them in the Indenture.
The Issuer, for value received, hereby promises to pay to Cede & Co. or its registered assigns, as nominee of The Depository Trust Company (“DTC”) and the holder of record of this Note (the “Noteholder”), the principal amount specified above in U.S. dollars on February 3, 2032 (the “Stated Maturity”) (or earlier or later as provided in the Indenture as hereinafter described) upon presentation and surrender hereof, at the office or agency of the Indenture Trustee referred to below.
Interest Rate: 5.125%
Interest Payment Dates: February 3 and August 3 of each year, commencing on August 3, 2022
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Record Dates: With respect to any payment to be made on an Interest Payment Date, the January 18 or July 18 preceding such Interest Payment Date; other than the Interest Payment Date which is the same as the Maturity Date, in which case it will be the Maturity Date
Maturity Date February 3, 2032
Additional provisions of this Note are set forth on the other side of this Note.
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IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
WALKERS FIDUCIARY LIMITED, AS TRUSTEE OF THE CT TRUST
By: ___________________________________
Name:
Title:
Name:
Title:
Date:
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CERTIFICATE OF AUTHENTICATION
This Note is one of the Notes referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON,
as Indenture Trustee
as Indenture Trustee
By: __________________________________
Authorized Signatory
Authorized Signatory
Date:
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REVERSE SIDE OF NOTE
5.125% SENIOR NOTES DUE 2032
5.125% SENIOR NOTES DUE 2032
The Issuer has issued the Notes under an Indenture, dated as of February 3, 2022 (as it may be amended or supplemented from time to time in accordance with the terms thereof, the “Indenture”), among the Issuer, the Guarantors and the Indenture Trustee. The terms of the Notes include those stated in the Indenture and capitalized terms used herein and not defined herein have the meanings ascribed thereto in the Indenture. The Notes are subject to all such terms, and Noteholders are referred to the Indenture for a statement of those terms. Each Noteholder by accepting a Note agrees to be bound by all of the terms and provisions of the Indenture. With the proceeds from the Notes, the Issuer will acquire, pursuant to a participation agreement to be dated as of February 3, 2022 (the “Participation Agreement”) by and among the Issuer, JPMorgan Chase Bank, N.A. (the “Lender”), and The Bank of New York Mellon, as administrative agent (the “Administrative Agent”), a 100% participation interest in a US$900,000,000 loan (the “Loan”) made by the Lender to Comunicaciones Celulares, S.A. (in such capacity, the “Borrower”), pursuant to a credit agreement dated as of February 3, 2022 (the “Credit and Guaranty Agreement”) among the Lender, the Borrower and Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as guarantors (in such capacity, the “Loan Guarantors”), and the Administrative Agent.
This Note does not purport to summarize the Indenture and reference is made to the Indenture for information with respect to interests, rights, benefits, obligations, proceeds, and duties evidenced hereby. The terms of this Note are made expressly subject to the terms of the Indenture and should any ambiguity arise in relation to the terms of the Note and the provisions of the Indenture, the provisions of the Indenture shall prevail.
Unless the certificate of authentication hereon has been duly executed by or on behalf of the Indenture Trustee or any Authenticating Agent by manual or electronic signature, this Note shall not be entitled to any benefit under the Indenture, or be valid or obligatory for any purpose.
1. Maturity.
The Issuer shall pay the principal amount of the Notes in full in a single payment on February 3, 2032 (the “Maturity Date”) to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV of the Indenture. No payments in respect of the principal of the Notes shall be paid prior to the Maturity Date except upon redemption prior to the Maturity Date pursuant to Article IV of the Indenture.
2. Interest.
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(a) The Notes will accrue interest from and including the most recent date to which interest has been paid on the Notes or, if no interest has been paid, from and including February 3, 2022 (the “Issue Date”) to but excluding the Maturity Date (to the extent the Notes have not been redeemed or repurchased prior thereto as provided under Article IV of the Indenture ) at a rate per annum equal to 5.125% (the “Interest Rate”), payable semi-annually in arrears on February 3 and August 3 of each year, commencing on August 3, 2022 (each an “Interest Payment Date”). The Interest Rate will be computed on the basis of a 360-day year of twelve 30-day months.
3. Method of Payment.
(a) Subject to the limited recourse provisions described in Section 16 herein and Section 2.6 of the Indenture, the Issuer shall pay all amounts due and owing by the Issuer under the Indenture, as the same shall become due and owing. All payments of principal, interest and other amounts required to be made by the Issuer shall be made, pursuant to the terms of the Indenture, by the Issuer to the Indenture Trustee promptly upon receipt by the Issuer of any cash proceeds with respect to (i) the Participation, unless any such payment amounts are paid directly to the Indenture Trustee at the direction of the Lender pursuant to the Participation Agreement, and (ii) any Tax Reimbursement Payments pursuant to Section 2 of the Expense Reimbursement and Indemnity Agreement. All such payments to the Indenture Trustee shall be made by the Issuer or on behalf of the Issuer by the Lender or the Administrative Agent by depositing immediately available funds in U.S. dollars to the Loan Collection Account provided for in the Indenture.
(b) Interest on any Note that is payable, and punctually paid or duly provided for, on any Interest Payment Date or any other Payment Date (other than the Maturity Date) shall be paid to the Person in whose name that Note (or one or more Predecessor Notes) is registered at the close of business on the Record Date for such payment. Payment of interest on the Notes shall be made at the Place of Payment (or, if such office is not in the City of New York, at either such office or an office to be maintained in such city). The principal amount of any Note, whether due on the Maturity Date, a redemption date or on any other Payment Date, will be payable only upon surrender of such Note at the Corporate Trust Office of the Indenture Trustee or at the specified offices of any Paying Agent appointed by the Indenture Trustee; provided, however, that so long as the Notes are held in the name of a nominee of DTC, the Indenture Trustee, or such Paying Agent, will make such payments to DTC or its nominee, as the case may be, in accordance with DTC’s applicable procedure. If the due date for payment of the principal amount of the Notes in respect of any Note is not a Business Day, the Noteholder thereof will not be entitled to payment of the amount due until the next succeeding Business Day and will not be entitled to any further interest or other payment in respect of any such delay.
(c) Payments with respect to any Note will be made (a) in the case of Global Notes, in U.S. dollars by wire transfer in accordance with DTC’s applicable policies and procedures; and (b) in the case of certificated notes, in U.S. dollars by wire transfer in immediately available funds to the account of such Noteholder at a bank or other entity having appropriate facilities therefor in the United States if such Noteholder has notified the Indenture Trustee or the Paying Agent, as applicable, in writing of wire instructions by the Record Date immediately prior to the applicable Note Payment Date. If a Noteholder does not provide the Indenture Trustee or the Paying Agent, as applicable, with such wire transfer instructions, the
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Indenture Trustee or the Paying Agent, as applicable, will make payments by U.S. dollar check to the mailing address of such Noteholder appearing in the Note Register maintained by the Indenture Trustee. Until revoked, such instruction will remain in effect with respect to any future payments payable to such Noteholder with respect to such Notes.
4. Authorized Agents.
The Bank of New York Mellon (the “Indenture Trustee”), will act as Indenture Trustee, Paying Agent, Transfer Agent and Note Registrar. The Issuer may appoint and change any Authorized Agent without notice to any Noteholder.
5. Redemption Events Offers to Purchase.
(a) The Issuer shall redeem the Notes, in whole or in part, as applicable, upon the deposit by the Lender, or otherwise as provided in the Credit and Guaranty Agreement or Participation Agreement, in the Loan Collection Account of any Prepayment Amount upon the occurrence of any optional or mandatory prepayment by the Borrower of the amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of any of the following: (i) any optional prepayment of the Loan, in whole or in part, with a make-whole premium in accordance with Section 3.03(b) of the Credit and Guaranty Agreement, (ii) any optional prepayment of the Loan, in whole or in part, without a make-whole premium in accordance with Section 3.03(c) of the Credit and Guaranty Agreement, (iii) an optional redemption upon certain tender offers, in whole or in part, in accordance with Section 3.03(d) of the Credit and Guaranty Agreement, (iv) any optional prepayment of the Loan, in whole but not in part, upon a Withholding Tax Event in accordance with Section 3.03(e) of the Credit and Guaranty Agreement, (v) any optional prepayment of the Loan, in whole but not in part, upon occurrence of a Change of Control Remainder Event in accordance with Section 3.03(f) of the Credit and Guaranty Agreement, (vi) a Change of Control Prepayment Event in accordance with Section 3.04(a) of the Credit and Guaranty Agreement, (vii) an Asset Sale Prepayment Event in accordance with Section 3.04(b) of the Credit and Guaranty Agreement, and (viii) upon the acceleration of the Loan as a result of the occurrence of a Loan Event of Default, (each of clauses (i) through (v), an “Optional Redemption Event” and, together with the redemption events described in clauses (vi), (vii) and (viii), the “Note Redemption Events”).
(b) Upon (i) the occurrence of a Note Redemption Event and payment by the Borrower to the Lender or the Administrative Agent on behalf of the Lender of the applicable Prepayment Amount with respect to a Note Redemption Event, as provided for in the Credit and Guaranty Agreement and (ii) payment by the Lender or the Administrative Agent on behalf of the Lender of the Prepayment Amount so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, the Issuer shall pay on the applicable redemption date the redemption price for the Notes together with accrued and unpaid interest thereon to but not including the date of redemption solely out of the Prepayment Amount received from the Borrower with respect to such redemption.
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(c) If fewer than all of the Notes are being redeemed, the Notes to be redeemed shall be selected, in the case of certificated Notes, by lot or by such other method as the Indenture Trustee will deem to be fair and appropriate, and in the case of Global Notes, in accordance with DTC’s applicable policies and procedures (in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Note will not be less than US$200,000). Upon surrender of any Note redeemed in part, the Noteholder will receive a new Note equal in principal amount to the unredeemed portion of the surrendered Note (or appropriate adjustments will be made to the amount of such Global Note in accordance with the Registered Depository’s policies and procedures).
(d) Notes called for redemption become due and payable at the redemption price on the redemption date. On and after the applicable redemption date, interest will cease to accrue on the Notes as long as the Issuer has deposited with the Paying Agent funds in satisfaction of the applicable redemption price together with accrued and unpaid interest thereon pursuant to the Indenture. Upon redemption of the Notes by the Issuer, the redeemed Notes will be cancelled and cannot be reissued.
(e) Notwithstanding anything herein to the contrary, the funds available to so redeem the Notes shall be limited to funds in respect of the Prepayment Amount actually received in the Loan Collection Account by the Issuer from the Lender under the Participation Agreement following receipt of the same from the Borrower or any Guarantor. Following any Note Redemption Event pursuant to this Section 5, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes redeemed, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to any such Note Redemption Event.
6. Repurchase of Notes Tendered upon a Change of Control.
(a) Upon the Issuer’s receipt from the Lender or the Borrower of a Change of Control Notice in accordance with the Credit and Guaranty Agreement, the Issuer will deliver a copy of the notice to the Indenture Trustee and promptly (and in no event later than 30 days prior to the Change of Control Payment Date) give (or the Indenture Trustee, in the name of and at the expense of the Issuer, upon the Issuer providing written instruction to the Indenture Trustee containing all of the relevant information to be included in the notice at least 3 Business Days before the notice is to be given to Noteholders (or such shorter time as is acceptable to the Indenture Trustee) shall give) notice as described in Section 15.4 of the Indenture to each Noteholder (with a copy to the Indenture Trustee unless the Indenture Trustee sends the notice) offering to purchase (subject to the receipt by the Issuer from the Lender of Change of Control Payment) the Notes on the Change of Control Payment Date at a price equal to the Change of Control Payment upon substantially identical terms as and pursuant to the Borrower’s Change of Control Offer (the “Notes Change of Control Offer”). In addition to the information contained in the Borrower’s Change of Control Notice, the notice of the Notes Change of Control Offer will include instructions and materials necessary to enable Noteholders to tender Notes pursuant to the offer. The Change of Control Payment Date shall be no earlier than 30 days nor later than 60 days subsequent to the date on which the notice of the Notes Change of Control Offer is
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delivered to Noteholders (other than as may be required by applicable Law) and will be the same herein and under the Credit and Guaranty Agreement.
(b) Upon a Notes Change of Control Offer, each Noteholder will have the right to require that the Issuer purchase (subject to the receipt by the Issuer from the Lender of the Change of Control Payment) all or a portion of such Noteholder’s Notes in integral multiples of US$1,000; provided that the remaining principal amount of such Noteholder’s Notes will not be less than US$200,000. Tender of any Notes to be purchased in connection with the Notes Change of Control Offer must be received by the Issuer no later than five Business Days preceding the Change of Control Payment Date and may also be withdrawn until the same.
(c) Upon payment by the Lender of the amounts so received from the Borrower for deposit to the Loan Collection Account for the benefit of the Issuer and the Indenture Trustee on behalf of the Noteholders, and on the Change of Control Payment Date, the Issuer shall, to the extent lawful, accept for payment all Notes or portions thereof validly tendered and not validly withdrawn, make payment or cause payment to be made for such Notes or portions thereof accepted for payment and deliver or cause to be delivered to the Indenture Trustee the Notes so accepted, and the Issuer shall instruct the Indenture Trustee to cancel such Notes in accordance with its applicable procedures. Notwithstanding anything herein to the contrary, the obligation of the Issuer to so repurchase the Notes shall be limited in extent to funds in respect of the amount actually received by the Issuer. Following any Change of Control Payment pursuant to this Section 6, the aggregate principal amount of the Notes Outstanding shall be reduced for all Noteholders in an amount equal to the aggregate principal amount of the Notes repurchased, and all amounts thereafter due and payable in respect of the Notes shall be payable based on the then Outstanding amount of the Notes after giving effect to such repurchase.
7. Repurchase of Notes Tendered upon an Asset Sale Offer
The Notes shall be subject to redemption upon the occurrence of any prepayment by the Borrower of amounts outstanding from time to time under the Credit and Guaranty Agreement and the Loan due to the occurrence of an Asset Sale Prepayment Event as further described under Section 7.7 of the Indenture.
8. Ranking.
The Notes shall be direct, senior, secured, limited recourse and unsubordinated Indebtedness of the Issuer and shall at all times rank pari passu without any preferences among themselves, with all other present and future obligations of the Issuer (other than obligations preferred by statute or by operation of Law).
9. Taxation.
(a) Except as compelled by law, the Issuer will make any and all payments of principal, premium, interest or any other amounts under the Indenture or in respect of the Notes free and clear of, and without withholding or deduction for or on account of, any Taxes imposed or levied by or on behalf of a Relevant Taxing Jurisdiction. If any such Taxes are required to be deducted or withheld:
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(i) the Issuer shall notify the Lender and the Indenture Trustee that it is required by law to withhold or deduct such Taxes;
(ii) the Issuer shall make all such withholdings and deductions; and
(iii) the Issuer shall pay the full amount withheld or deducted to the relevant taxation authority in accordance with applicable law.
(b) The sum payable by the Issuer under the Indenture shall be increased by the sum of (x) the Additional Amounts payable to the Issuer pursuant to the Participation Agreement and the Credit and Guaranty Agreement or the Loan Guarantees, respectively, and (y) the Tax Reimbursement Payments payable to the Issuer by the Borrower or the Guarantors pursuant to the Expense Reimbursement and Indemnity Agreement or the Loan Guarantees, respectively, after accounting for any Taxes withheld from such payments to the Issuer or otherwise payable by the Issuer in respect of such payments (“Note Additional Amounts”).
(c) All references to principal, interest or other amounts payable under the Indenture shall be deemed to include any Note Additional Amounts payable by the Issuer under this Section 9 or otherwise with respect to the Indenture. The foregoing obligations in this Section 9 shall survive any termination, defeasance or discharge of the Indenture.
(d) At least 10 Business Days prior to the first Interest Payment Date for the Notes, and, if there has been any change with respect to the matters set forth in the below mentioned certificate at least 10 Business Days prior to each Interest Payment Date for the Notes, the Issuer shall furnish to the Indenture Trustee an Officer’s Certificate instructing the Indenture Trustee as to any circumstances in which payments of principal of, premium (if any) or interest on the Notes due on such date shall be subject to deduction or withholding for or on account of any Taxes and the rate of any such deduction or withholding. The Issuer covenants to indemnify the Indenture Trustee and any other Paying Agents for, and to hold each harmless against, any loss, liability or expense reasonably incurred without gross negligence, bad faith or willful misconduct on their part, arising out of or in connection with actions taken or not taken by any of them in reliance on any certificate furnished to them pursuant to this paragraph or the failure to furnish any such certificate. The obligations of the Issuer under the preceding sentence shall survive the resignation or removal of the Indenture Trustee, the Registrar or any Paying Agent.
(e) The Issuer shall provide the Indenture Trustee with documentation reasonably satisfactory to the Indenture Trustee evidencing the payment of Taxes in respect of which the Issuer, the Borrower or any Note Guarantor has paid any Note Additional Amounts. Copies of such documentation shall be made available by the Indenture Trustee to the Noteholders or the other Paying Agents, as applicable, upon written request therefor.
10. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons and in minimum denominations of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof. A Noteholder may transfer or exchange Notes in accordance with the Indenture.
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11. Persons deemed owners.
The registered Noteholder of this Note may be treated as the owner of it for all purposes.
12. Unclaimed money.
The Indenture Trustee will pay to the Issuer upon request any money held for payment with respect to the Notes that remains unclaimed for two years, provided that before making such payment the Indenture Trustee may at the expense of the Issuer publish once in a newspaper of general circulation in New York City, or send to each Noteholder entitled to such money, notice that the money remains unclaimed and that after a date specified in the notice (at least 30 days after the date of the publication or notice) any remaining unclaimed balance of money will be repaid to the Issuer. After payment to the Issuer, Noteholders entitled to such money must look solely to the Issuer for payment, unless applicable law designates another Person, and all liability of the Indenture Trustee with respect to such money will cease.
13. Amendment, Waiver.
(a) Notwithstanding anything to the contrary in any Transaction Document, as a result of the pledge described in Article V of the Indenture, the Issuer shall not agree to any modification of the terms of any Transaction Document to which it is a party without having first received directions from the Indenture Trustee, acting upon the written instructions of the Required Holders, except as set forth under Section 12.1(c) and 12.2 of the Indenture.
(b) At the written direction or consent of the Required Holders, each of the Issuer and the Indenture Trustee shall, subject to Sections 12.3 and 12.4 of the Indenture, enter into an indenture or indentures supplemental hereto for the purpose of amending the provisions of the Indenture and the Issuer shall otherwise amend, modify or supplement any other Transaction Document to which it is a party; provided, however, that without the consent or direction of 90% of the aggregate principal amount of the then Outstanding Notes directly affected thereby, no such supplemental indenture or modification or amendment shall cause, with respect to the Indenture or any other Transaction Document, any of the following:
(i) change the maturity of any payment of principal of or any installment of interest on any Note;
(ii) reduce the principal amount or the rate of interest, or change the method of computing the amount of principal, interest or Note Additional Amounts, payable under any Transaction Document on any date;
(iii) change any Place of Payment where the principal of or interest under any Transaction Document is payable;
(iv) change the coin or currency in which the principal of or interest on any Transaction Document is payable;
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(v) impair the right of the Noteholders to institute suit for the enforcement of any payment on or after the date due;
(vi) release the security interest in the Trust Assets created under the Indenture or waive any of the payment obligations of the Issuer that would otherwise be payable to the Noteholders;
(vii) following the delivery of notice to the holders of the Notes by the Issuer (or the Indenture Trustee on behalf of the Issuer) of any Notes Change of Control Offer or Notes Asset Sale Offer, modify any such offer in a manner adverse to the Noteholders;
(viii) reduce the percentage in principal amount of the Outstanding Notes, the consent of whose Noteholders is required for any modification or the consent of whose Noteholders is required for any waiver of compliance with the Indenture; or
(ix) modify or change any of the provisions of the Indenture requiring consent or direction of Noteholders to amend, modify or waive any other provisions or terms except to increase any required percentage of consenting Noteholders or to provide that one or more provisions of the Indenture cannot be modified or waived without the consent of each Noteholder.
14. Defaults and Remedies.
If an Event of Default (other than an Event of Default specified in Section 10(g) or Section 10(h) of the Credit and Guaranty Agreement) has occurred and is continuing, the Indenture Trustee or the Noteholders of at least 25% in principal amount of Outstanding Notes may declare the unpaid principal of and premium, if any, and accrued and unpaid interest on all the Notes to be immediately due and payable by notice in writing to the Issuer (and the Indenture Trustee if given by the Noteholders) specifying the Event of Default and that it is a “notice of acceleration.” Upon such declaration the principal and interest shall be due and payable immediately.
Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture. The Required Holders (or such other percentage of Noteholders of Outstanding Notes as may be permitted or required pursuant to the terms of the Indenture) may direct the time, method and place of conducting any proceeding for any remedy available to the Indenture Trustee or exercising any trust or power conferred on the Indenture Trustee. However, the Indenture Trustee may refuse to follow any direction that conflicts with law or the Indenture, is unduly prejudicial to the rights of other Noteholders, or would involve the Indenture Trustee in personal or financial liability or expense for which the Indenture Trustee has not received an indemnity or security satisfactory to it.
15. Indenture Trustee Dealings with the Issuer.
Subject to certain limitations set forth in the Indenture, the Indenture Trustee under the Indenture, in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Issuer or its
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Affiliates and may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not Indenture Trustee.
16. Limited Recourse.
(a) Notwithstanding any other provision of the Indenture, all payments to be made by, and all liabilities of, the Cayman Trustee under the Indenture, this Note and any other Transaction Document to which the Cayman Trustee is a party shall be made only from, and limited to, the income and proceeds of the Trust Assets and only to the extent that the Cayman Trustee shall have received income or proceeds from the Trust Assets sufficient to make such payments or satisfy such liabilities in accordance with the terms hereto. No recourse shall be had to the assets of the Cayman Trustee which are owned by it beneficially or held by it as trustee for any other trust. The Cayman Trustee shall not sell or otherwise dispose of any of the Trust Assets unless otherwise specifically permitted under the Indenture and the Cayman Trustee shall not take any actions under the Participation Agreement except as authorized by the Noteholders in accordance with Section 10.6 of the Indenture. The Cayman Trustee shall not sell or otherwise dispose of the Participation without the consent of all of the Noteholders and payment of all amounts to the Indenture Trustee and agents appointed pursuant to the Indenture.
(b) Following the application of the income and proceeds of the Trust Assets in accordance with the Indenture, none of the Noteholders will be entitled to take any further action to recover any sums due but remaining unpaid under the Indenture or the Notes and all remaining claims in respect of the Indenture and the Notes will thereupon be extinguished and shall not thereafter revive.
(c) No incorporator, director, officer, employee, stockholder or controlling Person of the Cayman Trustee shall have any liability for any obligations of the Cayman Trustee under the Notes or the Indenture or the other Transaction Documents or for any claim based on, in respect of or by reason of such obligations or their creation. By accepting a Note, each Noteholder waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Notes.
17. Authentication.
This Note shall not be valid until an authorized signatory of the Indenture Trustee (or an Authenticating Agent acting on its behalf) signs the certificate of authentication on the other side of this Note.
18. CUSIP or ISIN Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures the Issuer has caused CUSIP or ISIN numbers to be printed on the Notes and has directed the Indenture Trustee to use CUSIP or ISIN numbers in notices of redemption as a convenience to Noteholders. No representation is made as to the accuracy of such numbers either as printed on the Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
19. Governing Law.
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This Note shall be governed by, and construed in accordance with, the law of the State of New York.
20. Currency Rate Indemnity.
The Issuer will indemnify each of the Indenture Trustee and the Noteholders as provided in the Indenture in respect of the conversion of currency relating to the Notes and the Indenture.
21. Agent for Service; Submission to Jurisdiction; Waiver of Immunities.
The Issuer and the Note Guarantors have consented to the exclusive jurisdiction of the U.S. federal and New York state courts in the Borough of Manhattan, The City of New York, and agreed that all disputes under the Indenture, the Notes, the Note Guarantees and the other Transaction Documents may be submitted to the jurisdiction of such courts. The Issuer and the Guarantors have irrevocably consented to and waived to the fullest extent permitted by law any objection that the Issuer or the Note Guarantors may have to the laying of venue of any suit, forum, action or proceeding against the Issuer or the Note Guarantors or any of their respective properties, assets and revenues with respect to the Indenture, the Note Guarantees and the other Transaction Documents or any such suit, action or proceeding in any such court and any right to which the Issuer or the Note Guarantors may be entitled on account of place of residence or domicile.
To the extent that the Issuer or any Note Guarantor or any of their respective revenues, assets or properties shall be entitled to any immunity from suit, from the jurisdiction of any such court, from attachment prior to judgment, from attachment in aid of execution of judgment, from execution of a judgment or from any other legal or judicial process remedy, the Issuer and the Note Guarantors have irrevocably agreed not to claim and will irrevocably waive such immunity to the fullest extent permitted by the laws of such jurisdiction.
The Issuer and the Note Guarantors have agreed that service of all writs, claims, process and summons in any suit, action or proceeding against the Issuer or the Guarantors or their respective properties, assets or revenues with respect to the Indenture, the Notes, the Note Guarantees and the other Transaction Documents or any suit, action or proceeding to enforce or execute any judgment brought against them in the State of New York may be made upon C T Corporation Systems, located at 28 Liberty Street, New York, New York 10005, and the Issuer and the Guarantors have irrevocably appointed C T Corporation Systems as their agent to accept such service of any and all such writs, claims, process and summonses.
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ASSIGNMENT FORM
For value received
hereby sells, assigns and transfers unto
(Please insert social security
or other identifying number of assignee)
(Please print or type name and address,
including zip code, of assignee)
the within Note and does hereby irrevocably constitute and appoint ________ attorney to transfer the Note on the books of the Note Registrar with full power of substitution in the premises.
Date: Your signature: (Sign exactly as your name appears on the face of this Note)
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SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The following increases or decreases in this Global Note have been made:
| Date of Increase or Decrease | Amount of decrease in Principal Amount of this Global Note | Amount of increase in Principal Amount of this Global Note | Principal Amount of this Global Note following such decrease or increase | Signature of authorized signatory of Trustee or Note Custodian | ||||||||||
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EXHIBIT B
FORM OF AUTHENTICATION AND DELIVERY ORDER
The Bank of New York Mellon, as Indenture Trustee
385 Rifle Camp Road, 3rd Floor
Woodland Park, New Jersey 07424
Attention: Alicia Coronado/Structured Cross-Border
385 Rifle Camp Road, 3rd Floor
Woodland Park, New Jersey 07424
Attention: Alicia Coronado/Structured Cross-Border
Ladies and Gentlemen:
Pursuant to Section 2.2 of the Indenture dated as of February 3, 2022 (the “Indenture”) among Walkers Fiduciary Limited, as trustee of the CT Trust, as issuer (the “Issuer”), Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as Guarantors and The Bank of New York Mellon, as indenture trustee (the “Indenture Trustee”), Registrar, Paying Agent and Transfer Agent, you are hereby ordered in your capacity as Indenture Trustee to authenticate, on the date hereof, U.S.$900,000,000 of the Issuer’s 5.125% Senior Notes due 2032 (the “Notes”) in the manner provided in the Indenture in global form and in the aggregate principal amount of U.S.$[●] in respect of the Rule 144A Restricted Global Note (CUSIP No. 12659B AA2) and U.S.$[●] in respect of the Regulation S Unrestricted Global Note (CUSIP No. G2588B AA2) heretofore duly executed by a proper Authorized Representative of the Issuer and delivered to you as provided in the Indenture and to hold the Notes in your capacity as custodian for The Depository Trust Company. Capitalized terms used but not defined herein have the meanings assigned to them in the Indenture.
Date: February 3, 2022
[Signature page follows]
(i)
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IN WITNESS WHEREOF, I have signed this certificate.
Dated: February 3, 2022
WALKERS FIDUCIARY LIMITED, AS TRUSTEE OF THE CT TRUST
By:
Name:
Title:
Name:
Title:
By:
Name:
Title:
Name:
Title:
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Receipt of the Global Notes is hereby
acknowledged.
acknowledged.
Date: February 3, 2022
THE BANK OF NEW YORK MELLON. as Indenture Trustee
By:
Name:
Title:
Name:
Title:
:
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EXHIBIT C
FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH TRANSFERS PURSUANT TO REGULATION S
[Date]
The Bank of New York Mellon
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Mellon
385 Rifle Camp Road, 3rd Floor
Woodland, Park, NJ 07424
Attention: Alicia Coronado / Structured Cross-Border
Re: Walkers Fiduciary Limited, as trustee of
CT Trust, 5.125% Senior Notes due 2032
CT Trust, 5.125% Senior Notes due 2032
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of February 3, 2022 (as amended and supplemented from time to time, the “Indenture”), among Walkers Fiduciary Limited, as trustee of the CT Trust (the “Company”), as issuer, Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as Guarantors and The Bank of New York Mellon, as Indenture Trustee, Note Registrar, Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to U.S.$900,000,000 aggregate principal amount of the Company’s 5.125% Senior Notes due 2032 (the “Notes”) [in the case of a transfer of an interest in a Rule 144A Restricted Global Note: which represent an interest in a Rule 144A Restricted Global Note (CUSIP: [ ]/ISIN: [ ]) beneficially owned by] [in the case of a transfer of a certificated Note: held in the name of] the undersigned (“Transferor”) in connection with the request to effect the transfer of such Notes in exchange for an equivalent beneficial interest in a Regulation S Unrestricted Global Note (CUSIP: [ ]/ISIN: [ ]).
In connection with such request, the Transferor confirms that such sale has been effected pursuant to and in accordance with Regulation S under the Securities Act of 1933, as amended (the “Securities Act”), and, accordingly, the Transferor represents that:
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the offer of the Notes was not made to a person in the United States;
either (i) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on the Transferor’s behalf reasonably believed that the transferee was outside the United States (within the meaning of Regulation S) or (ii) the transaction is being executed in, on or through the facilities of a designated offshore securities market (within the meaning of Regulation S) and neither the Transferor nor any person acting on the Transferor’s behalf knows that the transaction has been pre-arranged with a buyer in the United States;
no directed selling efforts have been made in the United States in contravention of the requirements of Rule 904(b) of Regulation S;
the Transferor is not a distributor of the Notes, an affiliate of the Company, an affiliate of any distributor of the Notes or a person acting on behalf of any of the foregoing;
the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and
the Transferor is the beneficial owner of the principal amount of Notes being transferred.
In addition, if the sale is made during the period ending forty (40) days after the original issuance of the Notes and the transferee will take delivery in the form of a beneficial interest in the Regulation S Unrestricted Global Note, such beneficial interest will be held immediately after such transfer only in or through accounts maintained at the Registered Depositary through Euroclear or Clearstream (or by agent members acting for the account thereof).
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours, [Name of Transferor]
By: _____________________________
[Authorized Signature]
[Authorized Signature]
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EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
TO QUALIFIED INSTITUTIONAL BUYERS (QIBS) WHO ARE ALSO QUALIFIED PURCHASERS
TO QUALIFIED INSTITUTIONAL BUYERS (QIBS) WHO ARE ALSO QUALIFIED PURCHASERS
[Date]
The Bank of New York Mellon
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Mellon
385 Rifle Camp Road, 3rd Floor
Woodland, Park, NJ 07424
Attention: Alicia Coronado / Structured Cross-Border
Re: Walkers Fiduciary Limited, as trustee of CT Trust, 5.125% Senior Notes due 2032
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of February 3, 2022 (as amended and supplemented from time to time, the “Indenture”), among Walkers Fiduciary Limited, as trustee of the CT Trust (the “Company”), as issuer, Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as Guarantors and The Bank of New York Mellon, as Indenture Trustee, Note Registrar, Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
This letter relates to U.S.$900,000,000 aggregate principal amount of the Company’s 5.125% Senior Notes due 2032 (the “Notes”) [in the case of a transfer of an interest in a Regulation S Unrestricted Global Note: which represents an interest in a Regulation S Unrestricted Global Note (CUSIP: [ ]/ISIN: [ ]) beneficially owned by] [in the case of a transfer of a certificated Note: which are held in the name of] the undersigned (the “Transferor”) in connection with the request to effect the transfer of such Notes in exchange for an equivalent beneficial interest in the Rule 144A Restricted Global Note (CUSIP: [ ]/ISIN: [ ]).
In connection with such request, the Transferor does hereby certify that the [transferee is a Qualified Institutional Buyer that is also a Qualified Purchaser] [Transferor
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reasonably believes that the transferee is a Qualified Institutional Buyer, is obtaining such beneficial interest in a transaction meeting the requirements of Rule 144A and in accordance with any applicable securities laws of any state of the United States or any other jurisdiction, and is also a Qualified Purchaser].
You and the Company are entitled to rely upon this letter and are irrevocably authorized to produce this letter or a copy hereof to any interested party in any administrative or legal proceedings or official inquiry with respect to the matters covered hereby.
Very truly yours,
[Name of Transferor]
By: _____________________________
[Authorized Signature]
[Authorized Signature]
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EXHIBIT E
FORM OF QUALIFIED INSTITUTIONAL BUYER/QUALIFIED PURCHASER CERTIFICATION
[Letterhead of Prospective Note Purchaser/Exchanger]
[Date]
The Bank of New York Mellon
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
240 Greenwich Street
Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
With a copy to:
The Bank of New York Mellon
385 Rifle Camp Road, 3rd Floor
Woodland, Park, NJ 07424
Attention: Alicia Coronado / Structured Cross-Border
Re: CT Trust,
5.125% Senior Notes due 2032
5.125% Senior Notes due 2032
Ladies and Gentlemen:
Reference is hereby made to the Indenture, dated as of February 3, 2022 (as amended and supplemented from time to time, the “Indenture”), among Walkers Fiduciary Limited, as trustee of the CT Trust, as issuer (the “Issuer”), Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as Guarantors and The Bank of New York Mellon, as Indenture Trustee, Note Registrar, Paying Agent and Transfer Agent. Capitalized terms used but not defined herein shall have the meanings given them in the Indenture.
In connection with the undersigned’s purchase of $US[ ] in aggregate principal amount of the Issuer’s 5.125% Senior Notes due 2032 to be represented by [Note ] (CUSIP: [ ]/ISIN: [ ] (the “Notes”), as set forth below, the undersigned hereby represents, acknowledges and agrees as follows:
It is (A) a “qualified institutional buyer” as defined in Rule 144A under the Securities Act of 1933, as amended, and is acquiring the Notes in reliance on the exemption from Securities Act registration provided by Rule 144A thereunder and (B) also a “qualified purchaser” for purposes of Section 3(c)(7) of the Investment Company Act of 1940, as amended.
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Name of Purchaser:
Dated:
By: ______________________________
Name:
Title:
Name:
Title:
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EXHIBIT F
FORM OF SECTION 3(C)(7) REMINDER NOTICE
THE DEPOSITORY TRUST COMPANY IMPORTANT
DATE: [ ]
TO: ALL PARTICIPANTS
FROM: Walkers Fiduciary Limited,
as trustee of CT Trust (the “Issuer”)
as trustee of CT Trust (the “Issuer”)
SUBJECT: Section 3(c)(7) restrictions for 5.125% Senior Notes due 2032
(A) CUSIP Number: 12659B AA2
(B) Note Description: 5.125% Senior Notes due 2032
(C) Offer Amount: $900,000,000
(D) Initial Purchasers: Goldman Sachs & Co. LLC and J.P. Morgan Securities LLC
(E) Indenture Trustee: The Bank of New York Mellon
(F) Issue Date: February 3, 2022
Special Instructions: See Attached Important Instructions from the Issuer.
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Walkers Fiduciary Limited,
as trustee of the CT Trust (the “Issuer”),
c/o The Bank of New York Mellon
240 Greenwich Street, Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
as trustee of the CT Trust (the “Issuer”),
c/o The Bank of New York Mellon
240 Greenwich Street, Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
IMPORTANT INSTRUCTIONS
5.125% Senior Notes due 2032 (the “Notes”)
CUSIP Number: 12659B AA2
CUSIP Number: 12659B AA2
The Issuer and the Initial Purchaser are putting The Depository Trust Company (“DTC”) participants on notice that they are required to follow these purchase and transfer restrictions with regard to the above-referenced Notes.
In order to qualify for the exemption provided by Section 3(c)(7) under the Investment Company Act of 1940, as amended (the “Investment Company Act”), and the exemption provided by Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), offers, sales and resales of the Notes issued by Walkers Fiduciary Limited, as trustee of the CT Trust, within the United States or to U.S. persons (within the meaning of Regulation S under the Securities Act (“U.S. Persons”)) may only be made to “qualified institutional buyers” (“QIBs”) within the meaning of Rule 144A who are also “qualified purchasers” (“QP”) within the meaning of Section 2(a)(51) of the Investment Company Act. Each purchaser of the Notes (including the registered holders and beneficial owners of the Notes as they exist from time to time, including as a result of transfers, in each case, as of the time of purchase) represents and agrees, on its own behalf and on behalf of each account for which it is purchasing, among other things, that: (1) it is a QIB who is also a QP (a “QIB/QP”), (2) it is aware the sale of the Notes to it is being made in reliance on Rule 144A, (3) it is acquiring such Notes for its own account or the account of a QIB/QP as to which the purchaser exercises sole investment discretion, (4) it and each such account (i) is not a broker-dealer which owns and invests on a discretionary basis less than U.S.$25,000,000 in securities of unaffiliated issuers, (ii) is not formed for the purpose of investing in the Issuer, (iii) has not invested more than 40% of its assets in the Notes (or beneficial interests therein) and/or other securities of the Trust after giving effect to the purchase of the Notes (or beneficial interests therein) (unless all of its beneficial owners are QIBs who are also Qualified Purchasers), (iv) is not a participant-directed employee plan, such as a 401(K) plan, or a trust holding the asset of such a plan, unless the investment decisions with respect to such plan are made solely by the fiduciary, trustee or sponsor of such plan, (v) is not a partnership, common trust fund or corporation, special trust, pension fund or retirement plan, or other entity, in which the partners, beneficiaries, beneficial owners, participants, shareholders or other equity owners, as the case may be, may designate the particular investment to be made, or the allocation thereof, unless all such partners, beneficiaries, beneficial owners, participants, shareholders or other equity owners are QIBs who are also Qualified Purchasers; (vi) will provide notice of the transfer restrictions to any subsequent transferees and (vii) acknowledges that the Issuer may receive a list of participants holding positions in the global note or notes representing the Notes from one or more book-entry depositaries, (5) it understands that the Company is not and will not be registered as an “investment company” under the Investment
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Company Act, (6) it understands and acknowledges that the Notes are being offered only in a transaction not involving any public offering in the United States, within the meaning of the Securities Act, and the Notes have not been and will not be registered under the Securities Act or within any securities regulatory authority of any U.S. state, the Securities and Commodities Market Law of Guatemala or any other jurisdiction, and may not be offered, resold, pledged or otherwise transferred except (i) to the Issuer or the Borrower, (ii) to a person who the seller reasonably believes is a QIB/QP in a transaction meeting the requirements of Rule 144A or (iii) upon delivery of a written certification in the form provided in the Indenture, in an offshore transaction in accordance with Rule 904 of Regulation S, in each case in accordance with all applicable securities laws of the states of the United States, (7) it understands and acknowledges that the Notes (or any interest therein) may be purchased, sole, pledged or otherwise transferred only in minimum principal amounts of U.S.$200,000 and integral multiples of U.S.$1,000 in excess thereof and (8) either (i) it is not and is not acquiring the Notes on behalf of, or with the assets of, any (a) “employee benefit plan” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) which is subject to Title I of ERISA, “plan” which is subject to Section 4975 of the U.S. Internal Revenue Code of 1986, as amended (the “Code”) or entity whose underlying assets are treated as assets of any such employee benefit plan or plan pursuant to the U.S. Department of Labor regulation codified at 29 C.F.R. Section 2510.3-101, as modified by Section 3(42) of ERISA, or (b) governmental, church or non-U.S. plan that is subject to any federal, state, local or non-U.S. law that is substantially similar to the provisions of Section 406 of ERISA or Section 4975 of the Code (“Similar Law”), or entity whose assets are treated as assets of any such plan, or (ii) its purchase, holding and disposition of a Note will not constitute or result in a non-exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code, or violation of applicable Similar Law. Each purchaser further understands that the Notes will bear a Restrictive Legend with respect to such transfer restrictions. See “Transfer Restrictions” in the final offering memorandum dated as of February 3, 2022.
The Indenture provides that if, notwithstanding the restrictions on contained therein, the Issuer determines that any beneficial owner of (A) a Regulation S Global Note (or any interest therein) is a U.S. Person (within the meaning of Regulation S under the Securities Act) or (B) a Rule 144A Global Note is not both (i) a QIB and (ii) a QP (any such Person, a “Non-Permitted Holder”), then the Issuer may require, by notice to such Non-Permitted Holder, that such Non- Permitted Holder sell all of its right, title and interest to such Note (or interest therein) to a Person that (1) is not a U.S. Person (in the case of a Person holding its interest through a Regulation S Unrestricted Global Note) or (2) in the case of a Person holding its interest through a Rule 144A Restricted Global Note, is both (i) a QIB and (ii) a QP, with such sale to be effected within 30 days after notice of such sale requirement is given. If such Non-Permitted Holder fails to effect the transfer required within such 30-day period, (i) upon written direction from the Issuer, the Indenture Trustee, on behalf of and at the expense of the Issuer, shall cause such Non- Permitted Holder’s interest in such Note to be transferred in a commercially reasonable sale to a Person that certifies to the Indenture Trustee and the Issuer in connection with such transfer, that such Person (X) is not a U.S. person (in the case of a Person holding its interest through a Regulation S Unrestricted Global Note) or (Y) is both (i) a QIB and (ii) a QP (in the case of a Person holding its interest through a Rule 144A Restricted Global Note) and pending such transfer, no further payments will be made in respect of such Note held by such Non-Permitted Holder.
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The restrictions on transfer required by the Issuer (outlined above) will be reflected under the notation “3c7” in DTC’s User Manuals and DTC’s Reference Directory.
Capitalized terms not defined herein are as defined in the Indenture, dated February 3, 2022, among Issuer, certain guarantors party thereto and The Bank of New York Mellon, as trustee, note registrar, paying agent and transfer agent.
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EXHIBIT G
Walkers Fiduciary Limited,
as trustee of the CT Trust (the “Issuer”),
c/o The Bank of New York Mellon
240 Greenwich Street, Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
as trustee of the CT Trust (the “Issuer”),
c/o The Bank of New York Mellon
240 Greenwich Street, Floor 7 West
New York, New York 10286
Attention: Corporate Trust Administration
[_____], 2022
Bloomberg, L.P.
731 Lexington Avenue
New York, New York 10022
731 Lexington Avenue
New York, New York 10022
Ladies and Gentlemen:
Pursuant to the indenture, dated as of February 3, 2022 (the “Indenture”), among Walkers Fiduciary Limited, acting as trustee of the CT Trust established pursuant to a Declaration of Trust, dated January 12, 2022 under the laws of the Cayman Islands, as issuer (the “Issuer”), Comunicaciones Celulares, S.A., Cloud2Nube, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A. and Servicios Innovadores de Comunicación y Entretenimiento, S.A., as Guarantors and The Bank of New York Mellon, as trustee (the “Indenture Trustee”), Note Registrar, Paying Agent and Transfer Agent, the Issuer is issuing US$900,000,000 5.125% Senior Notes due 2032 (collectively, the “Notes”). The Notes will be issued pursuant to Rule 144A and Regulation S under the Securities Act of 1933, as amended. CUSIP numbers issued by the CUSIP Service Bureau have been obtained for the Notes and are set forth on Schedule A of this letter.
The Notes will be issued to The Depository Trust Company (“DTC”) in the nominee name of Cede & Co. at closing. Beneficial interests in the Notes will be held and transferred by book entry either directly through DTC or through one or more participants in DTC. The Issuer is a “3(c)(7) Issuer”, meaning that the Issuer has not registered as an Investment Company within the meaning of the Investment Company Act of 1940, as amended, upon reliance on the exemption from registration thereunder contained in Section 3(c)(7) thereof. Accordingly, the Issuer hereby requests that Bloomberg, L.P. include the following (or substantially similar language) at the bottom of each DES screen containing information about the Rule 144A Global Notes (CUSIP 12659B AA2): “ISS’D UNDER 144A/3C7. SEE RESTRICTIONS IN OM-QIB/QP ONLY. NON-COMPLIANT PURCHASE MAY BE VOIDED AND/OR RESULT IN FORCED SALE”.
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Very truly yours,
WALKERS FIDUCIARY LIMITED, ACTING AS TRUSTEE OF THE CT TRUST
By: ____________________________________
Name:
Title:
Name:
Title:
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Schedule A
CUSIPs
144A: 12659B AA2
Reg S: G2588B AA2
Reg S: G2588B AA2
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EXHIBIT H
REQUEST TO THE DEPOSITORY TRUST COMPANY
Walkers Fiduciary Limited,
as trustee of CT Trust
Reference is made to the Indenture dated as of February 3, 2022 among Walkers Fiduciary Limited, an ordinary company incorporated with limited liability in the Cayman Islands, as trustee (the “Cayman Trustee”) of CT Trust (the “Trust”) established under the Declaration of Trust, dated as of January 12, 2022, as issuer (the “Issuer”), Comunicaciones Celulares, S.A., Comunicaciones Corporativas, S.A., Distribuidora Central de Comunicaciones, S.A., Distribuidora de Comunicaciones de Occidente, S.A., Distribuidora de Comunicaciones de Oriente, S.A., Distribuidora Internacional de Comunicaciones, S.A., Navega.com, S.A., Servicios Especializados en Telecomunicaciones, S.A., Servicios Innovadores de Comunicación y Entretenimiento, S.A. and Cloud2Nube, S.A., as Guarantors, The Bank of New York Mellon, as indenture trustee (the “Indenture Trustee”), Registrar, Paying Agent and Transfer Agent. Capitalized terms used and not otherwise defined herein have the respective meanings set forth in the Indenture.
Pursuant to the Indenture, the Issuer hereby instructs you, as the Registered Depositary, to take the following steps in connection with the Rule 144A Global Notes (CUSIP 12659B AA2):
(i) to include the “3c7” and “144A” markers in the Registered Depositary 20-character security descriptor and the 48-character additional descriptor for the Rule 144A Global Notes in order to indicate that sales are limited to QIBs that are also Qualified Purchasers;
(ii) to cause (i) each physical Registered Depositary delivery order ticket delivered by the Registered Depositary to purchasers to contain the Registered Depositary 20-character security descriptors and (ii) each Registered Depositary delivery order ticket delivered by the Registered Depositary to purchasers in electronic form to contain the “3c7” and “144A” indicators and the related user manual for participants, which shall contain a description of the relevant restrictions;
(iii) to send a notice substantially in the form attached hereto to all Registered Depositary participants in connection with the offering of the Rule 144A Global Notes;
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(iv) to include the Rule 144A Global Notes in the Registered Depositary’s “Reference Directory” of Section 3(c)(7) offerings;
(v) to include in all “confirms” of trades of the Rule 144A Global Notes in the Registered Depositary CUSIP numbers with a “fixed field” attached to the CUSIP number that has the “3c7” and “144A” markers; and
(vi) to deliver to the Issuer and the Indenture Trustee from time to time a list of all Registered Depositary participants holding an interest in the Rule 144A Global Notes.
| By: | |||||
| Name: | |||||
Title: Authorized Signatory Walkers Fiduciary Limited as trustee of CT Trust | |||||
H-2
#95429618v7
Execution version
TERMS AND CONDITIONS FOR
MILLICOM INTERNATIONAL CELLULAR S.A.
SEK 2,250,000,000
SEK 2,250,000,000
SENIOR UNSECURED FLOATING RATE SUSTAINABILITY NOTES
ISIN: SE0017133754
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SELLING RESTRICTIONS
Other than the registration of the Notes under Swedish law, no action is being taken that would or is intended to permit a public offering of the Notes or the possession, circulation or distribution of this document or any other material relating to the Issuer or the Notes in any jurisdiction, where action for that purpose is required. Persons into whose possession this document comes are required by the Issuer to inform themselves about, and to observe, any applicable restrictions.
PRIVACY STATEMENT
Each of the Issuer, the Trustee and the Issuing Agent may collect and process personal data relating to the Noteholders, the Noteholders’ representatives or agents, and other persons nominated to act on behalf of the Noteholders pursuant to the Finance Documents (including name, contact details and, when relevant, holding of Notes). The personal data relating to the Noteholders is primarily collected from the registry kept by the CSD. The personal data relating to other persons is primarily collected directly from such persons.
The personal data collected will be processed by the Issuer, the Trustee and the Issuing Agent for the following purposes (i) to exercise their respective rights and fulfil their respective obligations under the Finance Documents, (ii) to manage the administration of the Notes and payments under the Notes, (iii) to enable the Noteholders to exercise their rights under the Finance Documents and (iv) to comply with their respective obligations under applicable laws and regulations.
The processing of personal data by the Issuer, the Trustee and the Issuing Agent in relation to items (i) to (iii) above is based on their legitimate interest in exercising their respective rights and fulfilling their respective obligations under the Finance Documents. In relation to item (iv), the processing is based on the fact that such processing is necessary for compliance with a legal obligation incumbent on the Issuer, the Trustee or the Issuing Agent (as applicable). Unless otherwise required or permitted by law, the personal data collected will not be kept longer than necessary given the purpose of the processing.
Personal data collected may be shared with third parties, such as the CSD, when necessary to fulfil the purpose for which such data is processed.
Subject to any legal preconditions, the applicability of which have to be assessed in each individual case, data subjects have rights as follows. Data subjects have the right to get access to their personal data and may request the same in writing at the address of the Issuer, the Trustee or the Issuing Agent (as applicable). In addition, data subjects have the right to (i) request that personal data is rectified or erased, (ii) object to specific processing, (iii) request that the processing be restricted and (iv) receive personal data provided by themselves in machine-readable format.
Data subjects are also entitled to lodge complaints with the relevant supervisory authority if dissatisfied with the processing carried out.
The Issuer’s, the Trustee's and the Issuing Agent’s addresses, and the contact details for their respective data protection officers (if applicable), are found on their respective websites: www.millicom.com, www.intertrustgroup.com and www.dnb.se.
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TABLE OF CONTENTS
1. Definitions and construction | |||||
2. STATUS OF THE NOTES | |||||
3. Use of Proceeds | |||||
4. conditions Precedent | |||||
5. NOTES IN BOOK-ENTRY FORM | |||||
6. RIGHT TO ACT on behalf of A NOTEHOLDER | |||||
7. PAYMENTS IN RESPECT OF THE NOTES | |||||
8. INTEREST | |||||
9. REDEMPTION and repurchase OF THE NOTES | |||||
10. INFORMATION TO NOTEHOLDERS | |||||
11. GENERAL UNDERTAKINGS | |||||
12. ACCELERATION OF THE NOTES | |||||
13. DISTRIBUTION OF PROCEEDS | |||||
14. DECISIONS BY NOTEHOLDERS | |||||
15. NOTEHOLDERS' MEETING | |||||
16. WRITTEN PROCEDURE | |||||
17. AMENDMENTS and waivers | |||||
18. REPLACEMENT OF BASE RATE | |||||
19. APPOINTMENT AND REPLACEMENT OF THE TRUSTEE | |||||
20. APPOINTMENT AND REPLACEMENT OF THE ISSUING Agent | |||||
21. APPOINTMENT AND REPLACEMENT OF THE CSD | |||||
22. NO DIRECT ACTIONS BY NOTEHOLDERS | |||||
23. PRESCRIPTION | |||||
24. NOTICES AND PRESS RELEASES | |||||
25. FORCE MAJEURE AND LIMITATION OF LIABILITY | |||||
26. ContractS (rights of third Parties) Act 1999 | |||||
27. GOVERNING LAW AND JURISDICTION | |||||
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1.DEFINITIONS AND CONSTRUCTION
1.1Definitions
In these terms and conditions (the "Terms and Conditions"):
"Account Operator" means a bank or other party duly authorised to operate as an account operator pursuant to the Financial Instruments Accounts Act and through which a Noteholder has opened a Securities Account in respect of its Notes.
"Acquired Debt" means Financial Indebtedness of a person or its Subsidiary:
(a)incurred and outstanding on the date on which such person (i) was acquired by a Group Company or (ii) is merged, consolidated, amalgamated or otherwise combined with (including pursuant to any acquisition of assets and assumption of related liabilities) a Group Company; or
(b)incurred to provide all or part of the funds utilised to consummate the transaction or series of related transactions pursuant to which such person became a Restricted Subsidiary of the Issuer or was otherwise acquired by the Issuer or its Restricted Subsidiary; provided that, after giving pro forma effect to the transactions by which such person became a Restricted Subsidiary of the Issuer or is merged, consolidated, amalgamated or otherwise combined with a Group Company, (i) the Issuer would have been able to incur $1.00 of additional Financial Indebtedness pursuant to clause (a) of Condition 11.3 hereof; or (ii) the Net Leverage Ratio would not be greater than such ratio before giving effect to such transactions.
"Additional Notes" means any Notes issued after the First Issue Date on one or more occasions.
"Adjusted Nominal Amount" means the Total Nominal Amount less the Nominal Amount of all Notes owned by a Group Company, an Affiliate of a Group Company or any other person owning any Notes that has undertaken towards a Group Company or its Affiliate to exercise its voting rights in respect of such Notes in accordance with the instructions given by a Group Company or an Affiliate thereof, in each case, irrespective of whether such person is directly registered as owner of such Notes.
"Affiliate" of any specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified person. For the purposes of this definition, "control" when used with respect to any specified person means the power to direct the management and policies of such person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Asset Disposition" means any transfer, conveyance, sale, lease or other disposition by a Group Company (including a consolidation or merger or other sale of any Restricted Subsidiary with, into or to another person in a transaction in which such Restricted Subsidiary ceases to be a Restricted Subsidiary of the Issuer, but excluding a disposition by a Restricted Subsidiary of the Issuer to the Issuer or a Restricted Subsidiary of the Issuer which is an 80 per cent. or more owned Restricted Subsidiary of the Issuer) of (i) shares of Capital Stock (other than directors' qualifying shares and shares to be held by third parties to satisfy applicable legal requirements) or other ownership interests of a Restricted
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Subsidiary, (ii) substantially all of the assets of a Group Company representing a division or line of business or (iii) other assets or rights of a Group Company outside of the ordinary course of business; provided that the term "Asset Disposition" shall not include:
(a)any dispositions of assets in a single transaction or series of transactions with an aggregate Fair Market Value in any calendar year of not more than the greater of (x) $25 million (or its equivalent in any other currency or currencies) and (y) 1 per cent. of Total Assets (with unused amounts in any calendar year being carried over to the next succeeding year subject to a maximum of the greater of $25 million (or its equivalent in any other currency or currencies) and 1 per cent. of Total Assets of carried over amounts for any calendar year);
(b)any disposition of Tower Equipment, including any sale/leaseback transaction; provided that any cash or Cash Equivalents received in connection with such disposition or sale/leaseback transaction must be applied in accordance with Condition 11.5;
(c)any Specified Subsidiary Sale;
(d)a transfer of assets between or among Group Companies;
(e)the issuance of Capital Stock by a Restricted Subsidiary to another Group Company;
(f)any disposition of Capital Stock of a Restricted Subsidiary pursuant to an agreement or other obligation with or to a person (other than a Group Company) from whom such Restricted Subsidiary was acquired or from whom such Restricted Subsidiary acquired its business and assets (having been newly formed in connection with such acquisition), made as part of such acquisition and in each case comprising all or a portion of the consideration in respect of such sale or acquisition;
(g)the sale, lease or other transfer of products, services, accounts receivable, inventory or other assets in the ordinary course of business and any sale or other disposition of damaged, surplus, worn-out or obsolete assets;
(h)dispositions in connection with Permitted Liens;
(i)disposals of assets, rights or revenue not constituting part of the Permitted Business and other disposals of non-core assets acquired in connection with any acquisition permitted under these Terms and Conditions;
(j)licences and sublicences of a Group Company in the ordinary course of business;
(k)any surrender or waiver of contract rights or settlement, release, recovery on or surrender of contract, tort or other claims in the ordinary course of business;
(l)the disposition of receivables in connection with the compromise, settlement or collection thereof in the ordinary course of business or in bankruptcy or similar proceedings;
(m)the granting of Liens not prohibited by Condition 11.4 hereof;
(n)a transfer or disposition of assets that is governed by the provisions of these Terms and Conditions described under Condition 11.6 hereof;
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(o)the sale or other disposition of cash or Cash Equivalents;
(p)the foreclosure, condemnation or any similar action with respect to any property or other assets;
(q)sales of accounts receivable and related assets or an interest therein of the type specified in the definition of "Qualified Receivables Transaction" to a Receivables Entity, and Investments in a Receivables Entity consisting of cash or securitisation obligations;
(r)any disposition or expropriation of assets or Capital Stock which a Group Company is required by, or made in response to concerns raised by, a regulatory authority or court of competent jurisdiction;
(s)any disposition of Capital Stock, Financial Indebtedness or other securities of an Unrestricted Subsidiary;
(t)disposal of non-core assets acquired in connection with any acquisition permitted under these Terms and Conditions;
(u)any disposition of assets to a person who is providing services related to such assets, the provision of which have been or are to be outsourced by a Group Company to such person;
(v)any disposition of investments in joint ventures to the extent required by, or made pursuant to, customary buy/sell arrangements between the joint venture parties set forth in joint venture arrangements and similar binding agreements; provided that any cash or Cash Equivalents received in such disposition are applied in accordance with the requirements set forth in Condition 11.5;
(w)any sale or disposition with respect to property built, repaired, improved, owned or otherwise acquired by a Group Company pursuant to customary sale and leaseback transactions, asset securitisations and other similar financings permitted by these Terms and Conditions;
(x)any dispositions constituting the surrender of tax losses by a Group Company (i) to another Group Company; (ii) in order to eliminate, satisfy or discharge any tax liability of any person that was formerly a Subsidiary of the Issuer which has been disposed of pursuant to a disposal permitted by the terms of these Terms and Conditions, to the extent that a Group Company would have a liability (in the form of an indemnification obligation or otherwise) to one or more persons in relation to such tax liability if not so eliminated, satisfied or discharged; and
(y)any other disposal of assets not described in clauses (a) to (x) above comprising in aggregate percentage value 10 per cent. or less of Total Assets.
"Base Rate" means STIBOR or any reference rate replacing STIBOR in accordance with Condition 18 (Replacement of Base Rate).
"Base Rate Administrator" means Swedish Financial Benchmark Facility AB (SFBF) or any person replacing it as administrator of the Base Rate.
"Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the U.S. Securities Exchange Act of 1934, as amended and the rules and regulations
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promulgated pursuant thereto (the "Exchange Act"), except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only after the passage of time. The terms "Beneficially Owns" and "Beneficially Owned" have a corresponding meaning.
"Business Day" means a day other than a Sunday or other public holiday in Sweden. Saturdays, Midsummer Eve (midsommarafton), Christmas Eve (julafton) and New Year's Eve (nyårsafton) and any other day on which banking institutions are closed in Sweden shall for the purpose of this definition be deemed to be public holidays.
"Business Day Convention" means the first following day that is a Business Day unless that day falls in the next calendar month, in which case that date will be the first preceding day that is a Business Day.
"Capital Lease Obligation" means the obligation to pay rent or other payment amounts under a lease of real or personal property of a person which is required to be classified and accounted for as a capital lease on the face of a statement of financial position of such person in accordance with IFRS. The stated maturity of such obligation shall be the date of the last payment of rent or any other amount due under such lease prior to the first date upon which such lease may be terminated by the lessee without payment of a penalty. The principal amount of Financial Indebtedness represented by such obligation shall be the capitalised amount thereof that would appear on the face of a statement of financial position of such person in accordance with IFRS.
"Capital Stock" of any person means any and all shares, interests, participation or other equivalents (however designated) of corporate stock or other equity participation, including partnership interests, whether general or limited, of such person.
"Cash Equivalents" means, with respect to any person:
(a)(i) direct obligations of, or obligations guaranteed by, the United States of America for the payment of which obligations or guarantee the full faith and credit of the United States of America is pledged and which have a remaining Weighted-Average Life to Maturity of not more than one year from the date of Investment therein and (ii) any direct obligations of, or obligations guaranteed by, a member of the European Union or the United Kingdom for the payment of which the full faith and credit of such member of the European Union or the United Kingdom is pledged and which have a remaining Weighted-Average Life to Maturity of not more than one year from the date of Investment therein;
(b)term deposit accounts (excluding current and demand deposit accounts), certificates of deposit and Eurodollar time deposits and money market deposits and bankers' acceptances, in each case, issued by or with (i) any lender under the Revolving Credit Facility , and their respective Affiliates (ii) a bank or trust company which is organised under the laws of the United States of America, any state thereof, the United Kingdom, Switzerland, Canada, Australia or any member state of the European Union, and which bank or trust company has capital, surplus and undivided profits aggregating in excess of $100,000,000 and has outstanding debt which is rated Investment Grade by at least one Rating Agency, or (iii) money market funds rated at least AAA by at least one Rating Agency or managed by any lender to the Revolving Credit Facility;
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(c)repurchase obligations with a term of not more than seven days for underlying securities of the types described in clause (a) above entered into with any financial institution meeting the qualifications specified in paragraph (b)(ii) above;
(d)commercial paper having one of the two highest ratings obtainable from Fitch Ratings Ltd or Moody's Investor Services Limited and in each case maturing within 365 days after the date of acquisition;
(e)money market funds or mutual funds at least 95 per cent. of the assets of which constitute Cash Equivalents of the types described in paragraphs (a) through (d) of this definition;
(f)with respect to any person organised under the laws of, or having its principal business operations in, a jurisdiction outside the United States, the United Kingdom or the European Union, those investments that are of the same type as investments in paragraphs (a), (c) and (d) of this definition except that the obligor thereon is organised under the laws of the country (or any political subdivision thereof) in which such person is organised or conducting business; and
(g)up to $100,000,000 in the aggregate of term deposit accounts and overnight deposits or legal tender held by such person in countries where any Restricted Subsidiary operates its business.
"Change of Control" means:
(a)any person becomes the Beneficial Owner, directly or indirectly, of more than 50 per cent. of the Voting Stock of the Issuer, measured by voting power rather than number of shares;
(b)the direct or indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of the Issuer and its subsidiaries, taken as a whole, to any person occurs; or
(c)a plan relating to the liquidation or dissolution of the Issuer is adopted.
"Change of Control Triggering Event" means the occurrence of a Change of Control and a Rating Decline, provided that if at the time a Change of Control occurs the Issuer is not rated by any Rating Agency, then a Change of Control Triggering Event shall be deemed to occur upon the occurrence of a Change of Control.
"Consolidated EBITDA" means, for any period, operating profit of the Issuer and its Restricted Subsidiaries, as such amount is determined on a consolidated basis in accordance with IFRS, plus the sum of the following amounts, in each case, without duplication. Losses shall be added (as a positive number) and gains shall be deducted, in each case, to the extent such amounts were included in calculating operating profit:
(a)depreciation and amortisation expenses;
(b)the net loss or gain on the disposal and impairment of assets;
(c)share-based compensation expenses;
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(d)at the Issuer's option, other non-cash charges reducing operating profit (provided that, if any such non-cash charge represents an accrual of or reserve for potential cash charges in any future period, the cash payment in respect thereof in such future period shall reduce operating profit to such extent, and excluding amortisation of a prepaid cash item that was paid in a prior period) less other non-cash items of income increasing operating income (excluding any such non-cash item of income to the extent it represents (x) a receipt of cash payments in any future period, (y) the reversal of an accrual or reserve for a potential cash item that reduced operating income in any prior period and (z) any non-cash gains with respect to cash actually received in a prior period so long as such cash did not increase operating income in such prior period);
(e)any material extraordinary, one-off, non-recurring, exceptional or unusual gain, loss, expense or charge, including any charges or reserves in respect of any restructuring, redundancy, relocation, refinancing, integration or severance or other post-employment arrangements, signing, retention or completion bonuses, transaction costs, acquisition costs, disposition costs, business optimisation, information technology implementation or development costs, costs related to governmental investigations and curtailments or modifications to pension or post-retirement benefits schemes, litigation or any asset impairment charges or the financial impacts of natural disasters (including fire, flood and storm and related events);
(f)at the Issuer's option, the effects of adjustments in its consolidated financial statements pursuant to IFRS (including inventory, property, equipment, software, goodwill, intangible assets, in process research and development, deferred revenue and debt line items) attributable to the application of recapitalisation accounting or acquisition accounting, as the case may be, in relation to any consummated acquisition or joint venture investment or the amortisation or write-off or write-down of amounts thereof, net of taxes;
(g)any reasonable expenses, charges or other costs related to any sale of Capital Stock (other than Redeemable Stock) of the Issuer or a Holding Company of the Issuer, Investment, acquisition, disposition, recapitalisation or the incurrence, waiver or amendment of any Financial Indebtedness (or the refinancing thereof) (whether or not successful or consummated), in each case, as determined in good faith by a responsible financial or accounting officer of the Issuer;
(h)any gains or losses on associates;
(i)any unrealised gains or losses due to changes in the fair value of equity Investments;
(j)any unrealised gains or losses due to changes in the fair value of Permitted Interest Rate, Currency or Commodity Price Agreements;
(k)any unrealised gains or losses due to changes in the carrying value of put options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate;
(l)any unrealised gains or losses due to changes in the carrying value of call options in respect of Capital Stock of, or voting rights with respect to, any Subsidiary, joint venture or associate;
(m)any net foreign exchange gains or losses;
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(n)at the Issuer's option, any adjustments to reduce the impact of the cumulative effect of a change in accounting principles and changes as a result of the adoption or modification of accounting policies;
(o)accruals and reserves that are established or adjusted within twelve months after the closing date of any acquisition that are so required to be established as a result of such acquisition in accordance with IFRS;
(p)any expenses, charges or losses to the extent covered by insurance or indemnity and actually reimbursed, or, so long as the Issuer or a Restricted Subsidiary has made a determination that there exists reasonable evidence that such amount will in fact be reimbursed by the insurer or indemnifying party and only to the extent that such amount is in fact reimbursed within 365 days of the date of the insurable or indemnifiable event (net of any amount so added back in any prior period to the extent not so reimbursed within the applicable 365-day period);
(q)the amount of proceeds received from business interruption insurance and reimbursements of any expenses and charges that are covered by indemnification or other reimbursement provisions in connection with any acquisition, Investment or any sale, conveyance, transfer or other disposition of assets;
(r)any net gain (or loss) realised upon any sale/leaseback transaction that is not sold or otherwise disposed of in the ordinary course of business, determined in good faith by a responsible financial or accounting officer of the Issuer;
(s)the amount of loss on the sale or transfer of any assets in connection with an asset securitisation program, receivables factoring transaction or other receivables transaction (including, without limitation, a Qualified Receivables Transaction); and
(t)Specified Legal Expenses.
For the purposes of calculating Consolidated EBITDA for any period, as of such date of determination:
(i)if, since the beginning of such period the Issuer or any Restricted Subsidiary has made any Asset Disposition or disposed of any company, any business, or any group of assets constituting an operating unit of a business (any such disposition, a "Sale"), including any Sale occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be reduced by an amount equal to the Consolidated EBITDA (if positive) attributable to the assets which are the subject of such Sale for such period or increased by an amount equal to the Consolidated EBITDA (if negative) attributable thereto for such period;
(ii)if, since the beginning of such period, the Issuer or any Restricted Subsidiary (by merger or otherwise) has made an Investment in any person that thereby becomes a Restricted Subsidiary, or otherwise acquires any company, any business, or any group of assets constituting an operating unit of a business (any such Investment or acquisition, a "Purchase"), including any such Purchase occurring in connection with a transaction causing a calculation to be made hereunder, then Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Purchase occurred on the first day of such period;
(iii)if, since the beginning of such period any person (that became a Restricted Subsidiary or was merged with or into the Issuer or any Restricted Subsidiary since
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the beginning of such period) has made any Sale or any Purchase that would have required an adjustment pursuant to paragraphs (i) or (ii) above if made by the Issuer or a Restricted Subsidiary since the beginning of such period, Consolidated EBITDA for such period will be calculated after giving pro forma effect thereto as if such Sale or Purchase occurred on the first day of such period, including anticipated synergies and cost savings as if such Sale or Purchase occurred on the first day of such period;
(iv)whenever pro forma effect is applied, the pro forma calculations will be as determined in good faith by a responsible financial or accounting officer of the Issuer (including in respect of anticipated synergies and cost savings) as though the full effect of synergies and cost savings were realised on the first day of the relevant period and shall also include the reasonably anticipated full run rate cost savings effect (as calculated in good faith by a responsible financial or chief accounting officer of the Issuer) of cost savings programs that have been initiated by the Issuer or its Restricted Subsidiaries as though such cost savings programs had been fully implemented on the first day of the relevant period; and
(v)for the purposes of determining the amount of Consolidated EBITDA under this definition denominated in a foreign currency, the Issuer may, at its option, calculate the U.S. Dollar Equivalent amount of such Consolidated EBITDA based on either (i) the weighted average exchange rates for the relevant period used in the consolidated financial statements of the Issuer for such relevant period or (ii) the relevant currency exchange rate in effect on the First Issue Date.
For the purpose of calculating the Consolidated EBITDA of the Issuer, any Joint Venture Consolidated EBITDA shall be added to the amount determined in accordance with the foregoing.
"Consolidated Net Debt" means, as of any date of determination, the sum without duplication of:
(a)the total amount of Financial Indebtedness of the Issuer and its Restricted Subsidiaries on a consolidated basis in accordance with IFRS, minus
(b)the sum without duplication of (i) all Financial Indebtedness outstanding under Minority Shareholder Loans, (ii) any Financial Indebtedness which is a contingent obligation of the Issuer or its Restricted Subsidiaries on such date, (iii) all Financial Indebtedness permitted by paragraph (c) of the definition of Permitted Financial Indebtedness and (iv) all Financial Indebtedness permitted by paragraph (q) of the definition of Permitted Financial Indebtedness, minus
(c)the amount of cash and Cash Equivalents (other than cash or Cash Equivalents received from the incurrence of Financial Indebtedness by a Group Company to the extent such cash or Cash Equivalents have not been subsequently applied or used for any purpose not prohibited by these Terms and Conditions) of the Issuer and its Restricted Subsidiaries on a consolidated basis that would be stated on the statement of financial position of the Issuer as of such date in accordance with IFRS, excluding, for the avoidance of doubt, Restricted Cash.
"Credit Facility" means, a debt facility, arrangement, instrument, trust deed, note purchase agreement, indenture, purchase money financing, commercial paper facility or overdraft facility with banks or other institutions or investors providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to such
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institutions or to special purpose entities formed to borrow from such institutions against such receivables), letters of credit or other Financial Indebtedness, in each case, as amended, restated, modified, renewed, refunded, replaced, restructured, refinanced, repaid, increased or extended, in whole or in part from time to time, and in each case, including all agreements, instruments and documents executed and delivered pursuant to or in connection with the foregoing (including, but not limited to, any notes and letters of credit issued pursuant thereto and any guarantee and collateral agreement, patent and trademark security agreement, mortgages or letter of credit applications and other guarantees, pledges, agreements, security agreements and collateral documents). Without limiting the generality of the foregoing, the term "Credit Facility" shall include any agreement or instrument (i) changing the maturity of any Financial Indebtedness incurred thereunder or contemplated thereby, (ii) adding Subsidiaries of the Issuer as additional borrowers or guarantors thereunder, (iii) increasing the amount of Financial Indebtedness incurred thereunder or available to be borrowed thereunder or (iv) otherwise altering the terms and conditions thereof.
"Cross Acceleration" means any Financial Indebtedness of a Group Company is cancelled, or declared to be or otherwise becomes due and payable prior to its specified maturity as a result of an event of default (however described).
"Cross Payment Default" means any event of default (howsoever described) arising from a failure by the Issuer or any of its Restricted Subsidiaries to pay any Financial Indebtedness when due or within any originally applicable grace period.
"CSD" means the Issuer's central securities depository and registrar in respect of the Notes, Euroclear Sweden AB, Swedish Reg. No. 556112-8074, P.O. Box 191, 101 23 Stockholm, Sweden, or another party replacing it, as CSD, in accordance with these Terms and Conditions.
"CSD Regulations" means the CSD's rules and regulations applicable to the Issuer, the Trustee and the Notes from time to time.
"Default" means an Event of Default or any event or circumstance specified in Condition 12.1 which would (with the expiry of a grace period, the giving of notice, the making of any determination under the Finance Documents or any combination of any of the foregoing) be an Event of Default.
"Eligible Assets and Projects" means one or more of the "Eligible Assets and Projects with Environmental Benefits" or "Eligible Assets and Projects with Social Benefits" as outlined in the Sustainability Bond Framework.
"Event of Default" means an event or circumstance specified in Condition 12.1.
"Excess Proceeds" has the meaning set forth in Condition 11.5.3.
"Excess Proceeds Offer" has the meaning set forth in Condition 9.5.1.
"Fair Market Value" means, with respect to any asset or property, the sale value that would be obtained in an arm's length free market transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy, as determined in good faith by the Issuer's Chief Executive Officer, Chief Financial Officer or responsible accounting or financial officer.
"Final Maturity Date" means 20 January 2027.
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"Finance Documents" means the Trust Deed (including these Terms and Conditions) and any other document designated by the Issuer and the Trustee (on behalf of the Noteholders) as a Finance Document.
"Financial Indebtedness" means (without duplication), with respect to any person, whether recourse is to all or a portion of the assets of such person and whether or not contingent:
(a)the principal of and premium, if any, in respect of every obligation of such person for money borrowed;
(b)the principal of and premium, if any, in respect of every obligation of such person evidenced by bonds, debentures, notes or other similar instruments;
(c)every reimbursement obligation of such person with respect to letters of credit, bankers' acceptances or similar facilities issued for the account of such person (but only to the extent such obligations are not reimbursed within 30 days following receipt by such person of a demand for reimbursement); and
(d) the principal component of every obligation of the type referred to in paragraphs (a) through (c) of another person and all dividends of another person the payment of which, in either case, such person has guaranteed or is responsible or liable for, directly or indirectly, as obligor, guarantor or otherwise to the extent not otherwise included in the Financial Indebtedness of such person.
The "amount" or "principal amount" of Financial Indebtedness at any time of determination as used herein represented by (x) any Financial Indebtedness issued at a price that is less than the principal amount at maturity thereof, shall be the amount of the liability in respect thereof determined in accordance with IFRS, (y) any Redeemable Stock, shall be the maximum fixed redemption or repurchase price in respect thereof; and (z) any amount of Financial Indebtedness that has been cash-collateralised, to the extent so cash-collateralised, shall be excluded from any calculation of Financial Indebtedness. Notwithstanding anything else to the contrary, for all purposes under these Terms and Conditions, the amount of Financial Indebtedness incurred, repaid, redeemed, repurchased or otherwise acquired by a Restricted Subsidiary of the Issuer shall equal the liability in respect thereof determined in accordance with IFRS and reflected on the Issuer's consolidated statement of financial position.
The term "Financial Indebtedness" shall not include:
(i)obligations described in paragraphs (a) or (b) of the first paragraph of this definition of Financial Indebtedness that are incurred by a Restricted Subsidiary of the Issuer (the "Proceeds Recipient") and owed to a bank or other lending institution (the "On-Lend Bank") to facilitate the substantially concurrent on-lending of proceeds (the "Proceeds On-Loan") from Financial Indebtedness incurred by any Group Company (other than the Proceeds Recipient) as permitted by Condition 11.3 to the extent (A) the principal obligations in respect of the Proceeds On-Loan are secured by security over cash granted in favour of the On-Lend Bank or any of its Affiliates in an amount not less than the principal amount of the Proceeds On-Loan, (B) the Proceeds On-Loan is put in place substantially concurrently with a loan by any Group Company (other than the Proceeds Recipient) to the On-Lend Bank (the "On-Lend Bank Borrowing") pursuant to which the Proceeds Recipient is entitled to reduce the principal amount of the Proceeds On-Loan by an amount equal to the principal amount of the On-Lend Bank Borrowing if a default or acceleration occurs with respect to such On-Lend Bank Borrowing, or (C) the substantial risks and
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rewards of the Proceeds On-Loan are transferred, using a synthetic instrument or any other arrangement or agreement, from the On-Lend Bank to any Group Company (other than the Proceeds Recipient) in exchange for an amount not less than (x) the amount of cash granted in favour of the On-Lend Bank or any of its Affiliates, or (y) the outstanding amount of the On-Lend Bank Borrowing, as applicable, in each case as at the effective date of such transfer;
(ii)any liability of the Issuer or any other Group Company (other than the Proceeds Recipient) attributable to a synthetic instrument or any other arrangement or agreement described in paragraph (i)(C) above to the extent such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS and recorded as a current liability on the Issuer's consolidated statement of financial position;
(iii)any Restricted MFS Cash;
(iv)any liability of the Issuer attributable to a put option or similar instrument, arrangement or agreement entered into after the First Issue Date granted by the Issuer relating to an interest in any other entity, in each case to the extent such option has not been exercised or such obligation under the relevant instrument, arrangement or agreement has not come due but is classified as a financial liability in accordance with IFRS, and recorded as a current liability on the Issuer's consolidated statement of financial position;
(v)any standby letter of credit, performance bond or surety bond provided by a Group Company that is customary in the Permitted Business to the extent such letters of credit or bonds are not drawn upon or, if and to the extent drawn upon, are honoured in accordance with their terms;
(vi)any deposits or prepayments received by a Group Company from a customer or subscriber for its service and any other deferred or prepaid revenue;
(vii)any obligations to make payments in relation to earn outs;
(viii)Financial Indebtedness which is in the nature of equity (other than redeemable shares) or equity derivatives;
(ix)Capital Lease Obligations or operating leases;
(x)receivables sold or discounted, whether recourse or non-recourse, including for the avoidance of doubt any debt in respect of Qualified Receivables Transactions, including without limitation guarantees by a Receivables Entity of the obligations of another Receivables Entity;
(xi)pension obligations or any obligation under employee plans or employment agreements;
(xii)any "parallel debt" obligations to the extent that such obligations mirror other Financial Indebtedness;
(xiii)any payments or liability for assets acquired or services supplied deferred (including trade payables) in accordance with the terms pursuant to which the relevant assets were or are to be acquired or services were or are to be supplied;
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(xiv)the principal component or liquidation preference of all obligations of such person with respect to the redemption, repayment or other repurchase of any Disqualified Stock or, with respect to any Restricted Subsidiary, any Preferred Stock (including, in each case, any accrued dividends); and
(xv)the net obligations of such person under any Permitted Interest Rate, Currency or Commodity Price Agreement.
For the purposes of determining compliance with any covenant in these Terms and Conditions or whether an Event of Default has occurred, in each case, where Financial Indebtedness is denominated in a currency other than U.S. Dollars, the amount of such Financial Indebtedness will be the U.S. Dollar Equivalent determined on the date of such incurrence and any covenant in these Terms and Conditions shall not be deemed to be exceeded solely as a result of fluctuations in exchange rates or currency values; provided, however, that if any such Financial Indebtedness that is denominated in a different currency is subject to an Interest Rate, Currency or Commodity Price Agreement with respect to U.S. Dollars covering principal and premium, if any, payable on such Financial Indebtedness, the amount of such Financial Indebtedness expressed in U.S. Dollars will be adjusted to take into account the effect of such an agreement.
"Disqualified Stock" means, with respect to any person, any Capital Stock of such person which by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or upon the happening of any event:
(a)matures or is mandatorily redeemable pursuant to a sinking fund obligation or otherwise;
(b)is convertible or exchangeable for Financial Indebtedness or Disqualified Stock (excluding Capital Stock which is convertible or exchangeable solely at the option of the Issuer or a Restricted Subsidiary); or
(c)is redeemable at the option of the holder of the Capital Stock in whole or in part,
in each case on or prior to the earlier of (a) the Final Maturity Date or (b) the date on which there are no Notes outstanding, provided that only the portion of Capital Stock which so matures or is mandatorily redeemable, is so convertible or exchangeable or is so redeemable at the option of the holder thereof prior to such date will be deemed to be Disqualified Stock; provided, further that any Capital Stock that would constitute Disqualified Stock solely because the holders thereof have the right to require the Issuer to repurchase such Capital Stock upon the occurrence of a change of control or asset sale (each defined in a substantially identical manner to the corresponding definitions in these Terms and Conditions) shall not constitute Disqualified Stock if the terms of such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) provide that the Issuer may not repurchase or redeem any such Capital Stock (and all such securities into which it is convertible or for which it is ratable or exchangeable) pursuant to such provision prior to compliance by the Issuer with the Condition 9.6 and Condition 11.5 hereof.
"Financial Instruments Accounts Act" means the Swedish Financial Instruments Accounts Act (lag (1998:1479) om kontoföring av finansiella instrument).
"Financial Quarter" means the period commencing on the day after one Quarter Date and ending on the next Quarter Date.
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"Financial Year" means the annual accounting period of the Issuer ending on or about 31 December in each year.
"First Call Date" means 20 January 2024.
"First Issue Date" means 20 January 2022.
"Fitch" has the meaning set forth in the definition "Rating Agency".
"Force Majeure Event" has the meaning set forth in Condition 25.1.
"GAAP" means generally accepted accounting principles in the United States.
"Gradation" means a gradation within a Rating Category or a change to another Rating Category, which shall include: (i) "+" and "-" in the case of Fitch's current Rating Categories (e.g., a decline from BB+ to BB would constitute a decrease of one gradation), (ii) 1, 2 and 3 in the case of Moody's current Rating Categories (e.g., a decline from Ba1 to Ba2 would constitute a decrease of one gradation), or (iii) the equivalent in respect of successor Rating Categories of Fitch or Moody's or Rating Categories used by Rating Agencies other than Fitch and Moody's.
"Group" means the Issuer and its Restricted Subsidiaries from time to time (each a "Group Company").
"Holding Company" means any person (other than a natural person) which legally and Beneficially Owns more than 50% of the Voting Stock and/or Capital Stock of another person, either directly or through one or more Subsidiaries.
"IFRS" means the International Financial Reporting Standards promulgated by the International Accounting Standards Board or any successor board or agency (and, at the irrevocable option of the Issuer, as adopted by the European Union), as in effect on the First Issue Date; provided that the Issuer may, at any time, irrevocably elect by written notice to the Trustee to use IFRS as in effect from time to time, and, upon such notice, references herein to IFRS shall thereafter be construed to mean IFRS as in effect from time to time. The Issuer also may, at any time, irrevocably elect by written notice to the Trustee to use GAAP as in effect from time to time in lieu of IFRS and, upon such notice, references herein to IFRS shall thereafter be construed to mean GAAP as in effect from time to time; provided that upon first reporting its fiscal year results under GAAP, the Issuer shall restate the financial statements required to be delivered under Condition 10.1.1, on the basis of GAAP for the fiscal year ending immediately prior to the first fiscal year for which financial statements have been prepared on the basis of GAAP.
"Initial Notes" means the Notes issued on the First Issue Date.
"Insolvent" means, in respect of a relevant person, that it is deemed to be insolvent, or admits inability to pay its debts as they fall due, in each case within the meaning of Chapter 2, Sections 7-9 of the Swedish Bankruptcy Act (konkurslagen (1987:672)) (or its equivalent in any other jurisdiction), suspends making payments on any of its debts or by reason of actual financial difficulties commences negotiations with all or substantially all of its creditors (other than the Noteholders and creditors of secured debt) with a view to rescheduling any of its indebtedness (including company reorganisation under the Swedish Company Reorganisation Act (lag (1996:764) om företagsrekonstruktion) (or its equivalent in any other jurisdiction)) or is subject to involuntary winding-up, dissolution or liquidation.
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"Interest" means the interest on the Notes calculated in accordance with Conditions 8.1 to 8.3.
"Interest Payment Date" means 20 January, 20 April, 20 July and 20 October of each year or, to the extent any such day is not a Business Day, the Business Day following from an application of the Business Day Convention. The first Interest Payment Date for the Initial Notes shall be 20 April 2022 and the last Interest Payment Date shall be the Final Maturity Date or any relevant Redemption Date prior thereto.
"Interest Period" means (i) in respect of the first Interest Period, the period from (but excluding) the First Issue Date to (and including) the first Interest Payment Date, and (ii) in respect of subsequent Interest Periods, the period from (but excluding) an Interest Payment Date to (and including) the next succeeding Interest Payment Date (or a shorter period if relevant).
"Interest Rate" means a per annum rate equal to STIBOR plus 3.00 per cent., as adjusted by any application of Condition 18 (Replacement of Base Rate).
"Interest Rate, Currency or Commodity Price Agreement" of any person means any forward contract, futures contract, swap, option or other financial agreement or arrangement (including, without limitation, caps, floors, collars and similar agreements) relating to, or the value of which is dependent upon, interest rates, currency exchange rates or commodity prices or indices (excluding contracts for the purchase or sale of goods in the ordinary course of business).
"Investment" by any person means any direct or indirect loan, advance or other extension of credit or capital contribution (by means of transfers of cash or other property to others or payments for property or services for the account or use of others, or otherwise) to, or purchase or acquisition of Capital Stock, bonds, notes, debentures or other securities or evidence of Financial Indebtedness issued by, any other person, including any payment on a guarantee of any obligation of such other person, together with all items that are or would be classified as Investments on a statement of financial position (excluding the footnotes thereto) prepared in accordance with IFRS, but shall not include:
(a)trade accounts receivable in the ordinary course of business on credit terms made generally available to the customers of such person; or
(b)commission, travel, payroll, entertainment, relocation and similar advances to officers and employees and profit sharing and other employee benefit plan contributions made in the ordinary course of business.
Except as otherwise provided in these Terms and Conditions, the amount of an Investment will be determined at the time the Investment is made and without giving effect to a subsequent change in value and, to the extent applicable, shall be determined based on the equity value of such Investment.
"Investment Grade" means (i) BBB- or above in the case of Fitch (or its equivalent under any successor Rating Categories of Fitch), (ii) Baa3 or above, in the case of Moody's (or its equivalent under any successor Rating Categories of Moody's), and (iii) the equivalent in respect of the Rating Categories of any Rating Agencies.
"Issuer" means Millicom International Cellular, S.A., a public limited liability company (société anonyme) incorporated under the laws of Luxembourg, having its registered office
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at 2, rue du Fort Bourbon, L-1249 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 40630.
"Issuing Agent" means DNB Bank ASA, Sweden Branch, or another party replacing it, as Issuing Agent, in accordance with these Terms and Conditions and the CSD Regulations.
"Joint Venture Consolidated EBITDA" means an amount equal to the product of (i) the Consolidated EBITDA of any joint venture (determined in good faith by a responsible financial or accounting officer of the Issuer on the same basis as provided for in the definition of "Consolidated EBITDA" (with the exception of clause (i) and the last sentence thereof) as if each reference to the " Issuer and its Restricted Subsidiaries" in such definition was to such joint venture) whose financial results are not consolidated with those of the Issuer in accordance with IFRS and (ii) a percentage equal to the direct or indirect equity ownership percentage of the Issuer and/or its Restricted Subsidiaries in the Capital Stock of such joint venture and its Subsidiaries.
"Lien" means, with respect to any property or assets, any mortgage, pledge, security interest, lien, charge, encumbrance, priority or other security agreement or preferential arrangement of any kind or nature whatsoever on or with respect to such property or assets (including, without limitation, any conditional sale or other title retention agreement having substantially the same economic effect as any of the foregoing).
"Limited Condition Transaction" means (i) any Investment or acquisition, including by way of merger, amalgamation or consolidation, in each case, by one or more of the Issuer and its Restricted Subsidiaries of any assets, business or person whose consummation is not conditioned on the availability of, or on obtaining, third party financing and (ii) any redemption, repurchase, defeasance, satisfaction and discharge or repayment of Financial Indebtedness requiring irrevocable notice in advance of such redemption, repurchase, defeasance, satisfaction and discharge or repayment.
"Listing Failure Event" means (i) that the Initial Notes or any Additional Notes are not admitted to trading on a Regulated Market within 60 days following the First Issue Date or the date of issuance of any Additional Notes, or (ii) in the case of a successful admission, that a period of 60 days has elapsed since the Initial Notes and/or any Additional Notes ceased to be listed on a Regulated Market.
"Market Loan" means any loan or other indebtedness in the form of certificates, convertibles, subordinated debentures, notes or any other debt securities (including, for the avoidance of doubt, medium term note programmes and other market funding programmes), provided in each case that such instruments and securities are or can be subject to trading on any Regulated Market or a multilateral trading facility (as defined in Directive 2014/65/EU on markets in financial instruments).
"Material Company" means:
(a)the Issuer;
(b)a Significant Subsidiary; or
(c)any other Restricted Subsidiaries which are not Significant Subsidiaries but which taken together, account for more than 10 per cent. of the Consolidated EBITDA of the Group or consolidated revenues of the Group, or whose assets, taken together, represent more than 10 per cent. of the assets of the Group.
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"Minority Shareholder Loan" means Financial Indebtedness of a Restricted Subsidiary that is issued to and held by an equity owner of such Restricted Subsidiary, other than a Group Company.
"Moody's" has the meaning set forth in the definition "Rating Agency".
"Net Available Proceeds" from any Asset Disposition means cash or readily marketable Cash Equivalents received (including by way of sale or discounting of a note, instalment receivable or other receivable, but excluding any assets described in clauses (iv) and (v) of Condition 11.5.1(c) and other consideration received in the form of assumption by the acquiror of Financial Indebtedness or other obligations relating to such properties or assets) therefrom by the Issuer or any of its Restricted Subsidiaries, net of:
(a)all legal, title and recording tax expenses, commissions and other fees and expenses incurred, including, without limitation, legal, consultant, accounting and investment banking fees, sales commissions, discounts and brokerage costs, and all federal, state, provincial, foreign and local taxes required to be accrued as a liability as a consequence of such Asset Disposition;
(b)all payments made by the Issuer or any of its Restricted Subsidiaries, on any Financial Indebtedness which is secured by such assets in accordance with the terms of any Lien upon or with respect to such assets or which must by the terms of such Financial Indebtedness or Lien, or in order to obtain a necessary consent to such Asset Disposition or by applicable law, be repaid out of the proceeds from such Asset Disposition;
(c)all distributions and other payments made to other equity holders in the Issuer's Subsidiaries or joint ventures as a result of such Asset Disposition; and
(d)appropriate amounts to be provided by the Issuer or any of its Restricted Subsidiaries, as the case may be, as a reserve in accordance with IFRS, against any liabilities associated with such assets and retained by the Issuer or any of its Restricted Subsidiaries, as the case may be, after such Asset Disposition, including, without limitation, liabilities under any indemnification obligations, relocation costs and severance and other employee termination costs associated with such Asset Disposition, in each case as determined by the Issuer's senior management or board of directors, in its reasonable good faith judgment.
"Net Leverage Ratio" means, as of any date of determination, the ratio of (a) the Consolidated Net Debt outstanding on such date to (b) the Consolidated EBITDA for the four most recent Financial Quarters ending immediately prior to such date for which consolidated financial statements are available, determined, in each case, on a pro forma basis as if any such Financial Indebtedness had been incurred, or such other Financial Indebtedness had been repaid, redeemed or repurchased, as applicable, at the beginning of such four Financial Quarter period; provided, however, that the pro forma calculation shall not give effect to (i) any Financial Indebtedness incurred on such determination date pursuant to Condition 11.3(b) (other than Financial Indebtedness incurred pursuant to paragraph (f) of the definition of "Permitted Financial Indebtedness"), or (ii) the discharge on such determination date of any Financial Indebtedness to the extent that such discharge results from the proceeds incurred pursuant to Condition 11.3(b) (other than the discharge of Financial Indebtedness using proceeds of Financial Indebtedness incurred pursuant to paragraph (f) of the definition of "Permitted Financial Indebtedness"). For the avoidance of doubt, in determining the Net Leverage Ratio, no cash or Cash Equivalents shall be included that are the proceeds of Financial Indebtedness in respect of which the pro forma calculation
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is to be made, unless such proceeds are committed to be used for the repayment or refinancing of any Financial Indebtedness.
"Net Proceeds" means the gross proceeds from the offering of the relevant Notes, minus (i) in respect of the Initial Notes, the costs incurred by the Issuer in conjunction with the issuance and listing on Nasdaq Stockholm (or any other Regulated Market, as applicable) thereof, and (ii) in respect of any Additional Notes, the costs incurred by the Issuer in conjunction with the issuance and listing on Nasdaq Stockholm (or any other Regulated Market, as applicable) thereof.
"Nominal Amount" has the meaning set forth in Condition 2.3.
"Noteholder" means a person who is registered on a Securities Account as direct registered owner (ägare) or nominee (förvaltare) with respect to a Note.
"Noteholders' Meeting" means a meeting among the Noteholders held in accordance with Condition 15 (Noteholders' Meeting).
"Notes" means the SEK Senior Unsecured Floating Rate Sustainability Notes due 20 January 2027, ISIN: SE0017133754 (including the Initial Notes and any Additional Notes), being debt instruments (skuldförbindelser) for the Nominal Amount and of the type set forth in Chapter 1 Section 3 of the Financial Instruments Accounts Act and which are issued on the terms set out in these Terms and Conditions and constituted by, are subject to and have the benefit of, the Trust Deed.
"Offer Amount" has the meaning set forth in Condition 9.5.3.
"Offer Period" has the meaning set forth in Condition 9.5.3.
"Pari Passu Financial Indebtedness" means any Financial Indebtedness of the Issuer that ranks pari passu in right of payment with the Notes.
"Permitted Asset Swap" means the concurrent purchase and sale or exchange of related business assets or a combination of related business assets, cash and Cash Equivalents between the Issuer or any of its Restricted Subsidiaries and another person.
"Permitted Business" means:
(a)any business, services or activities engaged in by the Issuer or any of its Subsidiaries on the First Issue Date; and
(b)any business, services and activities that are related, complementary, incidental, ancillary or similar to any of the foregoing, or are extensions or developments thereof, including, without limitation, broadband internet, network-related services, cable television, broadcast content, network neutral services, electronic transactional, financial and commercial services related to provision of telephony or internet services.
"Permitted Discontinuance of Property Maintenance" means the discontinuance of the operation or maintenance of the properties of any Group Company which is, in the Issuer's judgment, desirable in the conduct of its business or the business of such other Group Company (as applicable), and which will not materially adversely affect the Noteholders.
"Permitted Financial Indebtedness" means:
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(a)the incurrence by the Issuer of Financial Indebtedness pursuant to the Notes (other than Additional Notes);
(b)any Financial Indebtedness of a Group Company outstanding on the First Issue Date after giving effect to the use of proceeds of the Notes;
(c)Pari Passu Financial Indebtedness of the Issuer and Financial Indebtedness of any Group Company under Credit Facilities in an aggregate principal amount at any one time outstanding that does not exceed an amount equal to the greater of (x) $900 million and (y) 8 per cent. of Total Assets; and any Permitted Refinancing Debt in respect thereof, plus, (A) any accrual or accretion of interest that increases the principal amount of Financial Indebtedness under Credit Facilities and (B) in the case of any refinancing of Financial Indebtedness permitted under this paragraph (c) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing;
(d)Financial Indebtedness owed by the Issuer to any Restricted Subsidiary or Financial Indebtedness owed by any Restricted Subsidiary to the Issuer or any other Restricted Subsidiary; provided, however, that (A) if the Issuer is the obligor on such Financial Indebtedness and the payee is not the Issuer, such Financial Indebtedness must be unsecured and expressly subordinated (provided, for the avoidance of doubt, that such subordination shall only apply if an Event of Default specified in clauses (a), (b), (h) or (i) of Condition 12.1 occurs)1 to the prior payment in full in cash of all obligations then due with respect to the Issuer's obligations under the Notes, and (B) either (x) the transfer or other disposition by the Issuer or such Restricted Subsidiary of any Financial Indebtedness so permitted to a person (other than to the Issuer or any of its Restricted Subsidiaries) or (y) such Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Issuer, will at the time of such transfer or other disposition, in each case, be deemed to be an incurrence of such Financial Indebtedness not permitted by this paragraph (d);
(e)the guarantee by a Group Company of Financial Indebtedness of any of the Issuer's Restricted Subsidiaries to the extent that the guaranteed Financial Indebtedness was permitted to be incurred by another provision of this definition;
(f)Acquired Debt;
(g)Minority Shareholder Loans;
(h)the incurrence by a Group Company of Permitted Refinancing Debt in exchange for, or the net proceeds of which are used to refund, replace or refinance, Financial Indebtedness incurred by it pursuant to clause (a) of Condition 11.3 and paragraphs (a), (b), (f) and this paragraph (h) of this definition, as the case may be;
(i)Financial Indebtedness of a Group Company represented by letters of credit in order to provide security for workers' compensation claims, health, disability or other employee benefits, payment obligations in connection with self-insurance or similar requirements of a Group Company in the ordinary course of business;
1 Note to SM: This provision is and must remain consistent with Millicom's USD bonds.
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(j)customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any assets of a Group Company, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than guarantees of Financial Indebtedness incurred by any person acquiring all or any portion of such assets for the purpose of financing such acquisition; provided that the maximum aggregate liability in respect of each such incurrence of such Financial Indebtedness will at no time exceed the gross proceeds actually received by a Group Company in connection with the related disposition;
(k)obligations in respect of (i) customs, VAT or other tax guarantees, (ii) bid, performance, completion, guarantee, surety and similar bonds, including guarantees or obligations of a Group Company with respect to letters of credit supporting such obligations, (iii) customary cash management, cash pooling or netting or setting off arrangements, and (iv) the financing of insurance premiums, in each case in the ordinary course of business and not related to Financial Indebtedness for borrowed money;
(l)Financial Indebtedness of a Group Company arising from the honouring by a bank or other financial institution of a cheque, draft or similar instrument including, but not limited to, electronic transfers, wire transfers, netting services and commercial card payments, drawn against insufficient funds; provided that such Financial Indebtedness is extinguished within 30 days of incurrence;
(m)Financial Indebtedness consisting of (i) mortgage financings, Purchase Money Obligations or other financings, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment acquired or constructed in the ordinary course of business or (ii) Financial Indebtedness otherwise incurred to finance the purchase, lease, rental or cost of design, construction, installation or improvement of property (real or personal) or equipment that is used or useful in the ordinary course of business, whether through the direct purchase of assets or the Capital Stock of any person owning such assets, and any Financial Indebtedness that refinances, replaces or refunds such Financial Indebtedness, in an aggregate outstanding principal amount that, when taken together with the principal amount of all other Financial Indebtedness incurred pursuant to this paragraph (m) and then outstanding, will not exceed at any time the greater of $250,000,000 and 3 per cent. of Total Assets;
(n)guarantees by a Group Company of Financial Indebtedness or any other obligation or liability of a Group Company (other than of any Financial Indebtedness incurred in violation of these Terms and Conditions); provided, however, that if the Financial Indebtedness being guaranteed is subordinated in right of payment to the Notes, then such guarantee shall be subordinated substantially to the same extent as the relevant Financial Indebtedness guaranteed;
(o)Financial Indebtedness of a Group Company in an aggregate outstanding principal amount which, when taken together with any Permitted Refinancing Debt in respect thereof and the principal amount of all other Financial Indebtedness incurred pursuant to this paragraph (o) and then outstanding, will not exceed 100 per cent. of the cash proceeds (net of attorneys' fees, accountants' fees, underwriters' or placement agents' fees, listing fees, discounts or commissions and brokerage, consultant and other fees and charges actually incurred in connection with such issuance or sale and net of taxes paid or payable as a result of such issuance or sale (after taking into account any available tax credit or deductions and any tax sharing
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arrangements)) received by the Issuer from the issuance or sale (other than to the Issuer or a Restricted Subsidiary) of its subordinated shareholder loans or Capital Stock or otherwise contributed to the equity of the Issuer, in each case, subsequent to the First Issue Date (and in each case, other than through the issuance of Disqualified Stock or Preferred Stock);
(p)Financial Indebtedness arising under borrowing facilities provided by a special purpose vehicle to a Group Company in connection with the issuance of notes or other similar debt securities intended to be supported primarily by the payment obligations of a Group Company in connection with any vendor financing platform; and
(q)the incurrence by a Group Company of Financial Indebtedness not otherwise permitted to be incurred pursuant to paragraphs (a) through (p) above, which, together with any other outstanding Financial Indebtedness incurred pursuant to this paragraph (q), has an aggregate principal amount at any time outstanding not in excess of the greater of $300,000,000 and 4 per cent. of Total Assets, and any Permitted Refinancing Debt of any debt which on the date it was incurred was permitted to be incurred pursuant to this paragraph (q), plus, in the case of any refinancing of Financial Indebtedness permitted under this paragraph (q) or any portion thereof, the aggregate amount of fees, underwriting discounts, premiums and other costs and expenses incurred in connection with such refinancing.
In the event that an item of Financial Indebtedness meets the criteria of more than one of the types of Permitted Financial Indebtedness or is entitled to be incurred pursuant to paragraph (a) of Condition 11.3, the Issuer in its sole discretion may classify and from time to time reclassify such item of Financial Indebtedness or any portion thereof and only be required to include the amount of such Financial Indebtedness as one of such types.
"Permitted Interest Rate, Currency or Commodity Price Agreement" means any Interest Rate, Currency or Commodity Price Agreement entered into with one or more financial institutions in the ordinary course of business that is designed to protect against fluctuations in interest rates or currency exchange rates and which shall have a notional amount no greater than the payments due with respect to the Financial Indebtedness being hedged thereby, or in the case of currency or commodity protection agreements against currency exchange or commodity price fluctuations in the ordinary course of business relating to the then existing financial obligations and not for purposes of speculation.
"Permitted Investments" means (i) loans or advances to employees and officers (or loans to any direct or indirect parent, the proceeds of which are used to make loans or advances to employees or officers, or guarantees of third-party loans to employees or officers) in the ordinary course of business; and (ii) customary cash management, cash pooling or netting or setting off arrangements; and (iii) the granting of Liens pursuant to paragraph (ll) of the definition of Permitted Liens.
"Permitted Lien" means:
(a)Liens for taxes, assessments or governmental charges, or levies on the property of a Group Company if the same shall not at the time be delinquent or thereafter can be paid without penalty, or are being contested in good faith and by appropriate proceedings promptly instituted and diligently concluded, provided that any reserve
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or other appropriate provision that shall be required in conformity with IFRS shall have been made therefor;
(b)Liens imposed by law, such as statutory Liens of landlords', carriers', materialmen's, repairmen's, construction, warehousemen's and mechanics' Liens and other similar Liens, on the property of a Group Company arising in the ordinary course of trading or Liens arising solely by virtue of any statutory or common law provisions relating to attorneys' liens or bankers' liens, rights of set-off or similar rights and remedies as to deposit accounts or other funds maintained with a creditor depositary institution;
(c)Liens on the property of a Group Company incurred in the ordinary course of business to secure performance of obligations with respect to statutory or regulatory requirements, performance bids, trade contracts, letters of credit, performance or return-of-money bonds, surety bonds or other obligations of a like nature and incurred in a manner consistent with industry practice, in each case which are not incurred in connection with the borrowing of money, the obtaining of advances or credit or the payment of the deferred purchase price of property and which do not in the aggregate impair in any material respect the use of property in the operation of the business of the Group taken as a whole;
(d)Liens on property at the time a Group Company acquired such property and Liens incurred in anticipation of or in connection with the transaction or series of transactions pursuant to which such property was acquired by a Group Company, provided that any such Lien may not extend to any other property of a Group Company;
(e)Liens on the property of a person at the time such person becomes a Restricted Subsidiary (including Liens created, incurred or assumed in connection with or in contemplation of such acquisition or transaction); provided, however, that any such Lien may not extend to any other property of a Group Company that is not a Restricted Subsidiary of such person (other than pursuant to after-acquired property clauses in effect with respect to such Lien at the time of acquisition on property of the type that would have been subject to such Lien notwithstanding the occurrence of such acquisition);
(f)pledges or deposits by a Group Company under workmen's compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Financial Indebtedness) or leases to which a Group Company is party, or deposits to secure public or statutory obligations of a Group Company or deposits for the payment of rent, in each case incurred in the ordinary course of business;
(g)utility easements, building restrictions and such other encumbrances or charges against real property as are of a nature generally existing with respect to properties of a similar character;
(h)any provision for the retention of title to any property by the vendor or transferor of such property which property is acquired by a Group Company in a transaction entered into in the ordinary course of business of a Group Company and for which kind of transaction it is customary market practice for such retention of title provision to be included;
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(i)Liens arising by means of any judgment, decree or order of any court, to the extent not otherwise resulting in a Default, so long as any appropriate legal proceedings which may have been duly initiated for the review of such judgment, decree or order have not been fully terminated or the period within which such proceedings may be initiated has not expired and any Liens that are required to protect or enforce rights in any administrative, arbitration or other court proceeding in the ordinary course of business;
(j)Liens securing any Credit Facility or any Permitted Interest Rate, Currency or Commodity Price Agreement;
(k)Liens securing customary indemnification, adjustment of purchase price or similar obligations, in each case, incurred in connection with the disposition of any assets by the Issuer or any Restricted Subsidiary, and earn-out provisions or contingent payments in respect of purchase price or adjustment of purchase price or similar obligations in acquisition agreements other than guarantees of Financial Indebtedness incurred by any person acquiring all or any portion of such assets for the purpose of financing such acquisition;
(l)mortgages, Liens, security interests, restrictions, encumbrances or any other matters of record that have been placed by any developer, landlord or other third party on property over which any Group Company has easement rights or on any real property leased by any Group Company, and any condemnation or eminent domain proceedings or compulsory purchase order affecting real property;
(m)Liens existing on the First Issue Date;
(n)Liens in favour of a Group Company;
(o)Liens on insurance policies and the proceeds thereof, or other deposits, to secure insurance premium financings in respect of a Group Company;
(p)Liens arising from financing statement filings (or other similar filings in any applicable jurisdiction) regarding operating leases entered into by any Restricted Subsidiary in the ordinary course of business;
(q)Liens on goods (and the proceeds thereof) and documents of title and the property covered thereby securing Financial Indebtedness in respect of commercial letters of credit issued to facilitate the purchase, shipment or storage of such inventory or other goods;
(r)Liens on property of any Restricted Subsidiary of the Issuer to secure Financial Indebtedness incurred by such Restricted Subsidiary pursuant to Condition 11.3 or paragraphs (i) through (m) (inclusive) of the definition of Permitted Financial Indebtedness;
(s)Liens on property of the Issuer to secure Financial Indebtedness incurred by the Issuer pursuant to paragraph (l) of the definition of Permitted Financial Indebtedness;
(t)Liens for the purpose of securing the payment of all or a part of the purchase price of Capital Lease Obligations or payments incurred by a Group Company to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business; provided that such Liens do not
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encumber any other assets or property of a Group Company other than such assets or property and assets affixed or appurtenant thereto;
(u)Liens on the property of a Group Company to replace in whole or in part, any Lien described in the foregoing paragraphs (a) through (t); provided that any such Lien is limited to all or part of the same property or assets (plus improvements, accessions, proceeds or dividends or distributions in respect thereof) that secured (or, under the written arrangements under which the original Lien arose, could secure) the Financial Indebtedness being refinanced or in respect of property that is the security for a Permitted Lien hereunder;
(v)any interest or title of a lessor under any Capital Lease Obligation or operating lease;
(w)Liens on any escrow account used in connection with an acquisition of property or Capital Stock of any person or pre-funding a refinancing of Financial Indebtedness otherwise permitted under these Terms and Conditions;
(x)Liens on a Group Company's deposits in favour of financial institutions arising from any netting or set-off arrangement substantially consistent with its current practice for the purpose of netting debt and credit balances substantially consistent with the Issuer's or the Restricted Subsidiaries' existing cash pooling arrangements;
(y)Liens incurred in the ordinary course of business of the Issuer or any of its Restricted Subsidiaries with respect to obligations that do not exceed the greater of $500,000,000 or 4 per cent. of Total Assets at any one time outstanding and that do not in the aggregate materially detract from the value of the property of the Issuer, or materially impair the use thereof in the operation of business by the Group;
(z)Liens over cash or other assets that secure collateralised obligations incurred as Permitted Financial Indebtedness; provided that the amount of cash collateral does not exceed the principal amount of the Permitted Financial Indebtedness;
(aa)Liens on Restricted MFS Cash in favour of the customers or dealers of, or third parties in relation to, one or more Restricted Subsidiaries engaged in the provision of mobile financial services, in each case who provided such Restricted MFS Cash to the relevant Restricted Subsidiary;
(bb) Liens on Receivables and related assets of the type described in the definition of "Qualified Receivables Transaction" incurred in connection with a Qualified Receivables Transaction, and Liens on Investments in Receivables Entities;
(cc) Liens consisting of any right of set-off granted to any financial institution acting as a lockbox bank in connection with a Qualified Receivables Transaction;
(dd) Liens for the purpose of perfecting the ownership interests of a purchaser of Receivables and related assets pursuant to any Qualified Receivables Transaction;
(ee) Liens arising in connection with other sales of Receivables permitted hereunder without recourse to the Issuer or any of its Restricted Subsidiaries;
(ff) Liens on Receivables and related assets of the type specified in the definition of "Qualified Receivables Transaction" pursuant to any Qualified Receivables Transaction;
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(gg) Liens for the purpose of securing the payment of all or a part of the purchase price of, or Capital Lease Obligations, Purchase Money Obligations or other payments incurred to finance the acquisition, improvement or construction of, assets or property acquired or constructed in the ordinary course of business (including Liens arising out of conditional sale, title retention, hire purchase, consignment or similar arrangements for the sale of goods entered into in the ordinary course of business), provided that such Liens do not encumber any other assets or property of the Issuer or any Restricted Subsidiary other than such assets or property and assets affixed or appurtenant thereto;
(hh) Liens securing Financial Indebtedness or other obligations of a Restricted Subsidiary owing to the Issuer or another Restricted Subsidiary;
(ii) Liens in respect of the ownership interests in, or assets owned by, any joint ventures or similar arrangements, other than joint ventures and similar arrangements that are Restricted Subsidiaries, securing obligations of such joint ventures or similar agreements;
(jj) any encumbrance or restriction (including, but not limited to, put and call arrangements) with respect to Capital Stock of any joint venture or similar arrangement pursuant to any joint venture or similar agreement;
(kk) Liens over rights under loan agreements relating to, or over notes or similar instruments evidencing, the on-loan of proceeds received by a Restricted Subsidiary from the issuance of Financial Indebtedness, which Liens are created to secure payment of such Financial Indebtedness;
(ll) Liens on Capital Stock or other securities or assets of any Unrestricted Subsidiary that secure Financial Indebtedness of such Unrestricted Subsidiary; and
(mm) Liens securing Acquired Debt described in clause (a) of the definition thereof (provided that any Liens securing Permitted Refinancing Debt with respect thereto shall not be a Permitted Lien pursuant to this paragraph (mm)).
For purposes of determining compliance with Condition 11.4, (x) a Lien need not be incurred solely by reference to one category of Permitted Liens but may be incurred under any combination of such categories (including in part under one such category and in part under any other such category) and (y) in the event that a Lien (or any portion thereof) meets the criteria of one or more of such categories of Permitted Liens the Issuer shall, in its sole discretion, divide, classify or may subsequently reclassify at any time such Lien (or any portion thereof) in any manner that complies with Condition 11.4 and this definition of "Permitted Lien".
With respect to any Lien securing Financial Indebtedness that was permitted to secure such Financial Indebtedness at the time of the incurrence of such Financial Indebtedness, such Lien shall also be permitted to secure any Increased Amount of such Financial Indebtedness. The "Increased Amount" of any Financial Indebtedness shall mean any increase in the amount of such Financial Indebtedness in connection with any accrual of interest, the accretion of accreted value, the amortisation of original issue discount, the payment of interest in the form of additional Financial Indebtedness with the same terms or in the form of common stock, the payment of dividends on Preferred Stock in the form of additional shares of Preferred Stock of the same class, accretion of original issue discount or liquidation preference, any fees, underwriting discounts, accrued and unpaid interest, premiums and other costs and expenses incurred in connection therewith and increases in the amount of
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Financial Indebtedness outstanding solely as a result of fluctuations in the exchange rate of currencies or increases in the value of property securing Financial Indebtedness.
"Permitted Refinancing Debt" means any renewals, extensions, substitutions, defeasances, discharges, refinancings or replacements (each, for purposes of this definition and clause (h) of the definition of Permitted Financial Indebtedness, a "refinancing") of any Financial Indebtedness of a Group Company or pursuant to this definition, including any successive refinancings, as long as:
(i)such Permitted Refinancing Debt is in an aggregate principal amount (or if incurred with original issue discount, an aggregate issue price) not in excess of the sum of: (i) the aggregate principal amount (or, if incurred with original issue discount, the aggregate accreted value plus all accrued interest) then outstanding of the Financial Indebtedness being refinanced; and (ii) an amount necessary to pay any fees and expenses, including premiums and defeasance costs, related to such refinancing;
(ii)such Permitted Refinancing Debt has (i) a stated maturity date that is either (X) no earlier than the stated maturity date of the Financial Indebtedness being refinanced or (Y) after the Final Maturity Date of the Notes and (ii) a Weighted-Average Life to Maturity that is equal to or greater than the Weighted-Average Life to Maturity of the Financial Indebtedness being refinanced;
(iii)if the Financial Indebtedness being refinanced is subordinated in right of payment to the Notes, such Permitted Refinancing Debt is subordinated in right of payment to the Notes on terms at least as favourable to the Noteholders as those contained in the documentation governing the Financial Indebtedness being refinanced; and
(iv)if the Issuer was the obligor on the Financial Indebtedness being refinanced, such Permitted Refinancing Debt is incurred by the Issuer.
Permitted Refinancing Debt in respect of any Credit Facility or any other Financial Indebtedness may be incurred from time to time after the termination, discharge or repayment of all or any part of such Credit Facility or other Financial Indebtedness. Permitted Refinancing Debt shall not include any Financial Indebtedness of the Issuer or any Restricted Subsidiary that refinances Financial Indebtedness of an Unrestricted Subsidiary.
"Preferred Stock" of any person means Capital Stock of such person of any class or classes (however designated) that ranks 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 such person, to shares of Capital Stock of any other class of such person.
"Proceeds On-Loan" has the meaning set forth in the definition "Financial Indebtedness".
"Purchase Date" has the meaning set forth in Condition 9.5.3
"Purchase Money Note" means a promissory note of a Receivables Entity evidencing the deferred purchase price of Receivables (and related assets) and/or a line of credit, which may be irrevocable, from a Group Company in connection with a Qualified Receivables Transaction with a Receivables Entity, which note is intended to finance that portion of the purchase price that is not paid in cash or a contribution of equity and which (a) is repayable
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from cash available to the Receivables Entity, other than (i) amounts required to be established as reserves pursuant to agreements, (ii) amounts paid to investors in respect of interest, (iii) principal and other amounts owing to such investors and (iv) amounts owing to such investors and amounts paid in connection with the purchase of newly generated Receivables and (b) may be subordinated to the payments described in clause (a).
"Purchase Money Obligations" means any Financial Indebtedness incurred to finance or refinance the acquisition, leasing, construction or improvement of property (real or personal) or assets (including Capital Stock), and whether acquired through the direct acquisition of such property or assets or the acquisition of the Capital Stock of any person owning such property or assets, or otherwise.
"Qualified Receivables Transaction" means any transaction or series of transactions that may be entered into by a Group Company pursuant to which a Group Company may sell, convey or otherwise transfer to (i) a Receivables Entity (in the case of a transfer by a Group Company) and (ii) any other person (in the case of a transfer by a Receivables Entity), or may grant a Lien in, any Receivables (whether now existing or arising in the future) of a Group Company, and any assets related thereto including, without limitation, all collateral securing such Receivables, all contracts and all guarantees or other obligations in respect of such Receivables, the proceeds of such Receivables and other assets which are customarily transferred, or in respect of which Liens are customarily granted, in connection with asset securitisations involving Receivables and any Interest Rate, Currency or Commodity Price Agreement entered into by a Group Company in connection with such Receivables.
"Quarter Date" means each of 31 March, 30 June, 30 September and 31 December.
"Quotation Day" means, in relation to any period for which an Interest Rate is to be determined, two Business Days before the first day of that period.
"Rating Agency" means (i) each of Standard & Poor's Rating Services ("S&P"), Fitch Ratings Ltd ("Fitch"), Moody's Investor Services Limited ("Moody's") or (ii) if any of S&P, Fitch or Moody's are not making ratings of the Notes publicly available, an internationally recognised credit rating agency or agencies, as the case may be, selected by the Issuer which will be substituted for any of S&P, Fitch or Moody's.
"Rating Category" means (i) with respect to Fitch, any of the following categories (any of which may include a "+" or "-"): AAA, AA, A, BBB, BB, B, CCC, CC, C, R, SD and D (or equivalent successor categories); (ii) with respect to Moody's, any of the following categories (any of which may include a "1", "2" or "3"): Aaa, Aa, A, Baa, Ba, B, Caa, Ca, and C (or equivalent successor categories), and (iii) the equivalent of any such categories of Fitch or Moody's used by another Rating Agency, if applicable.
"Rating Date" means the date which is the earlier of (i) 120 days prior to the occurrence of an event specified in clauses (a), (b) or (c) of the definition of Change of Control and (ii) the date of the first public announcement of the possibility of such event.
"Rating Decline" means the occurrence of, at any time within the earlier of (i) 90 days after the date of public notice of a Change of Control, or the Issuer's intention or the intention of any person to effect a Change of Control and (ii) the occurrence of the Change of Control (which period shall in either event be extended so long as the rating of the Issuer is under publicly announced consideration for possible downgrade by a Rating Agency), a Rating Agency withdrawal of its rating of the Issuer or a decrease in the rating of the Issuer by a Rating Agency as follows:
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(a) if the Issuer is not rated Investment Grade by at least two of the three Rating Agencies on the Rating Date, by one or more Gradations; or
(b) if the Issuer is rated Investment Grade by at least two of the three Rating Agencies on the Rating Date, either (i) by two or more Gradations or (ii) such that the Issuer is no longer rated Investment Grade.
provided that, when announcing the relevant decision(s) to withdraw or decrease the rating, each such Rating Agency announces publicly or confirms in writing that such decision(s) resulted, in whole or in part, from the occurrence (or expected occurrence) of the Change of Control or the Issuer's announcement of the intention to effect a Change of Control.
"Receivable" means a right to receive payment arising from a sale or lease of goods or the performance of services by a person pursuant to an arrangement with another person pursuant to which such other person is obligated to pay for goods or services under terms that permit the purchase of such goods and services on credit and shall include, in any event, any items of property that would be classified as an "account," "chattel paper," "payment intangible" or "instrument" under the Uniform Commercial Code as in effect in the State of New York and any "supporting obligations" as so defined.
"Receivables Entity" means a direct or indirect wholly owned Subsidiary of the Issuer (or another person in which a Group Company makes an Investment or to which a Group Company transfers Receivables and related assets) which engages in no activities other than in connection with the financing of Receivables and which is designated by the board of directors or senior management of the Issuer (as provided below) as a Receivables Entity:
(a)no portion of the Financial Indebtedness or any other obligations (contingent or otherwise) of which:
(i)is guaranteed by a Group Company (excluding guarantees of obligations (other than the principal of, and interest on, Financial Indebtedness) pursuant to Standard Securitisation Undertakings);
(ii)is recourse to or obligates a Group Company in any way other than pursuant to Standard Securitisation Undertakings; or
(iii)subjects any property or asset of a Group Company, directly or indirectly, contingently or otherwise, to the satisfaction thereof, other than pursuant to Standard Securitisation Undertakings, except, in each such case, Permitted Liens as defined in clauses (bb) through (ff) of the definition thereof;
(b)with which no Group Company has any material contract, agreement, arrangement or understanding (except in connection with a Purchase Money Note or Qualified Receivables Transaction) other than on terms not materially less favourable to such Group Company than those that might be obtained at the time from persons that are not Affiliates of the Issuer, other than fees payable in the ordinary course of business in connection with servicing Receivables; and
(c)to which no Group Company has any obligation to maintain or preserve such entity's financial condition or cause such entity to achieve certain levels of operating results (other than those related to or incidental to the relevant Qualified Receivables Transaction).
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Any such designation by the board of directors or senior management of the Issuer shall be evidenced to the Trustee by promptly filing with the Trustee a certified copy of the resolution of the board of directors of the Issuer giving effect to such designation or an officer's certificate certifying that such designation complied with the foregoing conditions.
"Receivables Repurchase Obligation" means any obligation of a seller of Receivables in a Qualified Receivables Transaction to repurchase Receivables arising as a result of a breach of a representation, warranty or covenant or otherwise, including as a result of a receivable or portion thereof becoming subject to any asserted defence, dispute, offset or counterclaim of any kind as a result of any action taken by, any failure to take action by or any other event relating to the seller.
"Record Date" means the fifth Business Day prior to (i) an Interest Payment Date, (ii) a Redemption Date, (iii) a date on which a payment to the Noteholders is to be made under Condition 13 (Distribution of proceeds) or (iv) another relevant date, or in each case such other Business Day falling prior to a relevant date if generally applicable on the Swedish bond market.
"Redeemable Stock" of any person means any Capital Stock of such person that by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable) or otherwise (including upon the occurrence of an event) matures or is required to be redeemed (pursuant to any sinking fund obligation or otherwise) or is convertible into or exchangeable for Financial Indebtedness or is redeemable at the option of the holder thereof, in whole or in part, at any time prior to the Final Maturity Date.
"Redemption Date" means the date on which the relevant Notes are to be redeemed or repurchased in accordance with Condition 9 (Redemption and repurchase of the Notes).
"Regulated Market" means any regulated market (as defined in Directive 2014/65/EU on markets in financial instruments).
"Restricted Cash" means the sum of (a) Restricted MFS Cash, and (b) without duplication, the amount of cash that would be stated as "restricted cash" on the consolidated statement of financial position of the Issuer as of such date in accordance with IFRS.
"Restricted MFS Cash" means, as of any date of determination, an amount equal to any cash paid in or deposited by or held on behalf of any customer or dealer of, or any other third party in relation to, one or more of the Issuer's Subsidiaries engaged in the provision of mobile financial services and designated as "restricted cash" on the consolidated statement of financial position of the Issuer, together with any interest thereon.
"Restricted Subsidiary" means any Subsidiary of the Issuer other than an Unrestricted Subsidiary.
"Revolving Credit Facility" means the $600 million revolving credit facility agreement dated 15 October 2020 entered into by the Issuer and a consortium of banks, which may be increased by an additional $300 million, as the same may be amended, supplemented, waived or otherwise modified from time to time, or refunded, refinanced, restructured, replaced, renewed, repaid, increased or extended from time to time (whether in whole or in part).
"Securities Account" means the account for dematerialised securities maintained by the CSD pursuant to the Financial Instruments Accounts Act in which (i) an owner of such
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securities is directly registered or (ii) an owner's holding of securities is registered in the name of a nominee.
"Significant Subsidiary" means, at the date of determination, a Restricted Subsidiary that:
(a)for the most recent fiscal year, accounted for more than 10 per cent. of the Consolidated EBITDA of the Group or consolidated revenues of the Group; or
(b)whose assets represent more than 10 per cent. of the assets of the Group.
"Specified Legal Expenses" means, to the extent not constituting an extraordinary, non-recurring or unusual loss, charge or expense, all attorneys' and experts' fees and expenses and all other costs, liabilities (including all damages, penalties, fines and indemnification and settlement payments) and expenses paid or payable in connection with any threatened, pending, completed or future claim, demand, action, suit, proceeding, inquiry or investigation (whether civil, criminal, administrative, governmental or investigative).
"Specified Subsidiary Sale" means the sale, transfer or other disposition of all of the Capital Stock, or all of the assets or properties, of (a) any entity, the primary purpose of which is to own Tower Equipment located in any market in which a Group Company operates; (b) any person which operates a Group Company's mobile financial services business; (c) Latin America Internet Holding GmbH (or any successor in interest thereto); or (d) Africa Internet Holding GmbH (or any successor in interest thereto).
"Standard Securitisation Undertakings" means representations, warranties, covenants and indemnities entered into by a Group Company which are reasonably customary in a securitisation of Receivables transactions, including, without limitation, those relating to the servicing of the assets of a Receivables Entity, it being understood that any Receivables Repurchase Obligation shall be deemed to be a Standard Securitisation Undertaking.
"STIBOR" means:
(a) the Stockholm interbank offered rate (STIBOR) administered by the Base Rate Administrator for the offering of deposits in Swedish Kronor and for a period comparable to the relevant Interest Period (other than the first Interest Period to which, notwithstanding its duration, the applicable percentage rate per annum for the offering of deposits in Swedish Kronor for a period of three months will apply), as displayed on page STIBOR= of the Thomson Reuters screen (or any replacement thereof) as of or around 11:00 a.m. on the Quotation Day;
(b)if no rate described in paragraph (a) is available for the relevant Interest Period, the rate determined by the Trustee by linear interpolation between the two closest rates for STIBOR fixing, as displayed on page STIBOR= of the Thomson Reuters screen (or any replacement thereof) as of or around 11.00 a.m. on the Quotation Date for the offering of deposits in SEK;
(c)if no rate as described in paragraph (a) or (b) is available for the relevant Interest Period, the arithmetic mean of the rates (rounded upwards to four decimal places) as supplied to the Issuing Agent at its request quoted by leading banks in the Stockholm interbank market reasonably selected by the Issuing Agent in consultation with the Issuer, for deposits of SEK 100,000,000 for the relevant period; or
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(d)if no rate as described in paragraph (a) or (b) is available for the relevant Interest Period and no quotation is available pursuant to paragraph (c), the interest rate which according to the reasonable assessment of the Issuing Agent best reflects the interest rate for deposits in Swedish Kronor offered in the Stockholm interbank market for the relevant period.
"Subsidiary" means in respect of any person:
(a)any corporation in which it or one or more of its Subsidiaries directly or indirectly owns more than 50 per cent. of the combined voting power of the outstanding Voting Stock; or
(b)any other entity in which it or one or more of its Subsidiaries:
(i)directly or indirectly has majority ownership, but only to the extent such majority ownership results in an entitlement to the majority of the profits generated by that entity; or
(ii)has the power to direct the policies, management and affairs thereof.
"Sustainability Bond Framework" means the sustainability bond framework of the Group as at the First Issue Date.
"Swedish Kronor" and "SEK" means the lawful currency of Sweden.
"Total Assets" means the consolidated total assets of the Group as shown on the Issuer's most recent consolidated statement of financial position prepared on the basis of IFRS prior to the relevant date of determination calculated to give pro forma effect to any acquisitions (including through mergers or consolidations) and dispositions that have occurred subsequent to such period, including any such acquisitions to be made with the proceeds of Financial Indebtedness giving rise to the need to calculate Total Assets.
"Total Nominal Amount" means the total aggregate Nominal Amount of the Notes outstanding at the relevant time.
"Tower Equipment" means passive infrastructure related to telecommunications services, excluding telecommunications equipment, but including, without limitation, towers (including tower lights and lightning rods), power breakers, deep cycle batteries, generators, voltage regulators, main AC power, rooftop masts, cable ladders, grounding, walls and fences, access roads, shelters, air conditioners and BTS batteries owned by any Group Company.
"Trust Deed" means the trust deed entered into on or prior to the First Issue Date, between the Issuer and the Trustee, or any replacement or supplemental trust deed entered into between the Issuer and the Trustee thereafter.
"Trustee" means Intertrust CN (Sweden) AB, Swedish Reg. No. 556625-5476, or another party replacing it, as Trustee, in accordance with these Terms and Conditions and the Trust Deed.
"Unrestricted Subsidiary" means any Subsidiary of the Issuer designated as such pursuant to Condition 11.8.
"U.S. Dollar Equivalent" means with respect to any monetary amount in a currency other than U.S. Dollars, at any time of determination thereof, the amount of U.S. Dollars
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obtained by translating such other currency involved in such computation into U.S. Dollars at the spot rate for the purchase of U.S. Dollars with the applicable other currency as published in the Financial Times on the date that is two Business Days prior to such determination.
"U.S. Dollars" and "$" means the lawful currency of the United States of America.
"VAT" means:
(a)any tax imposed in compliance with the Council Directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112); and
(b)any other tax of a similar nature, whether imposed in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in paragraph (a) above, or imposed elsewhere.
"Voting Stock" of any person means Capital Stock of such person which ordinarily has voting power for the election of directors (or persons performing similar functions) of such person, whether at all times or only so long as no senior class of securities has such voting power by reason of any contingency.
"Weighted-Average Life to Maturity" means, when applied to any Financial Indebtedness or Preferred Stock at any date, the number of years obtained by dividing (a) the then outstanding principal amount of such Financial Indebtedness or liquidation preference of such Preferred Stock, as the case may be, into (b) the total of the product obtained by multiplying (x) the amount of each then remaining instalment, sinking fund, serial maturity or other required payments of principal or payment upon mandatory redemption, including payment at final maturity, in respect thereof, by (y) the number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment.
"Written Procedure" means the written or electronic procedure for decision making among the Noteholders in accordance with Condition 16 (Written Procedure).
1.2Construction
1.2.1Unless a contrary indication appears, any reference in these Terms and Conditions to:
(a) "assets" includes present and future properties, revenues and rights of every description;
(b)any agreement or instrument is a reference to that agreement or instrument as supplemented, amended, novated, extended, restated or replaced from time to time;
(c)a "regulation" includes any regulation, rule or official directive, request or guideline (whether or not having the force of law) of any governmental, intergovernmental or supranational body, agency, department or regulatory, self-regulatory or other authority or organisation;
(d)a provision of law is a reference to that provision as amended or re-enacted; and
(e)a time of day is a reference to Stockholm time.
1.2.2An Event of Default is continuing if it has not been remedied or waived.
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1.2.3When ascertaining whether a limit or threshold specified in SEK has been attained or broken, an amount in another currency shall be counted on the basis of the rate of exchange for such currency against SEK for the previous Business Day, as published by the Swedish Central Bank (Riksbanken) on its website (www.riksbank.se). If no such rate is available, the most recently published rate shall be used instead.
1.2.4A notice shall be deemed to be sent by way of press release if it is made available to the public within Sweden promptly
1.2.5No delay or omission of the Trustee or of any Noteholder to exercise any right or remedy under the Finance Documents shall impair or operate as a waiver of any such right or remedy.
1.2.6The selling restrictions, the privacy notice and any other information contained in this document before the table of contents section do not form part of these Terms and Conditions and may be updated without the consent of the Noteholders and the Trustee.
2.STATUS OF THE NOTES
2.1The Notes are denominated in SEK and each Note is constituted by the Trust Deed and these Terms and Conditions. The Issuer undertakes to make payments in relation to the Notes and to comply with these Terms and Conditions.
2.2By subscribing for Notes, each initial Noteholder agrees that the Notes shall benefit from and be subject to the Finance Documents and by acquiring Notes, each subsequent Noteholder confirms such agreement.
2.3The nominal amount of each Initial Note is SEK 1,250,000 (the "Nominal Amount"). All Initial Notes are issued on a fully paid basis at an issue price of 100 per cent. of the Nominal Amount.
2.4Provided that no Event of Default is continuing or would result from such issue and subject to the terms of the Trust Deed and the satisfaction of the conditions precedent set out in Condition 4.1, the Issuer may, from time to time, without the consent of the Noteholders, issue Additional Notes having the same interest rate and ranking pari passu in all respects and so that the same shall be consolidated and form a single series with the Initial Notes and any other Additional Notes. The issue price of the Additional Notes may be set at a discount or at a premium compared to the Initial Notes. The aggregate nominal amount of Notes is not limited. Each Additional Note shall entitle its holder to Interest in accordance with Condition 8.1, and otherwise have the same rights as the Initial Notes.
2.5The Notes constitute direct, general, unconditional, unsubordinated and unsecured obligations of the Issuer and shall at all times rank pari passu and without any preference among them and at least pari passu with all other direct, unconditional, unsubordinated and unsecured obligations of the Issuer, except obligations which are mandatorily preferred by law.
2.6The Notes are freely transferable but the Noteholders may be subject to purchase or transfer restrictions with regard to the Notes, as applicable, under local laws to which a Noteholder may be subject. Each Noteholder must ensure compliance with such restrictions at its own cost and expense.
2.7No action is being taken in any jurisdiction that would or is intended to permit a public offering of the Notes or the possession, circulation or distribution of any document or other
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material relating to the Issuer or the Notes in any jurisdiction other than Sweden, where action for that purpose is required. Each Noteholder must inform itself about, and observe, any applicable restrictions to the transfer of material relating to the Issuer or the Notes.
3.USE OF PROCEEDS
The Issuer shall use the Net Proceeds to finance or refinance Eligible Assets and Projects in accordance with the Sustainability Bond Framework. The proceeds from any issuance of Additional Notes shall be used for substantially the same purposes, in each case in accordance with the Sustainability Bond Framework.
4.CONDITIONS PRECEDENT
4.1Prior to the issuance of any Additional Notes, the Issuer shall provide to the Issuing Agent the following documents and evidence, in form and substance satisfactory to the Issuing Agent (acting reasonably):
(a)a copy of a resolution from the board of directors of the Issuer approving the issue of the Additional Notes and resolving to enter into any documents necessary in connection therewith;
(b)a certificate addressed to the Trustee, duly signed by the Issuer, evidencing for the relevant issue of Additional Notes that (i) no Event of Default is continuing or would result from such issue and (ii) in relation to such issue, the requirements of Condition 11.3 have been complied with; and
(c)such other documents and information as is agreed between the Issuing Agent and the Issuer.
4.2The Issuing Agent and the Trustee (as the case may be) may assume that the documentation delivered to it pursuant to Condition 4.1 is accurate, correct and complete unless it has actual knowledge that this is not the case, and neither the Issuing Agent nor the Trustee shall be required to verify the contents of any such documentation.
5.NOTES IN BOOK-ENTRY FORM
5.1The Notes will be registered for the Noteholders on their respective Securities Accounts and no physical notes will be issued. Accordingly, the Notes will be registered in accordance with the Financial Instruments Accounts Act. Registration requests relating to the Notes shall be directed to an Account Operator.
5.2Those who according to assignment, Lien, the provisions of the Swedish Children and Parents Code (föräldrabalken (1949:381)), conditions of will or deed of gift or otherwise have acquired a right to receive payments in respect of a Note shall register their entitlements to receive payment in accordance with the Financial Instruments Accounts Act.
5.3The Issuer and the Trustee shall at all times be entitled to obtain information from the debt register (skuldbok) kept by the CSD in respect of the Notes. For the purpose of carrying out any administrative procedure that arises out of the Finance Documents, the Issuing Agent shall be entitled to obtain information from the debt register kept by the CSD in respect of the Notes.
5.4The Issuer shall issue any necessary power of attorney to such persons employed by the Trustee, as notified by the Trustee, in order for such individuals to independently obtain
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information directly from the debt register kept by the CSD in respect of the Notes. The Issuer may not revoke any such power of attorney unless directed by the Trustee or unless consent thereto is given by the Noteholders.
5.5The Issuer and the Trustee may use the information referred to in Condition 5.3 and 5.4 only for the purpose of carrying out their duties and exercising their rights in accordance with the Finance Documents and shall not disclose such information to any Noteholders or third party unless necessary for such purpose.
6.RIGHT TO ACT ON BEHALF OF A NOTEHOLDER
6.1If any person other than a Noteholder (including the beneficial owner of a Note, if such person is not the Noteholder) wishes to exercise any rights of a Noteholder under the Finance Documents on behalf of such Noteholder, it must obtain a power of attorney or other proof of authorisation from the Noteholder or a successive, coherent chain of powers of attorney or proofs of authorisation starting with the Noteholder and authorising such person.
6.2A Noteholder may issue one or several powers of attorney to third parties to represent it in relation to some or all of the Notes held by it. Any such representative may act independently under the Finance Documents in relation to the Notes for which such representative is entitled to represent the Noteholder and may further delegate its right to represent the Noteholder by way of a further power of attorney.
6.3The Trustee shall only have to examine the face of a power of attorney or other proof of authorisation that has been provided to it pursuant to Condition 6.2 and may assume that it has been duly authorised, is valid, has not been revoked or superseded and is in full force and effect, unless otherwise apparent from its face or the Trustee has actual knowledge to the contrary.
7.PAYMENTS IN RESPECT OF THE NOTES
7.1Any payment or repayment under the Finance Documents, or any amount due in respect of a repurchase of any Notes pursuant to these Terms and Conditions, shall be made to such person who is registered as a Noteholder on the Record Date prior to an Interest Payment Date or other relevant due date, or to such other person who is registered with the CSD on such date as being entitled to receive the relevant payment, repayment or repurchase amount.
7.2Deposits of principal, interest or any other payment shall be made to the bank account registered by the relevant Noteholder with the CSD and effected by the CSD on the relevant payment date. Should the CSD, due to a delay on behalf of the Issuer or some other obstacle, not be able to effect payments as aforesaid, the Issuer shall promptly provide notice of such non-payment to the Trustee in accordance with Condition 24 (Notices and Press Releases) and procure that such amounts are paid to the persons who are registered as Noteholders on the relevant Record Date as soon as possible after such obstacle has been removed.
7.3If, due to any obstacle for the CSD, the Issuer cannot make a payment or repayment, such payment or repayment may be postponed until the obstacle has been removed. Interest shall accrue in accordance with Condition 8.4 during such postponement.
7.4If payment or repayment is made in accordance with this Condition 7, the Issuer and the CSD shall be deemed to have fulfilled their obligation to pay, irrespective of whether such payment was made to a person not entitled to receive such amount. The Trustee shall have no obligation to ensure any payments or repayments made in accordance with this Condition 7.4 are actually received by the person entitled to such payment or repayment.
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7.5 Neither the Issuer nor the Trustee shall be liable to gross-up any payments under the Finance Documents by virtue of any withholding tax, public levy or similar obligation.
8.INTEREST
8.1Each Initial Note shall bear Interest at the Interest Rate applied to the Nominal Amount from (but excluding) the First Issue Date up to (and including) the relevant Redemption Date. Any Additional Note will bear Interest at the Interest Rate applied to the Nominal Amount from (but excluding) the Interest Payment Date falling immediately prior to its issuance (or the First Issue Date if there is no such Interest Payment Date) up to (and including) the relevant Redemption Date.
8.2Interest accrues during an Interest Period. Payment of Interest in respect of the Notes shall be made to the Noteholders on each Interest Payment Date for the preceding Interest Period in accordance with Condition 7.
8.3Interest shall be calculated on the basis of the actual number of days in the Interest Period in respect of which payment is being made divided by 360 (actual/360-days basis).
8.4If the Issuer fails to pay any amount payable by it on its due date, default interest shall accrue on the overdue amount from (but excluding) the due date up to (and including) the date of actual payment at a rate which is one per cent. higher than the Interest Rate for such Interest Period. Accrued default interest shall not be capitalised. No default interest shall accrue where the failure to pay was solely attributable to the Issuing Agent or the CSD.
9.REDEMPTION AND REPURCHASE OF THE NOTES
9.1Redemption at maturity
The Issuer shall redeem all, but not some only, of the outstanding Notes in full on the Final Maturity Date with an amount per Note equal to the Nominal Amount together with accrued but unpaid Interest. If the Final Maturity Date is not a Business Day, then the redemption shall occur on the first Business Day following the Final Maturity Date.
9.2Purchase of Notes by Group Companies
Any Group Company may, subject to applicable law, at any time and at any price purchase Notes in the open market or in any other way. Notes held by a Group Company may at such Group Company's discretion be retained or sold or, if held by the Issuer, cancelled by the Issuer.
9.3Voluntary total redemption (call option)
9.3.1At any time on or after the First Call Date, the Issuer may redeem all, but not some only, of the outstanding Notes at an amount per Note equal to (i) if redeemed during the 12- month period commencing on 20 January 2024, 101.500 per cent. of the Nominal Amount, (ii) if redeemed during the 12-month period commencing on 20 January 2025, 100.750 per cent. of the Nominal Amount, (iii) if redeemed during the 9-month period commencing on 20 January 2026, 100.375 per cent. of the Nominal Amount and (iv) if redeemed during the 3-month period commencing on 20 October 2026, 100 per cent. of the Nominal Amount, in each case together with accrued but unpaid Interest.
9.3.2Redemption in accordance with Condition 9.3.1 shall be made by the Issuer giving not less than 15 Business Days' notice to the Noteholders and the Trustee. The notice from the Issuer
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shall specify the Redemption Date and the Record Date on which a person shall be registered as a Noteholder to receive the amounts due on such Redemption Date. The notice is irrevocable but may, at the Issuer's discretion, contain one or more conditions precedent. Upon fulfilment of the conditions precedent (if any), the Issuer is bound to redeem the Notes specified in the notice at the applicable amount on the specified Redemption Date.
9.4Early redemption due to illegality (call option)
9.4.1The Issuer may redeem all, but not some only, of the outstanding Notes at an amount per Note equal to the Nominal Amount together with accrued but unpaid Interest on a date determined by the Issuer if it is or becomes unlawful for the Issuer to perform its obligations under the Finance Documents.
9.4.2The Issuer shall give written notice of redemption pursuant to Condition 9.4.1 no later than 20 Business Days after having received actual knowledge of any event specified therein (after which time period such right shall lapse). The notice from the Issuer is irrevocable and shall specify the Redemption Date and the Record Date on which a person shall be registered as a Noteholder to receive the amounts due on such Redemption Date. The Issuer is bound to redeem the Notes in full at the applicable amount on the specified Redemption Date.
9.5Repurchase with Excess Proceeds (put option)
9.5.1If, in accordance with Condition 11.5, the aggregate amount of Excess Proceeds from the disposition of assets by the Issuer or any of its Subsidiaries (other than an Unrestricted Subsidiary) exceeds $75 million (or its equivalent in any other currency or currencies), the Issuer shall make an offer to repurchase from the Noteholders and from the holders of any Pari Passu Financial Indebtedness, to the extent required by the terms thereof, on a pro rata basis, in accordance with this Condition 9.5 or the agreements governing any such Pari Passu Financial Indebtedness, in cash the maximum principal amount of the Notes (at an amount per Note equal to 100 per cent. of the Nominal Amount together with accrued but unpaid Interest if any to the date of purchase) and any such Pari Passu Financial Indebtedness (at a price no greater than 100 per cent. of the principal amount (or accreted value, as applicable) of such Pari Passu Financial Indebtedness together with accrued and unpaid interest if any to the date of purchase) that may be purchased with the amount of the Excess Proceeds (an "Excess Proceeds Offer").
9.5.2The Issuer shall give written notice of its offer to redeem pursuant to Condition 9.5.1 no later than 20 Business Days after the end of the 365 day period referred to in Condition 11.5.1(c). The notice from the Issuer is irrevocable and shall specify the amount of Notes that may be repurchased, the Purchase Date and the Record Date on which a person shall be registered as a Noteholder to receive the amounts due on such Purchase Date.
9.5.3Each Excess Proceeds Offer will remain open for a period of at least 20 Business Days and not more than 60 Business Days, following its commencement except to the extent that a longer period is required by applicable law (the "Offer Period"). No later than three Business Days after the termination of the Offer Period (the "Purchase Date"), the Issuer will apply all Excess Proceeds (the "Offer Amount") to the purchase of the Notes and, if applicable, such other Pari Passu Financial Indebtedness (on a pro rata basis based on the principal amount of the Notes and such other Pari Passu Financial Indebtedness surrendered, if applicable or, if less than the Offer Amount has been tendered, all Notes tendered and, if applicable, other Financial Indebtedness tendered in response to the Excess Proceeds Offer).
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9.5.4If the Purchase Date is on or after a Record Date for the payment of interest and on or before the related payment date, any accrued and unpaid interest, if any, will be paid to the person in whose name a Note is registered at the close of business on such record date, and no additional interest will be payable to Noteholders who tender Notes pursuant to the Excess Proceeds Offer.
9.5.5Upon the commencement of an Excess Proceeds Offer, the Issuer will send, by first class mail, a notice to the Trustee and each of the Noteholders with a copy to the Trustee. The notice will contain all instructions and materials necessary to enable such Noteholders to tender Notes pursuant to the Excess Proceeds Offer. The notice, which will govern the terms of the Excess Proceeds Offer, will state:
(a)that the Excess Proceeds Offer is being made pursuant to this Condition 9.5 and the length of time the Excess Proceeds Offer will remain open;
(b)the Offer Amount, the purchase price and the Purchase Date;
(c)that any Note not tendered or accepted for payment will continue to accrue interest;
(d)that, unless the Issuer defaults in making such payment, any Note accepted for payment pursuant to the Excess Proceeds Offer will cease to accrue interest after the Purchase Date;
(e)that Notes purchased pursuant to the Excess Proceeds Offer will be purchased in a minimum amount of SEK 1,250,000;
(f)the manner in which Noteholders electing to have a Note purchased pursuant to any Excess Proceeds Offer will be required to transfer such Note to the Issuer or its agent before the Purchase Date;
(g)the circumstances under which Noteholders will be entitled to withdraw their election prior to the expiration of the Offer Period and the procedures required in relation to such withdrawal; and
(h)that, if the aggregate principal amount of Notes and other Pari Passu Financial Indebtedness surrendered by holders thereof exceeds the Offer Amount, the Issuer (or its agent) will randomly select the Notes and other Pari Passu Financial Indebtedness to be purchased on a pro rata basis based on the principal amount of Notes and such other Pari Passu Financial Indebtedness surrendered (provided that Notes will be purchased in a minimum amount of SEK 1,250,000).
9.5.6On or before the Purchase Date, the Issuer will, to the extent lawful, accept for repurchase, the Offer Amount of Notes and, if applicable, other Pari Passu Financial Indebtedness tendered pursuant to the Excess Proceeds Offer (which Notes and, if applicable, other Pari Passu Financial Indebtedness shall be randomly selected by the Issuer or its agent if more than the Offer Amount has been tendered), or if less than the Offer Amount has been tendered, all Notes and, if applicable, other Pari Passu Financial Indebtedness tendered. The Issuer will pay each tendering Noteholder an amount equal to the purchase price of the Notes tendered by such Noteholder and accepted by the Issuer for purchase. Any purchase pursuant to this Condition 9.5 shall not be subject to conditions precedent.
9.5.7To the extent that the amount of Notes and any such Pari Passu Financial Indebtedness purchased pursuant to this Condition 9.5 is less than the aggregate amount of Excess Proceeds, the Issuer may use the amount of such Excess Proceeds not used to purchase Notes
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and such Pari Passu Financial Indebtedness for purposes that are not otherwise prohibited by these Terms and Conditions. Upon completion of each redemption, the amount of Excess Proceeds will be reset to zero.
9.6Mandatory repurchase due to a Change of Control Triggering Event or a Listing Failure Event (put option)
9.6.1Upon the occurrence of a Change of Control Triggering Event or a Listing Failure Event, each Noteholder shall during a period of 20 Business Days from the effective date of a notice from the Issuer of the Change of Control Triggering Event or Listing Failure Event, as applicable, pursuant to Condition 10.1.2 (after which time period such right shall lapse), have the right to request that all, or some only, of its Notes be repurchased at a price per Note equal to 101 per cent. of the Nominal Amount together with accrued but unpaid Interest. However, such period may not start earlier than upon the occurrence of the Change of Control Triggering Event or Listing Failure Event, as applicable.
9.6.2The notice from the Issuer pursuant to Condition 10.1.2 shall specify the Record Date on which a person shall be registered as a Noteholder to receive interest and principal and the Redemption Date and include instructions about the actions that a Noteholder needs to take if it wants Notes held by it to be repurchased. If a Noteholder has so requested, and acted in accordance with the instructions in the notice from the Issuer, the Issuer shall repurchase the relevant Notes and the repurchase amount shall fall due on the Redemption Date specified in the notice given by the Issuer pursuant to Condition 10.1.2. The Redemption Date must fall no later than 40 Business Days after the end of the period referred to in Condition 9.6.1.
9.6.3If Noteholders representing more than 75 per cent. of the Adjusted Nominal Amount have requested that Notes held by them are repurchased pursuant to this Condition 9.6, the Issuer shall, no later than five Business Days after the end of the period referred to in Condition 9.6.1, send a notice to the remaining Noteholders, if any, giving them a further opportunity to request that Notes held by them be repurchased on the same terms during a period of 20 Business Days from the date such notice is effective. Such notice shall specify the Redemption Date and the Record Date on which a person shall be registered as a Noteholder to receive the amounts due on such Redemption Date and also include instructions about the actions that a Noteholder needs to take if it wants Notes held by it to be repurchased. If a Noteholder has so requested, and acted in accordance with the instructions in the notice from the Issuer, the Issuer shall repurchase the relevant Notes and the repurchase amount shall fall due on the Redemption Date specified in the notice given by the Issuer pursuant to this Condition 9.6.3. The Redemption Date must fall no later than 40 Business Days after the end of the period of 20 Business Days referred to in this Condition 9.6.3.
9.6.4The Issuer shall comply with the requirements of any applicable securities laws or regulations in connection with the repurchase of Notes. To the extent that the provisions of such laws and regulations conflict with the provisions in this Condition 9.6, the Issuer shall comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Condition 9.6 by virtue of the conflict.
9.6.5The Issuer shall not be required to repurchase any Notes pursuant to this Condition 9.6 if a third party in connection with the occurrence of a Change of Control Triggering Event or a Listing Failure Event offers to purchase the Notes in the manner and on the terms set out in this Condition 9.6 (or on terms more favourable to the Noteholders) and purchases all Notes validly tendered in accordance with such offer. If Notes tendered are not purchased within the time limits stipulated in this Condition 9.6, the Issuer shall repurchase any such Notes within five Business Days after the expiry of the time limit.
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9.6.6No repurchase of Notes pursuant to this Condition 9.6 shall be required if the Issuer has given notice of a redemption pursuant to Condition 9.3 (Voluntary total redemption (call option)), provided that such redemption is duly exercised.
10.INFORMATION TO NOTEHOLDERS
10.1Information from the Issuer
10.1.1The Issuer shall provide the following information to the Trustee and make the same available to the Noteholders by way of press release (except as otherwise provided below) and by publication on the website of the Issuer:
(a)as soon as the same become available, but in any event within four months after the end of each Financial Year, the Issuer's audited consolidated financial statements for that Financial Year prepared in accordance with IFRS;
(b)as soon as the same become available, but in any event within two months after the end of each quarter of each Financial Year, the Issuer's consolidated financial statements or the year-end report (bokslutskommuniké) (as applicable) for such period prepared in accordance with IFRS;
(c)as soon as practicable following an acquisition or disposal of Notes by a Group Company, the aggregate Nominal Amount held by Group Companies, or the amount of Notes cancelled by the Issuer, solely by publication on the Issuer's website; and
(d)any other information required by the Swedish Securities Markets Act (lag (2007:582) om värdepappersmarknaden), Regulation No 596/2014 on market abuse and the rules and regulations of the Regulated Market on which the Notes are admitted to trading.
10.1.2The Issuer shall promptly notify the Noteholders and the Trustee in writing upon becoming aware of the occurrence of a Change of Control Triggering Event or a Listing Failure Event. Such notice may be given in advance of the occurrence of a Change of Control and conditioned upon the occurrence of a Change of Control Triggering Event, if a definitive agreement is in place providing for a Change of Control.
10.1.3When the financial statements and other information are made available to the Noteholders pursuant to Condition 10.1.1, the Issuer shall send copies of such financial statements and other information to the Trustee. Together with the annual financial statements of the Issuer, the Issuer shall submit to the Trustee a compliance certificate in a form agreed between the Issuer and the Trustee containing a confirmation that no Default or Event of Default has occurred (or, if a Default or an Event of Default has occurred, what steps have been taken to remedy it).
10.1.4The Issuer shall promptly notify the Trustee in writing (with full particulars) upon becoming aware of the occurrence of any event or circumstance which constitutes a Default or an Event of Default, and shall provide the Trustee with such further information as the Trustee may reasonably request in writing following receipt of such notice. Should the Trustee not receive such information, the Trustee is entitled to assume that no such event or circumstance exists or can be expected to occur, provided that the Trustee does not have actual knowledge by way of written notice of such event or circumstance.
10.1.5The Issuer is only obliged to inform the Trustee as set out in this Condition 10 if informing the Trustee would not conflict with any applicable laws or, when the Notes are listed, the
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Issuer's registration contract with the Regulated Market. If such a conflict would exist pursuant to the listing contract with the Regulated Market or otherwise, the Issuer shall however be obliged to either seek approval from the Regulated Market or undertake other reasonable measures, including entering into a non-disclosure agreement with the Trustee, in order to be able to timely inform the Trustee as set out in this Condition 10.
10.2Information from the Trustee
10.2.1Subject to the restrictions of a non-disclosure agreement entered into by the Trustee in accordance with this Condition 10.2.1 and applicable law, the Trustee is entitled to disclose to the Noteholders any event or circumstance directly or indirectly relating to the Issuer or the Notes. Notwithstanding the foregoing, the Trustee may if it considers it to be beneficial to the interests of the Noteholders delay disclosure or refrain from disclosing certain information other than in respect of an Event of Default that has occurred and is continuing.
10.2.2If a committee representing the Noteholders' interests under the Finance Documents has been appointed by the Noteholders pursuant to Condition 14 (Decisions by Noteholders), the members of such committee may agree with the Issuer not to disclose information received from the Issuer, provided that it, in the reasonable opinion of such members, is beneficial to the interests of the Noteholders. The Trustee shall be a party to such agreement and receive the same information from the Issuer as the members of the committee.
10.3Publication of Finance Documents
10.3.1The latest version of these Terms and Conditions (including any document amending these Terms and Conditions), together with copies of the Sustainability Bond Framework and the second opinion of Sustainalytics on the Sustainability Bond Framework, shall be available on the website of the Issuer.
10.3.2The latest versions of the Finance Documents (including any documents amending such Finance Documents) shall be made available to the Noteholders at the office of the Trustee during normal business hours.
11.GENERAL UNDERTAKINGS
11.1Change of Business
The Issuer shall ensure that no substantial change is made to the general nature of the business of the Issuer or the Group from that carried on at the First Issue Date, provided that this Condition shall not prevent the Issuer from engaging in any Permitted Business.
11.2Preservation of properties
Subject to Permitted Discontinuance of Property Maintenance, the Issuer shall (and shall ensure that each other Group Company will) maintain in good repair, working order and condition (ordinary wear and tear excepted) all of its material properties necessary or desirable in the conduct of its business, all in accordance with the judgment of the Issuer (acting reasonably).
11.3Financial Indebtedness
The Issuer may not (and shall ensure that no other Group Company will), directly or indirectly incur any Financial Indebtedness, unless:
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(a)at the time of such incurrence or immediately following the incurrence of such Financial Indebtedness and the application of the proceeds thereof, on a pro forma basis, the Net Leverage Ratio is less than 3.0 to 1.0; or
(b)the Financial Indebtedness is Permitted Financial Indebtedness.
11.4Negative pledge
The Issuer shall not (and shall ensure that no other Group Company will), directly or indirectly,
(a) create or permit to subsist any Lien over any of its assets; or
(b)(i) sell, transfer or otherwise dispose of any of its assets on terms whereby they are or may be leased to or re-acquired by any Group Company; (ii) sell, transfer or otherwise dispose of any of its receivables on recourse terms; (iii) enter into any arrangement under which money or the benefit of a bank or other account may be applied, set-off or made subject to a combination of accounts; or (iv) enter into any other preferential arrangement having a similar effect (each of paragraphs (i)-(iv) being a "Quasi-Security"), in circumstances where the arrangement or transaction is entered into primarily as a method of raising Financial Indebtedness or of financing the acquisition of an asset,
unless the Lien or Quasi-Security is a Permitted Lien.
11.5Disposal of Assets
11.5.1The Issuer may not, and may not permit any other Group Company to, make any Asset Disposition in one or more related transactions unless:
(a)the consideration the Issuer or such Group Company receives for such Asset Disposition is not less than the Fair Market Value of the assets sold (as determined by the Issuer's senior management or board of directors); and
(b)unless the Asset Disposition is a Permitted Asset Swap, at least 75 per cent. of the consideration the Issuer or such Group Company receives in respect of such Asset Disposition consists of:
(i)cash or Cash Equivalents;
(ii)the assumption of a Group Company's Financial Indebtedness or other liabilities (other than contingent liabilities or Financial Indebtedness or liabilities that are subordinated to the Notes) or Financial Indebtedness or other liabilities of such Group Company relating to such assets and, in each case, the Group Company is released from all liability on the Financial Indebtedness assumed;
(iii)any Capital Stock or assets of the kind referred to in paragraphs (c)(iv) or (c)(v) of Condition 11.5.1(c); or
(iv)a combination of the consideration specified in paragraphs (i) to (iii) (inclusive) of this Condition 11.5.1(b); and
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(c)within 365 days of such Asset Disposition, the Net Available Proceeds are applied (at the applicable Group Company's option):
(i)to repay, redeem, retire or cancel outstanding Financial Indebtedness secured by Lien over the assets of any Group Company;
(ii)if such Net Available Proceeds are received by the Issuer or any of its Restricted Subsidiaries, first, to redeem Notes or purchase Notes pursuant to an offer to all Noteholders at a purchase price equal to at least 100 per cent. of the principal amount thereof, plus accrued and unpaid interest and second, to the extent any Net Available Proceeds from such Asset Disposition remain, to any other use as determined by the Issuer or the applicable Restricted Subsidiary that is not otherwise prohibited by these Terms and Conditions;
(iii)to repurchase, prepay, redeem or repay any Pari Passu Financial Indebtedness; provided that if such Net Available Proceeds are received by the Issuer or any of its Restricted Subsidiaries, the Issuer makes an offer to all Noteholders on a pro rata basis to purchase their Notes in accordance with Condition 9.5 (Repurchase with Excess Proceeds (put option));
(iv)to acquire all or substantially all of the assets of, or any Capital Stock of, another Permitted Business, if, after giving effect to any such acquisition of Capital Stock, the Permitted Business is or becomes a Group Company;
(v)to make a capital expenditure or acquire other assets (other than Capital Stock and cash or Cash Equivalents), rights (contractual or otherwise) and properties, whether tangible or intangible (including ownership interests) that are used or intended for use in connection with a Permitted Business;
(vi)to the extent permitted, to redeem Notes as provided under Condition 9.3 (Voluntary total redemption (call option));
(vii)to enter into a binding commitment to apply the Net Available Proceeds pursuant to paragraphs (iv) or (v) of this Condition 11.5.1(c) (which will be deemed to constitute a permitted application of the Net Available Proceeds from the date of such commitment until the earlier of (X) the date on which such acquisition or expenditure is consummated and (Y) the 180th day following the expiration of the initial 365-day period); or
(viii)any combination of the foregoing paragraphs (i) to (vii) (inclusive) of this Condition 11.5.1(c).
11.5.2For purposes of Condition 11.5.1(c), any securities, notes or other obligations received by a Group Company from such transferee that are promptly converted by the recipient thereof into cash, Cash Equivalents or readily marketable securities (to the extent of the cash, Cash Equivalents or readily marketable securities received in that conversion), shall be deemed cash.
11.5.3The amount of such Net Available Proceeds received by the Issuer or any of its Restricted Subsidiaries and not applied pursuant to Condition 11.5.1(c) will constitute "Excess Proceeds". Pending the final application of any such Net Available Proceeds, the Issuer may temporarily use such Net Available Proceeds in any manner that is not prohibited by the terms of these Terms and Conditions.
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11.6Merger
The Issuer may not, in a single transaction or a series of related transactions, (i) consolidate with or merge into any other person, or (ii) directly or indirectly, convey, transfer, sell, lease or otherwise dispose of all or substantially all of its assets to any other person, unless:
(a)the Issuer is the surviving corporation; or (ii) the person formed by or surviving any such consolidation or merger (if other than the Issuer) or to which such sale, assignment, transfer, conveyance or other disposition has been made,
(i)shall expressly assume all of the Issuer's obligations under the Trust Deed and these Terms and Conditions and,
(ii)is organised under the laws of any member state of the European Union, the United Kingdom, Norway, Switzerland, Canada, Jersey, Guernsey, Mauritius, Cayman Islands, British Virgin Islands, any state of the United States of America or the District of Columbia
(b)immediately after giving effect to such transaction, no Default or Event of Default shall have occurred and be continuing
(c)immediately after giving effect to such transaction and treating any Financial Indebtedness which becomes a Group Company's obligation, as applicable, as a result of such transaction as having been incurred at the time of the transaction, (x) a Group Company could incur at least $1.00 of additional Financial Indebtedness pursuant to Condition 11.3(a) or (y) the Net Leverage Ratio would not be greater than such ratio before giving effect to such transaction; provided that this paragraph (c) will not apply if, in the good faith determination of the Issuer's board of directors the principal purpose of such transaction is to change the Issuer's jurisdiction of incorporation; and
(d)the Issuer delivers to the Trustee a certificate stating that such consolidation, merger or transfer complies with this Condition 11.6.
11.7Admission to trading and listing
11.7.1The Issuer intends that the Initial Notes and any Additional Notes (as applicable), are admitted to trading on the sustainable bond list of Nasdaq Stockholm (or, if such admission to trading is not possible to obtain or maintain, admitted to trading on another Regulated Market) within 30 days after each of the First Issue Date and the date of issuance of any Additional Notes. The Issuer shall in any event ensure that the Initial Notes and any Additional Notes are admitted to trading on the sustainable bond list of Nasdaq Stockholm (or, if such admission to trading is not possible to obtain or maintain, admitted to trading on another Regulated Market) within 120 days after the First Issue Date and the date of issuance of any Additional Notes (as applicable).
11.7.2Following an admission to trading and listing on the sustainable bond list of Nasdaq Stockholm (or any other Regulated Market, as applicable), the Issuer shall use all reasonable efforts to ensure that the Notes continue being listed thereon (however, taking into account the rules and regulations of Nasdaq Stockholm (or any other Regulated Market, as applicable) and the CSD (as amended from time to time) preventing trading in the Notes in close connection to the redemption of the Notes).
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11.8Designation of Unrestricted Subsidiaries
11.8.1(a) The Issuer may designate, after the First Issue Date, any Subsidiary of the Issuer (including any newly created or acquired Subsidiary) as an "Unrestricted Subsidiary" (a "Designation") only if, at the time of or after giving effect to such Designation:
(a)no Default or Event of Default shall have occurred and be continuing;
(b)a Group Company could incur US$1.00 of Financial Indebtedness pursuant to Condition 11.3(a); and
(c)the aggregate Investments (other than Permitted Investments) by the Group in all Unrestricted Subsidiaries shall not exceed the greater of (x) $950,000,000 or (y) 10 per cent. of Total Assets at any time outstanding.
11.8.2No Group Company will at any time:
(a)provide credit support for, subject any of its property or assets (other than Liens over the Capital Stock, Financial Indebtedness and other securities of any Unrestricted Subsidiary securing Financial Indebtedness of that Unrestricted Subsidiary and its Subsidiaries) to a Lien for the satisfaction of, or guarantee, any Financial Indebtedness of any Unrestricted Subsidiary (including any undertaking, agreement or instrument evidencing such Financial Indebtedness);
(b)be directly or indirectly liable for any Financial Indebtedness of any Unrestricted Subsidiary;
(c)be directly or indirectly liable for any Financial Indebtedness which provides that the holder thereof may (upon notice, lapse of time or both) declare a default thereon or cause the payment thereof to be accelerated or payable prior to its final scheduled maturity upon the occurrence of a default with respect to any Financial Indebtedness of any Unrestricted Subsidiary; or
(d)make any Investment (other than a Permitted Investment) in any Unrestricted Subsidiary to the extent such Investment, together with the aggregate Investments in all Unrestricted Subsidiaries then outstanding, exceeds the amount set out in Condition 11.8.1(c).
11.8.3The Issuer may redesignate an Unrestricted Subsidiary as a Restricted Subsidiary (a "Redesignation") only if all Liens and Financial Indebtedness of such Unrestricted Subsidiary outstanding immediately following such Redesignation if incurred at such time would have been permitted to be incurred for all purposes of these Terms and Conditions.
11.8.4For purposes of this Condition 11.8:
(a)"Investments" shall equal the portion (proportionate to the Issuer's direct or indirect equity interest in a Restricted Subsidiary to be designated as an Unrestricted Subsidiary) of the Fair Market Value of the net assets of such Restricted Subsidiary at the time of the Designation of such Subsidiary as an Unrestricted Subsidiary;
(b)the aggregate Investments (other than Permitted Investments) by the Issuer and its Restricted Subsidiaries in all Unrestricted Subsidiaries shall be reduced upon the Redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary by an amount equal to the lesser of (x) the Issuer's direct or indirect "Investment" in such
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Unrestricted Subsidiary at the time of such Redesignation, and (y) the portion (proportionate to the Issuer's direct or indirect equity interest in such Subsidiary) of the Fair Market Value of the net assets of such Subsidiary at the time of such Redesignation;
(c)any property transferred to or from an Unrestricted Subsidiary shall be valued at its Fair Market Value at the time of such transfer, as determined in good faith by the Issuer; and
(d)the amount of any Investment outstanding at any time shall be reduced by any dividend, distribution, interest payment, return of capital, repayment or other amount received by the Group in respect of such Investment.
11.8.5The Designation of a Subsidiary of the Issuer as an Unrestricted Subsidiary shall be deemed to include the Designation of all Subsidiaries of such Subsidiary as Unrestricted Subsidiaries.
11.8.6All Designations and Redesignations shall be evidenced by an officer's certificate of the Issuer, delivered to the Trustee certifying compliance with this Condition 11.8.
11.9Financial Calculations for Limited Condition Transactions
11.9.1In connection with any action being taken in connection with a Limited Condition Transaction, for purposes of determining compliance with any provision of these Terms and Conditions which requires that no Default or Event of Default, as applicable, has occurred, is continuing or would result from any such action, as applicable, such condition shall, at the option of the Issuer, be deemed satisfied, so long as no Default or Event of Default, as applicable, exists on the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into. For the avoidance of doubt, if the Issuer has exercised its option under the first sentence of this paragraph, and any Default or Event of Default occurs following the date such definitive agreement for a Limited Condition Transaction is entered into and prior to the consummation of such Limited Condition Transaction, any such Default or Event of Default shall be deemed to not have occurred or be continuing for purposes of determining whether any action being taken in connection with such Limited Condition Transaction is permitted hereunder.
11.9.2In connection with any action being taken in connection with a Limited Condition Transaction for purposes of:
(a)determining compliance with any provision of these Terms and Conditions which requires the calculation of any financial ratio or test, including the Net Leverage Ratio; or
(b)testing baskets set forth in these Terms and Conditions (including baskets measured as a percentage of Total Assets);
in each case, at the option of the Issuer (the Issuer's election to exercise such option in connection with any Limited Condition Transaction, an "LCT Election"), the date of determination of whether any such action is permitted hereunder, shall be deemed to be the date the definitive agreement (or other relevant definitive documentation) for such Limited Condition Transaction is entered into (the "LCT Test Date"); provided, however, that the Issuer shall be entitled to subsequently elect, in its sole discretion, the date of consummation of such Limited Condition Transaction instead of the LCT Test Date as the applicable date of determination, and if, after giving pro forma effect to the Limited Condition Transaction
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and the other transactions to be entered into in connection therewith (including any incurrence of Financial Indebtedness and the use of proceeds thereof), as are appropriate and consistent with the pro forma adjustment provisions set forth in the definition of "Consolidated EBITDA" and "Net Leverage Ratio", the Issuer or any Restricted Subsidiary could have taken such action on the relevant LCT Test Date in compliance with such ratio, test or basket, such ratio, test or basket shall be deemed to have been complied with.
11.9.3If the Issuer has made an LCT Election and any of the ratios, tests or baskets for which compliance was determined or tested as of the LCT Test Date are exceeded as a result of fluctuations in any such ratio, test or basket, including due to fluctuations in Consolidated EBITDA or Total Assets, of the Issuer and its Restricted Subsidiaries at or prior to the consummation of the relevant transaction or action, such baskets, tests or ratios will not be deemed to have been exceeded as a result of such fluctuations. If the Issuer has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio, test or basket availability under these Terms and Conditions (including with respect to the incurrence of Financial Indebtedness or Liens, or the making of Asset Dispositions, acquisitions, mergers, the conveyance, lease or other transfer of all or substantially all of the assets of the Issuer or any Restricted Subsidiary or the Designation of an Unrestricted Subsidiary) on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio, test or basket shall be calculated on a pro forma basis assuming such Limited Condition Transaction and other transactions in connection therewith (including any incurrence of Financial Indebtedness and the use of proceeds thereof) have been consummated.
11.10Suspension of certain covenants
If on any date following the First Issue Date, the Issuer is assigned an external credit rating of at least BBB- (or equivalent) by two Rating Agencies and no Event of Default is continuing then the Issuer shall notify the Trustee in writing of these events and beginning on that date and until such time as the Issuer ceases to have an external credit rating of at least BBB- (or equivalent) by either such Rating Agency, Conditions 11.3 (Financial Indebtedness), 11.5 (Disposal of assets), and paragraph (c) of Condition 11.6 (Merger) shall not apply. Any action taken by a Group Company during any such covenant suspension that would otherwise give rise to a breach of the aforementioned Conditions upon such covenant suspension ceasing to be in effect shall be deemed not to be a breach of these Terms and Conditions.
12.ACCELERATION OF THE NOTES
12.1Subject to Condition 12.2, the Trustee at its discretion may, and shall following an instruction in writing from a Noteholder (or Noteholders) representing at least 25 per cent. of the Adjusted Nominal Amount (such instruction may only be validly made by a person who is a Noteholder on the Business Day immediately following the day on which the instruction is received by the Trustee), provided the Noteholder or Noteholders (as applicable) have offered an indemnity and/or security and/or pre-funding satisfactory to the Trustee (i) by notice to the Issuer, declare all, but not some only, of the outstanding Notes immediately due and repayable at their Total Nominal Amount together with any other amounts payable under the Trust Deed (including, without limitation, pursuant to Condition 12.5) immediately or at such later date as the Trustee determines, and (ii) exercise any or all of its rights, remedies, powers and discretions under the Finance Documents if any of the following events occurs and is continuing:
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(a)the Issuer does not pay on the due date any principal of, or (if any) premium on any Note when due (at maturity, upon redemption or otherwise);
(b)the Issuer does not pay on the due date any interest payable in respect of the Notes and such failure is not remedied within 30 days from the relevant Interest Payment Date;
(c)the Issuer does not pay on the due date any principal and interest on the Notes required to be purchased pursuant to Condition 9.5 or 9.6;
(d)the Issuer does not comply with the provisions of Condition 11.6;
(e)the Issuer does not comply with any terms or conditions of the Finance Documents to which it is a party (other than those terms referred to in paragraphs (a) through (d) above), unless the non-compliance (i) is capable of remedy; and (ii) is remedied within 60 days of the earlier of notice to the Issuer by the Trustee or Noteholders representing at least 25 per cent. of the Adjusted Nominal Amount;
(f)the occurrence of a Cross Payment Default or a Cross Acceleration, unless the aggregate amount of Financial Indebtedness which is the subject of any Cross Payment Default or Cross Acceleration, as applicable, is less than $100,000,000 (or its equivalent in any other currency or currencies), without double counting;
(g)a Group Company fails to pay final judgments entered by a court or courts of competent jurisdiction aggregating in excess of $100,000,000 (or its equivalent in any other currency or currencies) (exclusive of any amounts for which a solvent insurance company has acknowledged liability), which judgments shall not have been discharged or waived and there shall have been a period of 60 consecutive days during which a stay of enforcement of such judgment or order, by reason of an appeal, waiver or otherwise, shall not have been in effect;
(h)(i) a Material Company is unable or admits inability to pay its debts as they fall due, suspends making payments on any of its debts or, by reason of actual or anticipated financial difficulties, commences negotiations with one or more of its creditors with a view to rescheduling its indebtedness (including company reorganisation under the Swedish Company Reorganisation Act (lag (1996:764) om företagsrekonstruktion) (or its equivalent in any other jurisdiction)); (ii) the value of the assets of any Material Company is less than its liabilities (taking into account contingent and prospective liabilities); or (iii) a moratorium is declared in respect of any indebtedness of any Material Company; or
(i)any corporate action, legal proceedings or other procedure or step is taken in relation to:
(i)the winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise, other than a solvent reorganisation in which the relevant Material Company is the surviving entity) of any Material Company;
(ii)a general assignment, arrangement or composition with or for the benefit of the creditors of any Material Company;
(iii)the appointment of a liquidator (other than in respect of a solvent liquidation of a Group Company other than the Issuer), receiver, administrative receiver, administrator, compulsory manager or other similar officer in respect of any Material Company or any of its assets; or
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(iv)enforcement of any Lien over any assets of any Material Company,
or any analogous procedure or step is taken in any jurisdiction. This Condition (i) shall not apply to any winding-up petition which is frivolous or vexatious and is discharged, stayed or dismissed within 30 days of commencement.
12.2The Trustee may not accelerate the Notes in accordance with Condition 12.1 by reference to a specific Event of Default if it is no longer continuing or if it has been decided, on a Noteholders Meeting or by way of a Written Procedure, to waive such Event of Default temporarily or permanently.
12.3The Trustee may, or the Noteholders of at least 50 per cent. of the Adjusted Nominal Amount may on demand in writing to the Trustee, waive all past or existing Events of Default (other than with respect to non-payment) and may rescind any such acceleration with respect to the Notes and its consequences if rescission would not conflict with any judgment or decree of a court of competent jurisdiction and if all amounts then due with respect to the Notes are paid (other than amounts due solely because of such acceleration) and all other defaults with respect to the Notes are cured.
12.4The Trustee shall notify the Noteholders of an Event of Default within five Business Days of the date on which the Trustee receives actual knowledge by way of written notice that an Event of Default has occurred and is continuing. The Trustee shall, within 20 Business Days of the date on which the Trustee receives actual knowledge by way of written notice that an Event of Default has occurred and is continuing seek instructions from the Noteholders in accordance with Condition 14 (Decisions by Noteholders). The Trustee shall always be entitled to take the time necessary to consider whether an occurred event constitutes an Event of Default.
12.5If the Noteholders instruct the Trustee to accelerate the Notes in accordance with Condition 12.1, the Trustee shall promptly declare the Notes due and payable and take such actions as the Noteholders deem to be necessary or desirable to enforce the rights of the Noteholders under the Finance Documents, unless the relevant Event of Default is no longer continuing.
12.6If the right to accelerate the Notes is based upon a decision of a court of law or a government authority, it is not necessary that the decision has become enforceable under law or that the period of appeal has expired in order for cause of acceleration to be deemed to exist.
12.7In the event of an acceleration of the Notes in accordance with this Condition 12, the Issuer shall redeem all Notes at an amount per Note equal to 100 per cent. of the Nominal Amount, together with accrued but unpaid Interest.
13.DISTRIBUTION OF PROCEEDS
13.1All payments by the Issuer relating to the Notes and the Finance Documents following an acceleration of the Notes in accordance with Condition 12 (Acceleration of the Notes) shall be distributed in the following order of priority, in accordance with the instructions of the Trustee:
(a)first, in or towards payment pro rata of (i) all unpaid fees, costs, expenses and indemnities payable by the Issuer to the Trustee in accordance with the Trust Deed (other than any indemnity given for liability against the Noteholders), (ii) other
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(b) costs, expenses and indemnities relating to the acceleration of the Notes or the protection of the Noteholders' rights as may have been incurred by the Trustee, (iii) any costs incurred by the Trustee for external experts that have not been reimbursed by the Issuer in accordance with Condition 19.2.5, and (iv) any costs and expenses incurred by the Trustee in relation to a Noteholders' Meeting or a Written Procedure that have not been reimbursed by the Issuer in accordance with Condition 14.13;
(c)secondly, in or towards payment pro rata of accrued but unpaid Interest under the Notes (Interest due on an earlier Interest Payment Date to be paid before any Interest due on a later Interest Payment Date);
(d)thirdly, in or towards payment pro rata of any unpaid principal under the Notes; and
(e)fourthly, in or towards payment pro rata of any other costs or outstanding amounts unpaid under the Finance Documents.
Any excess funds after the application of proceeds in accordance with paragraphs (a) to (d) above shall be paid to the Issuer.
13.2Funds that the Trustee receives (directly or indirectly) in connection with the acceleration of the Notes shall be held on trust by the Trustee on the terms set out in the Trust Deed. The Trustee shall arrange for payments of such funds in accordance with this Condition 13 as soon as reasonably practicable.
13.3If the Issuer or the Trustee shall make any payment under this Condition 13, the Issuer or (in the case of payments by the Trustee) the Trustee, as applicable, shall notify the Noteholders of any such payment at least 15 Business Days before the payment is made. Such notice shall specify the Redemption Date and also the Record Date on which a person shall be registered as a Noteholder to receive the amounts due on such Redemption Date. Notwithstanding the foregoing, for any Interest due but unpaid the Record Date specified in Condition 7.1 shall apply.
14.DECISIONS BY NOTEHOLDERS
14.1A request by the Trustee for a decision by the Noteholders on a matter relating to the Finance Documents shall (at the option of the Trustee) be dealt with at a Noteholders' Meeting or by way of a Written Procedure.
14.2Any request from the Issuer or a Noteholder (or Noteholders) representing at least 10 per cent. of the Adjusted Nominal Amount (such request may only be validly made by a person who is a Noteholder on the Business Day immediately following the day on which the request is received by the Trustee) for a decision by the Noteholders on a matter relating to the Finance Documents shall be directed to the Trustee and dealt with at a Noteholders' Meeting or by way a Written Procedure, as determined by the Trustee. The person requesting the decision may suggest the form for decision making, but, if it is in the Trustee's opinion more appropriate that a matter is dealt with at a Noteholders' Meeting than by way of a Written Procedure, it shall be dealt with at a Noteholders' Meeting.
14.3The Trustee may refrain from convening a Noteholders' Meeting or instigating a Written Procedure if (i) the suggested decision must be approved by any person in addition to the Noteholders and such person has informed the Trustee that an approval will not be given, or (ii) the suggested decision is not in accordance with applicable laws.
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14.4Only a person who is, or who has been provided with a power of attorney pursuant to Condition 6 (Right to act on behalf of a Noteholder) from a person who is, registered as a Noteholder:
(a)on the Record Date prior to the date of the Noteholders' Meeting, in respect of a Noteholders' Meeting, or
(b)on the Business Day specified in the communication pursuant to Condition 16.2, in respect of a Written Procedure,
may exercise voting rights as a Noteholder at such Noteholders' Meeting or in such Written Procedure, provided that the relevant Notes are included in the Adjusted Nominal Amount.
14.5The following matters shall require the consent of Noteholders representing at least 66⅔ per cent. of the Adjusted Nominal Amount for which Noteholders are voting at a Noteholders' Meeting or for which Noteholders reply in a Written Procedure in accordance with the instructions given pursuant to Condition 16.2:
(a)a change to the terms of any of Condition 2.1, and Conditions 2.5 to 2.7;
(b)a reduction of any premium payable upon the redemption or repurchase of any Note pursuant to Condition 9 (Redemption and repurchase of the Notes);
(c)a change to the Interest Rate (other than as a result of an application of Condition 18 (Replacement of Base Rate)) or the Nominal Amount;
(d)a change to the terms for the distribution of proceeds set out in Condition 13 (Distribution of proceeds);
(e)a change to the terms dealing with the requirements for Noteholders' consent set out in this Condition 14;
(f)an extension of the tenor of the Notes or any delay of the due date for payment of any principal or interest on the Notes;
(g)a mandatory exchange of the Notes for other securities; and
(h)early redemption of the Notes, other than upon an acceleration of the Notes pursuant to Condition 12 (Acceleration of the Notes) or as otherwise permitted or required by these Terms and Conditions.
14.6Any matter not covered by Condition 14.5 shall require the consent of Noteholders representing more than 50 per cent. of the Adjusted Nominal Amount for which Noteholders are voting at a Noteholders' Meeting or for which Noteholders reply in a Written Procedure in accordance with the instructions given pursuant to Condition 16.2. This includes, but is not limited to, any amendment to, or waiver of, the terms of any Finance Document that does not require a higher majority (other than an amendment permitted pursuant to Condition 17.1(a), (b) or (c) or an acceleration of the Notes).
14.7Quorum at a Noteholders' Meeting or in respect of a Written Procedure only exists if a Noteholder (or Noteholders) representing at least 50 per cent. of the Adjusted Nominal Amount in case of a matter pursuant to Condition 14.5, and otherwise 20 per cent. of the Adjusted Nominal Amount:
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(a)if at a Noteholders' Meeting, attend the meeting in person or by telephone or video conference (or appear through duly authorised representatives); or
(b)if in respect of a Written Procedure, reply to the request.
If a quorum exists for some but not all of the matters to be dealt with at a Noteholders' Meeting or by a Written Procedure, decisions may be taken in the matters for which a quorum exists.
14.8If a quorum does not exist at a Noteholders' Meeting or in respect of a Written Procedure, the Trustee or the Issuer shall convene a second Noteholders' Meeting (in accordance with Condition 15.1) or initiate a second Written Procedure (in accordance with Condition 16.1), as the case may be, provided that the person(s) who initiated the procedure for Noteholders' consent has confirmed that the relevant proposal is not withdrawn. For the purposes of a second Noteholders' Meeting or second Written Procedure pursuant to this Condition 14.8, the date of request of the second Noteholders' Meeting pursuant to Condition 15.1 or second Written Procedure pursuant to Condition 16.1, as the case may be, shall be deemed to be the relevant date when the quorum did not exist. The quorum requirement in Condition 14.7 shall not apply to such second Noteholders' Meeting or Written Procedure.
14.9Any decision which extends or increases the obligations of the Issuer or the Trustee, or limits, reduces or extinguishes the rights or benefits of the Issuer or the Trustee, under the Finance Documents shall be subject to the Issuer's or the Trustee's consent, as applicable.
14.10A Noteholder holding more than one Note need not use all its votes or cast all the votes to which it is entitled in the same way and may in its discretion use or cast some of its votes only.
14.11The Issuer may not, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Noteholder for or as inducement to any consent under these Terms and Conditions, unless such consideration is offered to all Noteholders that consent at the relevant Noteholders' Meeting or in a Written Procedure within the time period stipulated for the consideration to be payable or the time period for replies in the Written Procedure, as the case may be.
14.12A matter decided at a duly convened and held Noteholders' Meeting or by way of Written Procedure is binding on all Noteholders, irrespective of them being present or represented at the Noteholders' Meeting or responding in the Written Procedure. The Noteholders that have not adopted or voted for a decision shall not be liable for any damages that this may cause other Noteholders and vice versa.
14.13All costs and expenses incurred by the Issuer or the Trustee for the purpose of convening a Noteholders' Meeting or for the purpose of carrying out a Written Procedure, including reasonable fees to the Trustee, shall be paid by the Issuer.
14.14If a decision is to be taken by the Noteholders on a matter relating to the Finance Documents, the Issuer shall promptly at the request of the Trustee provide the Trustee with a certificate specifying the number of Notes owned by Group Companies or (to the knowledge of the Issuer) other Affiliates of the Issuer or any other person owning any Notes that has undertaken towards a Group Company or its Affiliate to exercise its voting rights in respect of such Notes in accordance with the instructions given by a Group Company or an Affiliate thereof, in each case, irrespective of whether such person is directly registered as owner of such Notes. The Trustee shall not be responsible for the accuracy of such certificate or otherwise be responsible for determining whether a Note is owned by a Group Company or
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any other Affiliate of the Issuer or any other person owning any Notes that has undertaken towards a Group Company or its Affiliate to exercise its voting rights in respect of such Notes in accordance with the instructions given by a Group Company or an Affiliate thereof.
14.15Information about decisions taken at a Noteholders' Meeting or by way of a Written Procedure shall promptly be sent by notice to the Noteholders and published on the website of the Issuer, provided that a failure to do so shall not invalidate any decision made or voting result achieved. The minutes from the relevant Noteholders' Meeting or Written Procedure shall at the request of a Noteholder be sent to it by the Issuer or the Trustee, as applicable.
15.NOTEHOLDERS' MEETING
15.1The Trustee shall convene a Noteholders' Meeting as soon as practicable and in any event no later than 10 Business Days after receipt of a valid request from the Issuer or the Noteholder(s) (or such later date as may be necessary for technical or administrative reasons) by sending a notice thereof to each person who is registered as a Noteholder on a date selected by the Trustee which falls no more than five Business Days prior to the date on which the notice is sent.
15.2Should the Issuer wish to replace the Trustee, it may convene a Noteholders' Meeting in accordance with Condition 15.1 with a copy to the Trustee. After a request from the Noteholders pursuant to Condition 19.4.3, the Issuer shall no later than five Business Days after receipt of such request (or such later date as may be necessary for technical or administrative reasons) convene a Noteholders' Meeting in accordance with Condition 15.1.
15.3The notice pursuant to Condition 15.1 shall include (i) time for the meeting, (ii) place for the meeting, (iii) agenda for the meeting (including each request for a decision by the Noteholders), and (iv) a form of power of attorney. Only matters that have been included in the notice may be resolved upon at the Noteholders' Meeting. Should prior notification by the Noteholders be required in order to attend the Noteholders' Meeting, such requirement shall be included in the notice.
15.4The Noteholders' Meeting shall be held no earlier than 10 Business Days and no later than 30 Business Days after the effective date of the notice.
15.5Without amending or varying these Terms and Conditions, the Trustee may prescribe such further regulations regarding the convening and holding of a Noteholders' Meeting as the Trustee may deem appropriate. Such regulations may include a possibility for Noteholders to vote without attending the meeting in person.
16.WRITTEN PROCEDURE
16.1The Trustee shall instigate a Written Procedure as soon as practicable and in any event no later than 10 Business Days after receipt of a valid request from the Issuer or the Noteholder(s) (or such later date as may be necessary for technical or administrative reasons) by sending a communication to each person who is registered as a Noteholder on a date selected by the Trustee which falls no more than five Business Days prior to the date on which the communication is sent.
16.2Should the Issuer wish to replace the Trustee, it may instigate a Written Procedure in accordance with Condition 16.1 with a copy to the Trustee.
16.3A communication pursuant to Condition 16.1 shall include (i) each request for a decision by the Noteholders, (ii) a description of the reasons for each request, (iii) a specification of the
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Business Day on which a person must be registered as a Noteholder in order to be entitled to exercise voting rights, (iv) instructions and directions on where to receive a form for replying to the request (such form to include an option to vote yes or no for each request) as well as a form of power of attorney, and (v) the stipulated time period within which the Noteholder must reply to the request (such time period to last at least 10 Business Days and not longer than 30 Business Days from the effective date of the communication pursuant to Condition 16.1). If the voting is to be made electronically, instructions for such voting shall be included in the communication.
16.4When consents from Noteholders representing the requisite majority of the total Adjusted Nominal Amount pursuant to Conditions 14.5 and 14.6 have been received in a Written Procedure, the relevant decision shall be deemed to be adopted pursuant to Condition 14.5 or 14.6, as the case may be, even if the time period for replies in the Written Procedure has not yet expired.
17.AMENDMENTS AND WAIVERS
17.1The Issuer and the Trustee (acting on behalf of the Noteholders) may agree to amend the Finance Documents or waive any provision in a Finance Document, provided that:
(a)such amendment or waiver is not detrimental to the interest of the Noteholders as a group, or is made solely for the purpose of rectifying obvious errors and mistakes;
(b)such amendment or waiver is made pursuant to the terms of Condition 18 (Replacement of Base Rate);
(c)such amendment or waiver is required by applicable law, a court ruling or a decision by a relevant authority; or
(d)such amendment or waiver has been duly approved by the Noteholders in accordance with Condition 14 (Decisions by Noteholders).
17.2The consent of the Noteholders is not necessary to approve the particular form of any amendment or waiver to the Finance Documents. It is sufficient if such consent approves the substance of the amendment or waiver.
17.3The Trustee shall promptly notify the Noteholders of any amendments or waivers made in accordance with Condition 17.1, setting out the date from which the amendment or waiver will be effective, and ensure that any amendments to the Finance Documents are published in the manner stipulated in Condition 10.3 (Publication of Finance Documents). The Issuer shall ensure that any amendments to the Finance Documents are duly registered with the CSD and each other relevant organisation or authority.
17.4An amendment to the Finance Documents shall take effect on the date determined by the Noteholders Meeting, in the Written Procedure or by the Trustee, as the case may be.
18.REPLACEMENT OF BASE RATE
18.1General
18.1.1Any determination or election to be made by an Independent Adviser, the Issuer or the Noteholders in accordance with the provisions of this Condition 18 shall at all times be made by such Independent Adviser, the Issuer or the Noteholders (as applicable) acting in good faith, in a commercially reasonable manner and by reference to relevant market data.
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18.1.2If a Base Rate Event has occurred, this Condition 18 shall take precedent over the fallbacks set out in paragraph (b) to (d) of the definition of STIBOR.
18.2Definitions
In this Condition 18:
"Adjustment Spread" means a spread (which may be positive, negative or zero) or a formula or methodology for calculating a spread, or a combination thereof determined in accordance with Condition 18.3.3, to be applied to a Successor Base Rate or an Alternative Base Rate, the objective of which, in each case, shall be to reduce or eliminate, to the fullest extent reasonably practicable, any transfer of economic value from one person to another as a result of a replacement of the Base Rate.
"Alternative Base Rate" means the reference rate that has replaced the Base Rate in customary market usage in the relevant debt capital markets for the purposes of determining rates of interest in respect of notes denominated in SEK.
"Base Rate Amendments" has the meaning set forth in Condition 18.3.5.
"Base Rate Event" means that:
(a)the Base Rate has (i) been permanently or indefinitely discontinued, (ii) ceased to exist or (iii) ceased to be published for at least five consecutive Business Days as a result of the Base Rate ceasing to be calculated or administered;
(b)the Base Rate Administrator ceases to publish the applicable Base Rate permanently or indefinitely and, at that time, no successor administrator has been appointed to continue to publish the Base Rate;
(c)the supervisor of the Base Rate Administrator (i) has made a public statement stating that the Base Rate is no longer representative of the underlying market or (ii) is recommending the usage of a Successor Base Rate for the applicable Base Rate;
(d)the Base Rate Administrator or its supervisor announces that (i) the Base Rate methodology has changed materially after the First Issue Date or (ii) the Base Rate may no longer be used, either generally or in respect of the Notes; or
(e)it has become unlawful for the Issuer or the Issuing Agent to calculate any payments due to be made to any Noteholder using the applicable Base Rate,
provided that in the case of paragraph (c), the Base Rate Event shall occur on the date of the cession of publication of the relevant Base Rate or the discontinuation of the relevant Base Rate, as the case may be, and not the date of the relevant public statement.
"Base Rate Event Announcement" means a public statement by the Base Rate Administrator or the supervisor of the Base Rate Administrator that any event or circumstance specified in paragraphs (a) to (e) of the definition of Base Rate Event will occur.
"Independent Adviser" means an independent financial institution or adviser of repute in the debt capital markets where the Base Rate is commonly used.
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"Relevant Nominating Body" means any applicable central bank, regulator or other supervisory authority or a group of them, or any working group or committee of any of them or the Financial Stability Council (Finansiella stabilitetsrådet) or any part thereof.
"Successor Base Rate" means a screen or benchmark rate which is formally recommended as a successor to or replacement of the Base Rate by a Relevant Nominating Body.
18.3Determination of Base Rate, Adjustment Spread and Base Rate Amendments
18.3.1Without prejudice to Condition 18.3.2, upon a Base Rate Event Announcement, the Issuer may (acting in its sole discretion), at any time before the occurrence of the relevant Base Rate Event at the Issuer’s expense appoint an Independent Adviser to determine a Successor Base Rate or, if there is no Successor Base Rate, an Alternative Base Rate and, in each case, the Adjustment Spread and any Base Rate Amendments for purposes of determining and calculating the applicable Base Rate. For the avoidance of doubt, the Issuer will not be obliged to take any such actions until required to do so pursuant to Condition 18.3.2.
18.3.2If (i) a Base Rate Event has occurred or (ii) a Base Rate Event Announcement has been made and the announced Base Rate Event will occur within six months, the Issuer shall use all commercially reasonable endeavours to, as soon as reasonably practicable and at the Issuer’s expense, appoint an Independent Adviser to determine, as soon as commercially reasonable, a Successor Base Rate or (if there is no Successor Base Rate) an Alternative Base Rate and, in each case, the Adjustment Spread and any Base Rate Amendments for purposes of determining and calculating the applicable Base Rate.
18.3.3If the Issuer fails to appoint an Independent Adviser in accordance with Condition 18.3.2, the Noteholders shall, if so decided at a Noteholders’ Meeting or by way of Written Procedure, be entitled to appoint an Independent Adviser (at the Issuer’s expense) for the purposes set forth in Condition 18.3.2.
18.3.4The Adjustment Spread determined by the Independent Adviser in accordance with Condition 18.3.1 or 18.3.2, shall be the Adjustment Spread which:
(a)is formally recommended in relation to the replacement of the Base Rate by any Relevant Nominating Body; or
(b)if paragraph (a) above does not apply, the Independent Adviser determines is customarily applied to the relevant Successor Base Rate or Alternative Base Rate (as applicable), in comparable debt capital markets transactions.
18.3.5The Independent Adviser shall also determine any technical, administrative or operational changes required to ensure the proper operation of a Successor Base Rate or an Alternative Base Rate or to reflect the adoption of such Successor Base Rate or Alternative Base Rate in a manner substantially consistent with market practice ("Base Rate Amendments").
18.3.6Provided that a Successor Base Rate or (if there is no Successor Base Rate) an Alternative Base Rate and, in each case, the applicable Adjustment Spread and any Base Rate Amendments have been determined no later than 10 Business Days prior to the relevant Quotation Day in relation to the next succeeding Interest Period, they shall become effective with effect from and including the commencement of the next succeeding Interest Period.
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18.4Interim measures
18.4.1If a Base Rate Event has occurred but no Successor Base Rate or Alternative Base Rate and Adjustment Spread have been determined at least 10 Business Days prior to the relevant Quotation Day in relation to the next succeeding Interest Period, the Interest Rate applicable to the next succeeding Interest Period shall be:
(a)if the previous Base Rate is available and can be used in accordance with applicable law and regulation, determined pursuant to the terms that would apply to the determination of the Base Rate as if no Base Rate Event had occurred; or
(b)if the previous Base Rate is no longer available or cannot be used in accordance with applicable law or regulation, equal to the Interest Rate determined for the immediately preceding Interest Period.
18.4.2For the avoidance of doubt, Condition 18.4.1 shall apply only to the relevant next succeeding Interest Period and any subsequent Interest Periods are subject to the subsequent operation of, and to adjustments as provided in, this Condition 18.
18.5Notices etc.
The Issuer shall promptly following the determination by the Independent Adviser of any Successor Base Rate, Alternative Base Rate, Adjustment Spread and any Base Rate Amendments give notice thereof to the Trustee, the Issuing Agent and the Noteholders in accordance with Condition 24 (Notices and press releases) and the CSD.
18.6Variation upon replacement of Base Rate
18.6.1No later than giving the Trustee notice pursuant to Condition 18.5, the Issuer shall deliver to the Trustee a certificate signed by the Independent Adviser and the CEO, CFO or any other duly authorised signatory of the Issuer confirming the relevant Successor Base Rate or Alternative Base Rate, the Adjustment Spread and any Base Rate Amendments, in each case as determined in accordance with the provisions of this Condition 18. The Successor Base Rate or Alternative Base Rate, the Adjustment Spread and any Base Rate Amendments (as applicable) specified in such certificate will, in the absence of manifest error or bad faith in any determination, be binding on the Issuer, the Trustee, the Issuing Agent and the Noteholders.
18.6.2Subject to receipt by the Trustee of the certificate referred to in Condition 18.6.1, the Issuer and the Trustee shall, at the request and expense of the Issuer, without the requirement for any consent or approval of the Noteholders, without undue delay effect such amendments to the Finance Documents as may be required by the Issuer in order to give effect to this Condition 18.
18.6.3The Trustee and the Issuing Agent shall always be entitled to consult with external experts prior to making any amendments which are to be effected pursuant to this Condition 18. Neither the Trustee nor the Issuing Agent shall be obliged to concur in making such amendments if in the reasonable opinion of the Trustee or the Issuing Agent (as applicable), doing so would impose more onerous obligations upon it or expose it to any additional duties, responsibilities or liabilities or reduce or amend the protective provisions afforded to the Trustee or the Issuing Agent in the Finance Documents.
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18.7Limitation of liability for the Independent Adviser
Any Independent Adviser appointed pursuant to Condition 18.3 shall not be liable whatsoever for damage or loss caused by any determination, action taken or omitted by it under or in connection with any Finance Document, unless directly caused by its gross negligence or wilful misconduct. The Independent Adviser shall never be responsible for indirect or consequential loss.
19.APPOINTMENT AND REPLACEMENT OF THE TRUSTEE
19.1Appointment of the Trustee
19.1.1By subscribing for Notes, each initial Noteholder appoints the Trustee to act pursuant to the Trust Deed as trustee in all matters relating to the Notes and the Finance Documents, and authorises the Trustee to act on its behalf (without first having to obtain its consent, unless such consent is specifically required by these Terms and Conditions or the Trust Deed) in any legal or arbitration proceedings relating to the Notes held by such Noteholder. By acquiring Notes, each additional Noteholder confirms such appointment and authorisation for the Trustee to act on its behalf.
19.1.2The Trustee shall not be bound to take any action in relation to the Trust Deed and these Terms and Conditions unless directed to do so in accordance with Conditions 14, 15 and/or 16, as applicable, and it has been indemnified and/or secured and/or prefunded to its satisfaction.
19.1.3The Issuer shall promptly upon request provide the Trustee with any documents and other assistance (in form and substance satisfactory to the Trustee), that the Trustee deems necessary for the purpose of exercising its rights and/or carrying out its duties under the Finance Documents.
19.1.4The Trustee is entitled to fees for its work and to be indemnified for costs, losses and liabilities on the terms set out in the Finance Documents and the Trustee's obligations as Trustee under the Finance Documents are conditioned upon the due payment of such fees and indemnifications.
19.1.5The Trustee may act as Trustee or trustee for several issues of securities issued by or relating to the Issuer and other Group Companies notwithstanding potential conflicts of interest.
19.2Duties of the Trustee
19.2.1The Trustee shall represent the Noteholders in accordance with the Finance Documents. The Trustee is not responsible for the execution or enforceability of the Finance Documents.
19.2.2When acting in accordance with the Finance Documents, the Trustee is always acting with binding effect on behalf of the Noteholders. The Trustee shall carry out its duties under the Finance Documents with the degree of care and diligence required of it as a trustee having regard to the provisions of the Trust Deed and the other Finance Documents.
19.2.3The Trustee is entitled to delegate its duties to other professional parties, but the Trustee shall remain liable for the actions of such parties under the Finance Documents.
19.2.4The Trustee shall treat all Noteholders equally and, when acting pursuant to the Finance Documents, act with regard only to the interests of the Noteholders and shall not be required to have
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regard to the interests or to act upon or comply with any direction or request of any other person, other than as explicitly stated in the Finance Documents.
19.2.5The Trustee is entitled to engage external experts when carrying out its duties under the Finance Documents. The Issuer shall on demand by the Trustee pay all costs for external experts engaged after the occurrence of an Event of Default, or for the purpose of investigating or considering (i) an event or circumstance which the Trustee reasonably believes is or may lead to an Event of Default or (ii) a matter relating to the Issuer which the Trustee reasonably believes may be detrimental to the interests of the Noteholders under the Finance Documents. Any compensation for damages or other recoveries received by the Trustee from external experts engaged by it for the purpose of carrying out its duties under the Finance Documents shall be distributed in accordance with Condition 13 (Distribution of proceeds).
19.2.6The Trustee shall, as applicable, enter into agreements with the CSD, and comply with such agreements and the CSD Regulations applicable to the Trustee, as may be necessary in order for the Trustee to carry out its duties under the Finance Documents.
19.2.7Notwithstanding any other provision of the Finance Documents to the contrary, the Trustee is not obliged to do or omit to do anything if it would or might in its reasonable opinion constitute a breach of any law or regulation.
19.2.8If in the Trustee's reasonable opinion the cost, loss or liability which it may incur (including reasonable fees to the Trustee) in complying with instructions of the Noteholders, or taking any action at its own initiative, will not be covered by the Issuer, the Trustee may refrain from acting in accordance with such instructions, or taking such action, until it has received such funding or indemnities (or an adequate Lien has been provided therefor) as it may reasonably require.
19.2.9The Trustee shall give a notice to the Noteholders (i) before it ceases to perform its obligations under the Finance Documents by reason of the non-payment by the Issuer of any fee or indemnity due to the Trustee under the Finance Documents or (ii) if it refrains from acting for any reason described in Condition 19.2.8.
19.3Limited liability for the Trustee
19.3.1The Trustee will not be liable to the Noteholders for damage or loss caused by any action taken or omitted by it under or in connection with any Finance Document, unless directly caused by its negligence, wilful default or fraud. The Trustee shall never be responsible for indirect or consequential loss.
19.3.2The Trustee shall not be considered to have acted negligently if it has acted in accordance with advice from or opinions of reputable external experts engaged by the Trustee or if the Trustee has acted with reasonable care in a situation when the Trustee considers that it is detrimental to the interests of the Noteholders to delay the action in order to first obtain instructions from the Noteholders.
19.3.3The Trustee shall not be liable for any delay (or any related consequences) in crediting an account with an amount required pursuant to the Finance Documents to be paid by the Trustee to the Noteholders, provided that the Trustee has taken all necessary steps as soon as reasonably practicable to comply with the regulations or operating procedures of any recognised clearing or settlement system used by the Trustee for that purpose.
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19.3.4The Trustee shall have no liability to the Noteholders for damage caused by the Trustee acting in accordance with instructions of the Noteholders given in accordance with Condition 14 (Decisions by Noteholders) or a demand by Noteholders given pursuant to Condition 12.1.
19.3.5Any liability towards the Issuer which is incurred by the Trustee in acting under, or in relation to, the Finance Documents shall not be subject to set-off against the obligations of the Issuer to the Noteholders under the Finance Documents.
19.4Replacement of the Trustee
19.4.1Subject to Condition 19.4.6, the Trustee may resign by giving notice to the Issuer and the Noteholders, in which case the Noteholders shall appoint a successor Trustee at a Noteholders' Meeting convened by the retiring Trustee or by way of Written Procedure initiated by the retiring Trustee.
19.4.2Subject to Condition 19.4.6, if the Trustee is Insolvent, the Trustee shall be deemed to resign as Trustee and the Issuer shall within 10 Business Days appoint a successor Trustee which shall be an independent financial institution or other reputable company which regularly acts as trustee under debt issuances.
19.4.3A Noteholder (or Noteholders) representing at least 10 per cent. of the Adjusted Nominal Amount may, by notice to the Issuer (such notice may only be validly given by a person who is a Noteholder on the Business Day immediately following the day on which the notice is received by the Issuer), require that a Noteholders' Meeting is held for the purpose of dismissing the Trustee and appointing a new Trustee. The Issuer may, at a Noteholders' Meeting convened by it or by way of Written Procedure initiated by it, propose to the Noteholders that the Trustee be dismissed and a new Trustee appointed.
19.4.4If the Noteholders have not appointed a successor Trustee within 90 days after (i) the earlier of the notice of resignation was given or the resignation otherwise took place or (ii) the Trustee was dismissed through a decision by the Noteholders, the Issuer shall appoint a successor Trustee which shall be an independent financial institution or other reputable company which regularly acts as trustee under debt issuances.
19.4.5The retiring Trustee shall, at its own cost, make available to the successor Trustee such documents and records and provide such assistance as the successor Trustee may reasonably request for the purposes of performing its functions as Trustee under the Finance Documents.
19.4.6The Trustee's resignation or dismissal shall only take effect upon the appointment of a successor Trustee and acceptance by such successor Trustee of such appointment and the execution of all necessary documentation to effectively substitute the retiring Trustee.
19.4.7Upon the appointment of a successor, the retiring Trustee shall be discharged from any further obligation in respect of the Finance Documents but shall remain entitled to the benefit of the Finance Documents and remain liable under the Finance Documents in respect of any action which it took or failed to take whilst acting as Trustee. Its successor, the Issuer and each of the Noteholders shall have the same rights and obligations amongst themselves under the Finance Documents as they would have had if such successor had been the original Trustee.
19.4.8In the event that there is a change of the Trustee in accordance with this Condition 19.4, the Issuer shall execute such documents and take such actions as the new Trustee may
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reasonably require for the purpose of vesting in such new Trustee the rights, powers and obligation of the Trustee and releasing the retiring Trustee from its further obligations under the Finance Documents. Unless the Issuer and the new Trustee agree otherwise, the new Trustee shall be entitled to the same fees and the same indemnities as the retiring Trustee.
19.5New Trustee and Separate and Co-Trustees
19.5.1One or more persons may hold office as trustee or trustees under the Trust Deed but such trustee or trustees shall be or include a trust corporation. The power to appoint a new trustee under the Trust Deed shall be vested in the Issuer but no person shall be appointed who shall not previously have been approved by the Noteholders pursuant to Condition 14.6. Any appointment of a new trustee shall as soon as practicable thereafter be notified by the Issuer to the Noteholders in accordance with these Terms and Conditions.
19.5.2Notwithstanding the above, the Trustee may appoint any person established or resident in any jurisdiction (whether a trust corporation or not) to act either as a separate trustee or as a co-trustee jointly with the Trustee in certain circumstances.
20.APPOINTMENT AND REPLACEMENT OF THE ISSUING AGENT
20.1The Issuer has appointed the Issuing Agent to manage certain specified tasks under these Terms and Conditions and in accordance with the legislation, rules and regulations applicable to and/or issued by the CSD and relating to the Notes.
20.2The Issuing Agent may retire from its assignment or be dismissed by the Issuer, provided that the Issuer has approved that a commercial bank or securities institution approved by the CSD accedes as a new Issuing Agent at the same time as the old Issuing Agent retires or is dismissed.
21.APPOINTMENT AND REPLACEMENT OF THE CSD
21.1The Issuer has appointed the CSD to manage certain tasks under these Terms and Conditions and in accordance with the CSD Regulations and the other regulations applicable to the Notes.
21.2The CSD may retire from its assignment or be dismissed by the Issuer, provided that the Issuer has effectively appointed a replacement CSD that accedes as CSD at the same time as the old CSD retires or is dismissed and provided also that the replacement does not have a negative effect on any Noteholder or the listing of the Notes on a Regulated Market. The replacing CSD must be authorised to professionally conduct clearing operations pursuant to the Securities Markets Act (lag (2007:528) om värdepappersmarknaden) and be authorised as a central securities depository in accordance with the Financial Instruments Account Act (lag (1998:1479) om kontoföring av finansiella instrument).
22.NO DIRECT ACTIONS BY NOTEHOLDERS
No Noteholder shall itself be entitled to proceed directly against the Issuer unless the Trustee, having become bound to so proceed, fails to do so within a reasonable time and such failure is continuing. Further, a Noteholder may not take any steps whatsoever to enforce or recover any amount due or owing to it pursuant to the Trust Deed and/or the Notes, or to initiate, support or procure the winding-up, dissolution, liquidation, company reorganisation (företagsrekonstruktion) or bankruptcy (konkurs) (or its equivalent in any other jurisdiction) of the Issuer in relation to any of the obligations and liabilities of the
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Issuer under the Trust Deed and/or the Notes, unless the Trustee, having become bound to take such action, fails to do so within a reasonable time and such failure is continuing.
23.PRESCRIPTION
The right to receive repayment of the principal of the Notes shall become prescribed 10 years from the Redemption Date. The right to receive payment of interest (excluding any capitalised interest) shall be prescribed and become void five years from the relevant due date for payment. The Issuer is entitled to any funds set aside for payments in respect of which the Noteholders' right to receive payment has been prescribed.
24.NOTICES AND PRESS RELEASES
24.1Notices
24.1.1Any notice or other communication to be made under or in connection with the Finance Documents:
(a) if to the Trustee, shall be given at Sveavägen 9, 111 57 Stockholm;
(b)if to the Issuer, shall be given at the address specified on its website www.millicom.com on the Business Day prior to dispatch; and
(c)if to the Noteholders, shall be given at their addresses as registered with the CSD, on the Record Date prior to dispatch, and by either courier delivery or letter for all Noteholders. A notice or other communication to the Noteholders shall also be published on the websites of the Issuer and the Trustee.
24.1.2Any notice or other communication made by one person to another under or in connection with the Finance Documents shall be sent by way of courier, personal delivery or letter, or, if between the Issuer and the Trustee, by email, and will only be effective, in case of courier or personal delivery, when it has been left at the address specified in Condition 24.1.1, in case of letter, three Business Days after being deposited postage prepaid in an envelope addressed to the address specified in Condition 24.1.1, or, in case of email, when received in readable form by the email recipient.
24.1.3Any notice which shall be provided to the Noteholders in physical form pursuant to these Terms and Conditions may, at the discretion of the Trustee, be limited to:
(a)a cover letter, which shall include:
(i)all information needed in order for Noteholders to exercise their rights under the Finance Documents;
(ii)details of where Noteholders can retrieve additional information;
(iii)contact details to the Trustee; and
(iv)an instruction to contact the Trustee should any Noteholder wish to receive the additional information by regular mail; and
(b)copies of any document needed in order for Noteholders to exercise their rights under the Finance Documents.
24.1.4Any notice pursuant to the Finance Documents shall be in English.
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24.1.5Failure to send a notice or other communication to a Noteholder or any defect in it shall not affect its sufficiency with respect to other Noteholders.
24.2Press releases
24.2.1Any notice that the Issuer or the Trustee shall send to the Noteholders pursuant to Conditions 9.3 (Voluntary total redemption (Call option)), 9.4 (Early redemption due to illegality), 9.5 (Repurchase with Excess Proceeds), 10.1.2, 12.4, 14.15, 15.1, 16.1, 17.3 and 18.5 shall also be published by way of press release by the Issuer or the Trustee, as applicable.
24.2.2In addition to Condition 24.2.1, if any information relating to the Notes or the Issuer contained in a notice which the Trustee may send to the Noteholders under these Terms and Conditions has not already been made public by way of a press release, the Trustee shall before it sends such information to the Noteholders give the Issuer the opportunity to issue a press release containing such information. If the Issuer does not promptly issue a press release and the Trustee considers it necessary to issue a press release containing such information before it can lawfully send a notice containing such information to the Noteholders, the Trustee shall be entitled to issue such press release.
25.FORCE MAJEURE AND LIMITATION OF LIABILITY
25.1Neither the Trustee nor the Issuing Agent shall be held responsible for any damage arising out of any legal enactment, or any measure taken by a public authority, or war, strike, lockout, boycott, blockade, natural disaster, insurrection, civil commotion, terrorism or any other similar circumstance (a "Force Majeure Event"). The reservation in respect of strikes, lockouts, boycotts and blockades applies even if the Trustee or the Issuing Agent itself takes such measures, or is subject to such measures.
25.2The Issuing Agent shall have no liability to the Noteholders if it has observed reasonable care. The Issuing Agent shall never be responsible for indirect damage with exception of gross negligence and wilful misconduct.
25.3Should a Force Majeure Event arise which prevents the Trustee or the Issuing Agent from taking any action required to comply with these Terms and Conditions, such action may be postponed until the obstacle has been removed.
25.4The provisions in this Condition 25 apply unless they are inconsistent with the provisions of the Financial Instruments Accounts Act which provisions shall take precedence.
26.CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
26.1No person shall have any right to enforce any term or condition of the Notes under the Contracts (Rights of Third Parties) Act 1999 except and to the extent, if any, that the Notes expressly provide for such Act to apply to any of their terms. This does not affect any right or remedy of a third party which exists or is available apart from that Act.
26.2For the avoidance of doubt, the Issuing Agent is intended to have the rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the terms of Condition 4 (Condition Precedent)
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27.GOVERNING LAW AND JURISDICTION
27.1The Trust Deed and the Notes, and any non-contractual obligations arising out of or in connection therewith, shall be governed by and construed in accordance with English law. For the avoidance of doubt, Articles 470-1 to 470-19 of the Luxembourg law dated 10 August 1915 as amended are excluded.
27.2The Issuer has in the Trust Deed agreed for the benefit of the Trustee and the Noteholders that the English courts shall have exclusive jurisdiction in relation to all disputes arising out of or in connection with the Trust Deed or the Notes (including claims for set-off and counterclaims), including, without limitation, disputes arising out of or in connection with: (i) the creation, validity, effect, interpretation, performance or non-performance of, or the legal relationships established by the Trust Deed and the Notes; and (ii) any non-contractual obligation arising out of or in connection with the Trust Deed and the Notes and accordingly submits to the exclusive jurisdiction of the English courts. For such purposes each of the Issuer and the Trustee irrevocably submits to the jurisdiction of the English courts and waives any objection to the exercise of such jurisdiction.
27.3Notwithstanding that, under the Financial Instruments Accounts Act or the operating procedures, rules and regulations of the CSD (together, the "Swedish Remedies"), holders of the Notes may have remedies against the Issuer for non-payment or non-performance under the Trust Deed and the Notes, a Noteholder must first exhaust all available remedies in the courts of England for non-payment or non-performance before any proceedings may be brought against the Issuer in Sweden in respect of the Swedish Remedies. Accordingly, a Noteholder may not therefore take concurrent proceedings in Sweden.
27.4The Issuer:
(a)waives any objection to the choice of or submission to the English courts on the grounds of inconvenient forum or otherwise as regards proceedings in connection with the Trust Deed and the Notes or any non-contractual obligations arising out of or in connection with the Trust Deed and the Notes; and
(b)agrees that a judgment, declaration or order (whether interim or final) of an English court in connection with the Trust Deed and the Notes or any non-contractual obligations arising out of or in connection with the Trust Deed and the Notes is conclusive and binding on it and may be enforced against it in the courts of any other jurisdiction.
27.5The Issuer shall appoint an agent in England to which service of process and any other documents in proceedings in England in connection with the Trust Deed and the Notes, including these Terms and Conditions, may be made and any such documents may be served. Any claim form, judgment or other notice of legal process shall be sufficiently served on the Issuer if delivered to it (or, if appointed, such agent) at its address in England for the time being. The Issuer undertakes with the Trustee not to revoke the authority of any such agent without the prior written consent of the Trustee.
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AMENDMENT No 1
to CUSTODIAN AGREEMENT dated as of 16 December, 2011 between MILLICOM INTERNATIONAL CELLULAR S.A., a public limited liability company incorporated under the laws of Grand-Duchy of Luxembourg (the “Company”) and SKANDINAVISKA ENSKILDA BANKEN AB (publ), a banking association organized under the laws of Sweden and any successor as custodian hereunder (the “Custodian”) (the “Amendment”).
Capitalised terms unless otherwise defined in this Amendment will have the meaning as set out in the Custodian Agreement.
WITNESSETH:
WHEREAS, the Company and the Custodian wish to formalise some changes to the Custodian Agreement in relation to the parties’ obligations in respect of the annual general meeting (AGM) to be held on June 25th 2020, or any other date announced by the Company, and all subsequent shareholders meetings of the Company until this Amendment is terminated, noting that this new procedure was applied by the parties also in relation to the AGM 2019;
WHEREAS, the Company have agreed with Euroclear Sweden AB (“Euroclear”) that Euroclear will perform certain duties involving proxy management in relation to shareholders’ meetings to be held in the Company, as the Custodian does not provide online voting solutions at the time of this Amendment No. 1;
WHEREAS, the parties’ obligations in respect of a shareholders meeting in the Company are regulated in Section 4.07 of the Custodian Agreement and in section 8 of the General Terms and Conditions;
WHEREAS, the Company and the Custodian agreed to amend the Custodian Agreement with respect to the AGM 2020 and to any other shareholders’ meeting to be held in the Company on the terms as set out in this Amendment;
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NOW THEREFORE, the parties agrees as follows:
A) Notwithstanding what is stated in Section 4.07 of the Custodian Agreement (Voting of Deposited Securities) and without amending the wording therein, the parties have agreed that the procedures and duties as set out in Exhibit C to this Amendment will be applied in connection with the AGM 2020 and with respect to any subsequent shareholders’ meetings in the Company.
B) The parties agree that the Custodian will not assume any responsibility or liability whatsoever under the Custodian Agreement or the General Terms and Conditions for the activities to be performed by Euroclear according to Exhibit C.
C) The Company agrees and undertakes to indemnify and hold harmless the Custodian with respect to any amount, cost or damage which the Custodian may be liable for to a Holder under the General Terms and Conditions as a result of any act or service for a shareholders’ meeting performed or omitted to be performed by Euroclear pursuant to Exhibit C.
D) The Company agrees to keep SEB informed of the planning process of the shareholder meetings.
E) This Amendment shall take effect as of 1 June 2020 and remain in effect in relation to the procedures relating to all shareholders meetings of the Company, until this Amendment is terminated by any of the parties.
F) Except for Section 4.07 as follows from the above, all terms and conditions of the Custodian Agreement and the General Terms and Conditions, shall remain in full force.
G) This Amendment may be terminated by either party by giving the other party a written notice of termination not less than ten calendar days in advance. The Custodian may also terminate this Amendment immediately if the agreement
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between Euroclear and the Company setting out the duties and activities to be performed by Euroclear pursuant to Exhibit C is terminated.
H) 7.05 (Governing Law) of the Custodian Agreement shall apply also in relation to this Amendment.
IN WITNESS WHEREOF MILLICOM INTERNATIONAL CELLULAR S.A. and SKANDINAVISKA ENSKILDA BANKEN AB (publ) have duly executed this Amendment as of June 11, 2020 / 9:18 PM CEST.
| MILLICOM INTERNATIONAL CELLULAR S.A. | ||||||||
| By: | /s/ Patrick Gill | |||||||
| Name: | Patrick Gill | |||||||
| Title: | Company Secretary | |||||||
| MILLICOM INTERNATIONAL CELLULAR S.A. | ||||||||
| By: | /s/ Bruno Nieuwland | |||||||
| Name: | Bruno Nieuwland | |||||||
| Title: | Chief Administrative officer | |||||||
4
| SKANDTNAVISKA ENSKILDA BANKEN AB (publ) | |||||||||||||||||||||||
| By: | /s/ Björn Welander | By: | /s/ Fredrick Martinson | ||||||||||||||||||||
| Name: | Björn Welander | Name: | Fredrick Martinson | ||||||||||||||||||||
| Title: | Head of Securites & Wealth Operations | Title: | |||||||||||||||||||||
Exhibit C to Amendment 1 to the Custodian Agreement
Procedure regarding activities and responsibilities for the Company, the Custodian and Euroclear in relation to the AGM 2020. In respect of extraordinary shareholders meetings in the Company, the procedures of this Exhibit C shall apply to the extent applicable.
| Responsible | Activity | ||||
| Millicom | The Company shall inform SEB no later than (2) months in advance of any annual shareholders meeting and as regards any extraordinary shareholders meetings as soon as practically possible and prudent. | ||||
| Millicom /SEB | Millicom informs SEB the record date (“AGM Record Date”) and agree on the time plan activities. | ||||
| Millicom | Millicom send the initial draft of the notification form of attendance and the SDR proxy form to Euroclear and SEB for review. | ||||
| Euroclear /SEB | Euroclear /SEB review the notification form of attendance and the proxy form. | ||||
| Millicom | Millicom sends draft of the convening notice of the AGM, short announcement of the AGM convening notice to SEB and Euroclear for review. | ||||
| Millicom | Millicom approval of the notification form of attendance and the proxy form. | ||||
| SEB | SEB reviews the short announcement of the AGM. | ||||
| SEB | SEB request Euroclear to open up the procedure for temporarily voting registration. SEB instructs Euroclear to open up a procedure in order for nominees to be able to temporarily re-register SDRs in the name of the actual Holder (beneficial owner) prior to the AGM Record Date.1 | ||||
| SEB | SEB orders a “bolagsstämmoakitebok” from Euroclear Sweden AB. | ||||
| SEB | SEB sends an information letter via mail to Euroclear Sweden AB, which explains the procedure for this year’s AGM in Millicom. This mail will be sent by Euroclear Sweden AB to Swedish custodians, institutions and brokers/dealers as nominees in the VPC system. They will in their turn have the possibility to inform their clients on how to proceed in order to attend and vote at the AGM. | ||||
| Millicom | Millicom publishes the notification form of attendance at the AGM and the SDR holder proxy form on Millicom’s website (www.M illicom.com). | ||||
| Millicom | Millicom sends the short Swedish announcement of the AGM convening notice to SvD for publication, and post a press release of the convening notice in accordance with the General Terms and Conditions for the SDRs together with the convening notice in full on Millicom’s website according to Luxembourg law. (www.Millicom.com) | ||||
| Millicom | Millicom sends Euroclear final version of Invitation letter/proxy and notification form for distribution. | ||||
| Euroclear | Euroclear receives final version of Invitation Letter/proxy and notification form. | ||||
| Euroclear | Euroclear sends to SDR Holders the Invitation Letter together with the notification form of attendance and the proxy form in order to vote. In the information are codes in order for the SDR Holder to vote electronically. | ||||
| Euroclear | Euroclear sends a reminder of the information mail via Euroclear. | ||||
| Euroclear | Euroclear gather the received notification forms of attendance and the proxy forms. | ||||
1 Under paragraph 4.3 Assignment to Euroclear Sweden. The issuer undertakes to carry out all measures and otherwise fulfill the prerequisites which is required for Euroclear Sweden to be able to fulfill its obligations under this Agreement. The issuer also undertakes to notify Euroclear Sweden in good time of each assignments which the Issuer intends to hand over to Euroclear Sweden and to consult with Euroclear Sweden on the scheduling of assignments.
2
| Euroclear | Euroclear tabulates the received notification forms of attendance and the proxy forms. | ||||
| Euroclear | Euroclear reconciles the received notification forms of attendance and the proxy forms with the SDR holders list at per the AGM Record Date. Only Holders registered as owners of SDRs on the AGM Record Date may participate / vote at the AGM. | ||||
| SEB | SEB issues proxies authorising all the SDR Holders registered on the AGM Record Date to represent SEB in its capacity as shareholder at the AGM and send it to the Company. | ||||
| Euroclear/SEB | Euroclear or SEB does not have the right to accept notifications to attend the meeting that was not received before or on the record date. | ||||
| Euroclear | Euroclear reports the preliminary results of the received notification forms of attendance and the proxy forms to Millicom and SEB. | ||||
| Euroclear | Euroclear closes the voting period – Deadline to submit notification forms and proxy forms. | ||||
| Euroclear | Euroclear reports the final results of the received notification forms of attendance and the proxy forms to Millicom and SEB. | ||||
| Euroclear | Euroclear sends the proxy and notifications forms signed by the SDR Holders to Millicom, ensuring the proxy and notifications forms are received by Millicom in good time before the shareholder meeting. | ||||
| Millicom/Euroclear | Millicom and Euroclear consolidate the final results of received notification forms and proxy forms from SDR Holders and shareholders. | ||||
| Millicom International Cellular S.A. | ||||||||
| /s/ Patrick Gill | /s/ Bruno Nieuwland | |||||||
| Patrick Gill | Bruno Nieuwland | |||||||
| Company Secretary | Chief Administrative Officer | |||||||
AMENDMENT No. 2
to the Custodian Agreement, dated as of 16 December 2011, amended by Amendment No. 1 dated as of 11 June 2020, between Millicom International Cellular S.A., a public limited liability company incorporated under the laws of Grand Duchy of Luxembourg (the “Company”) and Skandinaviska Enskilda Banken AB (publ), a banking association organized under the laws of Sweden and any successor as custodian hereunder (the “Custodian”) (the “Custodian Agreement”), and to the General Terms and Conditions for Swedish Depository Receipts Regarding Shares in Millicom International Cellular S.A., dated as of January 2012 (the “General Terms and Conditions”) (“Amendment No. 2”).
Capitalised terms unless otherwise defined in this Amendment No. 2 will have the meaning ascribed to them in the Custodian Agreement or the General Terms and Conditions, as applicable.
WITNESSETH:
WHEREAS, American Stock Transfer & Trust Company, LLC, as transfer agent with respect to the common shares listed on the Nasdaq Global Select Market in the United States, has been replaced by Broadridge Corporate Issuer Solutions, Inc.;
WHEREAS, the name of the Swedish stock exchange has changed to “Nasdaq Stockholm AB,” and the name of the Swedish Financial Instruments Account Act has changed to the “Swedish Central Securities Depositories and Financial Instruments (Accounts) Act”; and
WHEREAS, the registered address of the Company has changed.
NOW THEREFORE, the parties agree as follows:
1.CUSTODIAN AGREEMENT
The following amendments shall be made to the Custodian Agreement:
(i)SECTION 1.01 is hereby deleted in its entirety and replaced by the following wording;
“SECTION 1.01. Broadridge. The term “Broadridge” shall mean Broadridge Corporate Issuer Solutions, Inc.”
For the avoidance of doubt, all references in the Custodian Agreement to the term “AST” shall be deemed to mean “Broadridge.”
(ii)SECTION 1.54 is hereby deleted in its entirety and replaced by the following wording;
“SECTION 1.05. The Company. The term “Company” shall mean Millicom International Cellular S.A., a public limited liability company (société anonyme) incorporated under the
laws of the Grand Duchy of Luxembourg, with its registered office at 2, rue du Fort Bourbon, L-1249 Luxembourg, Grand Duchy of Luxembourg, registered with the Luxembourg Register of Commerce and Companies under number B 40.630.”
For the avoidance of doubt, all references in the Custodian Agreement to the Company’s registered office at “15, rue Léon Laval, L-3372 Leudelange” shall be deemed to mean “2, rue du Fort Bourbon, L-1249 Luxembourg.”
(iii)SECTION 1.16 is hereby deleted in its entirety and replaced by the following wording;
“SECTION 1.16. Registrar. The term “Registrar” shall mean, as of the date hereof, Skandinaviska Enskilda Banken AB (publ), Luxembourg Branch, in its capacity as keeper of the share register of the Company, and any other firm or corporation that may be appointed by the Company and approved by the Custodian and which is established in Luxembourg and duly authorized to act as share registrar in accordance with Luxembourg law and practices.”
For the avoidance of doubt all references in the Custodian Agreement to “Registrar” shall be deemed to mean “Skandinaviska Enskilda Banken AB (publ), Luxembourg Branch.”
(iv)SECTION 1.19 is hereby deleted in its entirety and replaced by the following wording;
“SECTION 1.19. Stockholmsbörsen. The term “Stockholmsbörsen” shall mean Nasdaq Stockholm AB.”
For the avoidance of doubt, all references in the Custodian Agreement to “Stockholmsbörsen” shall be deemed to mean “Nasdaq Stockholm AB.”
(v)SECTION 1.20 is hereby deleted in its entirety and replaced by the following wording;
“SECTION 1.20. Swedish Central Securities Depositories and Financial Instruments (Accounts) Act. The term “Swedish Central Securities Depositories and Financial Instruments (Accounts) Act” means Lag (1998:1479) om värdepapperscentraler och kontoföring av finansiella instrument as amended from time to time, or any successor Act governing the registration of securities in Sweden.”
For the avoidance of doubt, all references in the Custodian Agreement to “Swedish Financial Instruments Accounts Act” shall be deemed to mean “Swedish Central Securities Depositories and Financial Instruments (Accounts) Act.”
2.GENERAL TERMS AND CONDITIONS
The following amendments shall be made to the General Terms and Conditions:
(i)SECTION 1.1 is hereby deleted in its entirety and replaced by the following wording;
“1.1 Shares can be deposited on account of the depository receipt holder with SEB, or with a custodian appointed by SEB on account of SEB, in which case SEB or the custodian appointed by SEB shall be registered as owners of the Shares in (i) the Company’s share register located in Luxembourg either held by the Company or by another Luxembourg institution duly licensed to act as a registrar in accordance with Luxembourg law and practices that are appointed by the Company and approved by SEB with an assignment to maintain a register of the Company’s owners or, (ii) the register in relation to the Shares kept by Broadridge Corporate Issuer Solutions, Inc. (“Broadridge”) in the United States. Depository receipt holder means an owner of a depository receipt or such an owner’s nominee (hereinafter referred to as “SDR Holder”).”
For the avoidance of doubt, all references in the General Terms and Conditions to “AST” shall be deemed to mean “Broadridge.”
(ii) SECTION 1.2 is hereby deleted in its entirety and replaced by the following wording;
“1.2 The SDRs shall be registered in a book-entry verification register maintained by Euroclear (hereinafter referred to as the “Euroclear Register”) in accordance with the Swedish Central Securities Depositories and Financial Instruments (Accounts) Act (Sw. Lag (1998:1479) om värdepapperscentraler och kontoföring av finansiella instrument). No certificates representing the SDRs will be issued. SEB will not accept deposit of fractions of shares.”
For the avoidance of doubt, all references in the General Terms and Conditions to “Swedish Financial Instruments Accounts Act” shall be deemed to mean “Swedish Central Securities Depositories and Financial Instruments (Accounts) Act.”
(iii) Change of Name. “NASDAQ OMX Stockholm” will in the entire General Terms and Conditions be changed to “Nasdaq Stockholm AB.”
For the avoidance of doubt, all references in the General Terms and Conditions to “NASDAQ OMX Stockholm” shall be deemed to mean “Nasdaq Stockholm AB.”
3.NOTICE
The SDR Holders shall be notified of the amendments by post, in accordance with the routines applied by Euroclear and Sections 13 and 14 of the General Terms and Conditions, and the updated General Terms and Conditions shall be posted to the webpage of the Company.
4.EFFECTIVE DATE
The amendments, both in relation to the Custodian Agreement and the General Terms and Conditions, shall take effect as of 28 February 2022.
5.REMAINDER OF AGREEMENT
All other terms and conditions of the Custodian Agreement, as amended, and the General Terms and Conditions shall remain in full force.
IN WITNESS WHEREOF, MILLICOM INTERNATIONAL CELLULAR S.A. and SKANDINAVISKA ENSKILDA BANKEN AB (publ) have duly executed this Amendment No. 2 to the CUSTODIAN AGREEMENT and the GENERAL TERMS AND CONDITIONS on this day of 28 February 2022.
| MILLICOM INTERNATIONAL CELLULAR S.A. | ||||||||
| By: | /s/ Patrick Gill | |||||||
| Name: Patrick Gill | ||||||||
| Title: Company Secretary | ||||||||
| MILLICOM INTERNATIONAL CELLULAR S.A. | ||||||||
| By: | /s/ Bruno Nieuwland | |||||||
| Name: Bruno Nieuwland | ||||||||
| Title: Director Administration | ||||||||
| SKANDINAVISKA ENSKILDA BANKEN AB (publ) | |||||
| By: | /s/ Olof Brodin | ||||
| Name: Olof Brodin | |||||
| Title: Authorized Signatory | |||||
| SKANDINAVISKA ENSKILDA BANKEN AB (publ) | ||||||||
| By: | /s/ Tomas Engel | |||||||
| Name: Tomas Engel | ||||||||
| Title: Authorized Signatory | ||||||||
[Signature Page to Amendment No. 2]
This document is, in all essential respects, a translation of the Swedish General Terms and Conditions of Swedish Depository Receipts regarding Shares in Millicom International Cellular S.A., deposited with Skandinaviska Enskilda Banken AB (publ) (Allmänna villkor för Svenska Depåbevis avseende aktier i Millicom International Cellular S.A.). In the event of any discrepancy between this translation and the Swedish original, the Swedish version shall prevail. | ||
SKANDINAVISKA ENSKILDA BANKEN AB (publ)’s
GENERAL TERMS AND CONDITIONS FOR SWEDISH DEPOSITORY RECEIPTS
GENERAL TERMS AND CONDITIONS FOR SWEDISH DEPOSITORY RECEIPTS
regarding Shares in
Millicom International Cellular S.A.
January 2012
Millicom International Cellular S.A (hereinafter referred to as the “Company”) has entered into a custodian agreement with Skandinaviska Enskilda Banken AB (publ) (hereinafter referred to as “SEB”) whereby SEB, on behalf of shareholders, will hold shares issued from time to time by the Company (hereinafter referred to as the “Shares”) in a depository account and issue one Swedish depository receipt (hereinafter referred to as “SDR”) for each Share deposited in accordance with these general terms and conditions (hereinafter referred to as the “General Terms and Conditions). The SDRs are registered with Euroclear Sweden AB (hereinafter referred to as “Euroclear”) and are listed on the NASDAQ OMX Stockholm AB (hereinafter referred to as “NASDAQ OMX Stockholm”).
1 Deposit of Shares
1.1 Shares can be deposited on account of the depository receipt holder with SEB, or with a custodian appointed by SEB on account of SEB, in which case SEB or the custodian appointed by SEB shall be registered as owners of the Shares in ( the Company’s share register located in Luxembourg either held by the Company or by another Luxembourg institution duly licensed to act as a registrar in accordance with Luxembourg law and practices that are appointed by the Company and approved by SEB with an assignment to maintain a register of the Company’s owners or, ( the register in relation to the Shares kept by the American Stock Transfer & Trust Company, LLC (“AST”) in the United States. Depository receipt holder means an owner of a depository receipt or such an owner’s nominee (hereinafter referred to as “SDR Holder”).
1.2 The SDRs shall be registered in a book-entry verification register maintained by Euroclear (hereinafter referred to as the “Euroclear Register”) in accordance with the Swedish Financial Instruments Accounts Act (Sw. lagen (SFS 1998:1479) om
kontoföring av finansiella instrument). No certificates representing the SDRs will be issued. SEB will not accept deposit of fractions of Shares.
2 Deposit and withdrawal of Shares
2.1 On the condition that no impediment exists according to the laws or regulatory decrees of Sweden, Luxembourg or any other country, SEB shall upon request by the SDR Holder without delay arrange for the SDR Holder to become registered directly as owner in either the Company’s share register as set out in section 1.1(i) above, or the register maintained by AST as set out in section 1.1(ii) above, for the number of Shares held equivalent to the SDR Holders’ holding of SDRs. Registration in the share register of the Company as set out in section 1.1(i) above, or the register maintained by AST as set out in section 1.1(ii) above, or other equivalent register of the Company’s shareholders, shall occur as soon as the SDRs in question have been deregistered from the Euroclear Register maintained by Euroclear.
2.2 On the condition that no impediment exists according to the laws or regulatory decrees of Sweden, Luxembourg or any other country, and provided that payment has been made of all taxes and fees in connection with the deposit of Shares, Shares may be transferred to SEB for safekeeping according to the General Terms and Conditions together with the required information to SEB with respect to name, address and account with Euroclear (the “VPC Account”) (in which the SDRs are to be registered) together with other information and documentation required under Swedish, Luxembourg or any other applicable legislation.
2.3 SEB has the right to receive compensation in advance from the SDR Holder for fees and expenses that arise in connection with withdrawal and deposit of Shares according to sections 2.1 and 2.2 above in accordance with SEB’s applicable price list for such transactions.
2.4 Deposit and withdrawal of Shares pursuant to this section 2 is not allowed during such period decided by SEB in consultation with the Company as informed to the SDR Holders.
3 Transfer and pledging of Shares, etc.
Shares on deposit cannot be transferred or pledged in any other way than by transfer and pledging of the SDRs. Transfer and pledging of SDRs shall take place in accordance with applicable Swedish legislation. The authority to transfer or pledge SDRs, as well as deciding who shall be deemed to be the rightful owner or pledgee of SDRs, shall be determined according to the rules in the Financial Instruments Accounts Act.
4 Rights of SDR Holders
SEB and the Company shall establish arrangements, to the extent appropriate and practically possible and in accordance with applicable laws, such that the SDR Holders shall have the opportunity to exercise such rights with respect to the Company as would be exercisable by such SDR Holders if they had owned Shares directly and not SDRs.
5 Record Date
SEB shall in consultation with the Company and Euroclear determine a date (“Record Date”), in accordance with applicable laws, to be applied by SEB for determining which SDR Holders relative to SEB are entitled to:
(i)receive cash dividends, rights or other property;
(ii)participate in the proceedings of and to vote at general meetings of shareholders;
(iii)receive Shares in connection with stock dividends;
(iv)subscribe for Shares, warrants, convertible debentures, debentures or other rights or securities in connection with offerings; and
(v)exercise the rights that normally accrue to the benefit of the shareholders in the Company.
It is the Company’s and SEB’s intention that the Record Date, to the extent appropriate, practically possible and in accordance with applicable laws, shall correspond to the record date that the Company applies in relation to holders of Shares in the Company.
6 Dividends
6.1 Any dividends received by SEB as a shareholder in the Company shall be passed on by SEB in accordance with the provisions of section 6 hereof.
6.2 Dividend payments shall be made to the SDR Holder who on the Record Date is entered in the Euroclear Register as holder of SDRs or holder of rights. Dividends are payable in Swedish kronor (SEK).
6.3 SEB shall in consultation with the Company set the date for payment of dividend to the SDR Holders (the “Payment Date”). If SEB has received a dividend from the Company in a currency other than SEK, SEB shall arrange for a conversion of the dividend received from the Company to SEK. Such conversion shall be effected at a market rate of exchange, no earlier than ten and no later than five banking days before the Payment Date, by entry into a forward contract with a due date on the Payment Date, or the day when funds are made available to Euroclear. The applicable rate of exchange shall be the rate of exchange obtained in such forward contract.
6.4 Payment of dividends to SDR Holders and other holders of rights according to the Euroclear Register shall be made on the Payment Date by Euroclear and in accordance with the rules and regulations applied by Euroclear from time to time.
6.5 If dividends are paid to a recipient who is not authorised to receive dividends, SEB shall nonetheless be deemed to have fulfilled its obligations, except in the case where SEB was aware that payment of dividend was being made to a party not authorised to receive dividends, or if SEB failed to exercise reasonable care appropriate to the circumstances, or if payment cannot be claimed because the recipient was a minor or because a guardian was appointed for the recipient and such mandate includes receipt of dividends.
6.6 To the extent required under applicable laws and regulation, the Company, SEB or Euroclear shall withhold and pay to the tax authorities in Luxembourg and in Sweden any required amounts of tax in relation to dividend payments to Holders (including any Swedish preliminary tax regarding dividends, e.g. for private individuals domiciled in Sweden and estates of such individuals). In the event the Company, SEB or Euroclear or representatives or agents of the foregoing determine that dividends in cash, Shares, rights, or other property are subject to taxation or other public fees which must be withheld according to applicable laws and regulation, the Company, SEB, Euroclear or representatives or agents of any of the foregoing shall be entitled to withhold cash amounts or sell all or part of such property as is financially and practically necessary to sell in order to be able to pay such taxes and fees. The remaining proceeds, following deduction of such mandatory taxes and fees, shall be paid by SEB to the SDR Holders who are entitled thereto. SDR Holders shall be liable for deficiencies which may arise in conjunction with any sale pursuant to the above.
6.7 Payment of dividend to SDR Holders shall be made without any deduction for fees or equivalent attributable to the Company, SEB or Euroclear, but with a deduction for preliminary tax or other taxes withheld according to Swedish legislation and for any tax that may be levied according to the legal systems in Sweden, Luxembourg or any other country.
6.8 If SEB receives dividends other than in cash, SEB – after consultation with the Company – shall decide how such dividend shall be transferred to those SDR Holders entitled to receive it. This may mean that the property is sold and that the proceeds of such sale, after deduction of selling costs and any fees and taxes incurred, are paid to the SDR Holders.
6.9 If the shareholders have the right to choose dividends in cash or in any other form, and it is not practically feasible to give the SDR Holders such opportunity, SEB shall have the right to decide, on account of the SDR Holders, that such dividend shall be paid in cash.
7 Stock dividends, splits, new issues, bonus issues and other distributions
7.1 SEB, or the custodian appointed by SEB according to section 1.1 hereof, shall in the case of a stock dividend, bonus issue with distribution of Shares and split be registered as soon as possible in the Company’s share register for the new Shares received in conjunction with such action, and shall make arrangements to ensure that the SDRs received for such Shares are registered to the VPC Account belonging to the SDR Holder entitled to receive such Shares. In the event that distribution of new Shares is not feasible, section 6.8 shall apply. The corresponding registration procedures shall be undertaken in connection with a reverse split.
7.2 Any person whose name on a Record Date is entered in the Euroclear Register as SDR Holder, or holder of rights relative to the action in question, shall be deemed to be authorised to receive SDRs representing new Shares added as a result of a stock dividend, bonus issue with distribution of Shares or a split. If a recipient of SDRs was not authorised to receive the new SDRs, the provisions of section 6.5 above shall be applied wherever applicable.
7.3 If the Company decides on a new issue of Shares, issuance of debentures, convertible debentures, warrants or other rights to the shareholders, SEB shall
inform the SDR Holders thereof and of the principal terms and conditions for the new issue, the debentures, the convertible debentures, the warrants or other rights. Such information shall be enclosed together with the relevant subscription form by which the SDR Holder may instruct SEB to subscribe for Shares, warrants, debentures, convertible debentures or exercise other rights. When SEB has subscribed for and received such Shares, debentures, convertible debentures, warrants or other rights in accordance with the instructions of the SDR Holder, SEB shall, to the extent practically possible, see to it that the corresponding registration is effected to the credit of the VPC Account of the SDR Holder. Where such registration cannot be effected to the credit of the respective VPC Account of the SDR Holder, including in the event that such financial instruments or rights would not be dematerialized electronically, SEB shall see to it that the SDR Holders are ensured the right of ownership to the instrument or rights in question in another way, or are compensated in cash.
7.4 If an SDR Holder fails to instruct SEB to exercise the rights set forth in section 7.3 above, SEB has the right to sell such rights on account of the SDR Holder and pay the proceeds of such sale to the SDR Holder, less a deduction for selling costs and any fees and taxes incurred.
7.5 If the SDR Holder has the right to or receives a number of fractional rights or other rights that do not entitle the SDR Holder to receive an even number of Shares, participation in new issue of Shares, subscription for convertible debentures, warrants or other rights, SEB has the right to sell such residual fractional rights, preferential rights, etc. and pay the proceeds to the SDR Holder after deduction of selling costs and any fees and taxes incurred.
8 Participation in general meetings of shareholders
8.1 SEB and the Company shall establish arrangements such that the SDR Holders may participate in the Company’s general meetings of shareholders and vote for the Shares represented by the SDRs. The Company shall in consultation with SEB send notice for such general meeting of shareholders, in accordance with Swedish, Luxembourg and other applicable laws and by providing information for dissemination to at least two established news agencies and at least three national daily newspapers. The notice shall contain:
(i)the information included by the Company in the notice for the meeting; and
(ii)instructions as to what must be observed by each SDR Holder in order to participate in the proceedings of the general meeting of shareholders or otherwise exercise his or her voting right.
Well in advance of the general meeting of shareholders, SEB shall make arrangements so that proxies, with full power of substitution, are issued by SEB to each SDR Holder who has announced his or her intention to participate in the proceedings of the general meeting of shareholders to allow each of them to represent SEB at the general meeting of shareholder for the number of Shares represented by the SDRs held by each SDR Holder. Furthermore, SEB and the Company shall make arrangements so that proxies are available to each SDR Holder who has announced his or her intention to participate in the proceedings of the general meeting of shareholder to allow each of them to designate a third party as attorney to represent him or her at the general meeting of shareholders. Such
proxies received by SEB shall be submitted to the Company together with a list of SDR Holders to whom proxies have been issued.
8.2 SEB undertakes to not represent Shares for which SDR Holders have not notified their intention to participate or vote at such general meeting of shareholders either personally or by proxy.
9 Information to the SDR Holder
9.1 SEB shall upon direction of the Company and in the manner set forth in section 13 below provide the SDR Holders with all the information that SEB receives from the Company in SEB’s capacity of shareholder. If so requested, SEB shall always provide such information by mail to the address set forth in the Euroclear Register. The Company’s intention is to present all information in English.
9.2 The Company shall, on request from an SDR Holder send the Company’s annual report to such Holder. The Company shall also publish applicable stock market information in accordance with the requirements for listing on the NASDAQ OMX Stockholm.
10 Listing of SDRs
The SDRs are listed on the NASDAQ OMX Stockholm. If a decision is made to delist the SDRs, SEB shall, upon direction from the Company, inform the SDR Holders on the decision as soon as possible.
11 SEB’s expenses
SEB’s expenses and fees for its assignment and for Euroclear’s services shall be borne by the Company unless otherwise expressly provided in these General Terms and Conditions.
12 Change of depository
In the event the Company decides to retain another securities institution as custodian bank in lieu of SEB, SEB shall transfer all its rights and obligations towards the SDR Holders according to these General Terms and Conditions and deliver the Shares of the Company to the new depository. Change of depository shall be submitted for approval by Euroclear and may be implemented not earlier than three months after notice (regarding change of depository) is sent by mail to the SDR Holders or an announcement to that effect was published in a Swedish daily newspaper with nationwide coverage according to section 13 below. When a change of depository is made in the manner set forth in this section 12, SDR Holders shall be deemed to have agreed to a transfer of the rights and obligations between the SDR Holders and SEB to the SDR Holders and the new depository.
Should SEB have applied for or otherwise entered into restructuring, bankruptcy, liquidation or other similar procedure, the Company may in consultation with SEB accelerate the process of changing the depository provided that this is in the best interest of all SDR Holders.
13 Notices
SEB shall ensure that notices to the SDR Holders pursuant to these General Terms and Conditions, either directly or indirectly, are delivered to the SDR Holders and other holders of rights who are listed in the Euroclear Register and in accordance with the routines applied by Euroclear from time to time. As an alternative to sending the notice by mail, SEB has the right to publish notices in the form of announcements in a Swedish daily newspaper with nationwide coverage, provided that the Company has provided its prior written consent thereto. Information shall also be provided to the NASDAQ OMX Stockholm.
14 Amendments to these General Terms and Conditions
SEB reserves the right to amend these General Terms and Conditions to the extent required to make them conform to Swedish or other applicable legislation, regulatory decree or Euroclear’s and NASDAQ OMX Stockholm’s respective rules and regulations. SEB – in consultation with the Company – reserves the right to amend these General Terms and Conditions if such amendment is appropriate or necessary for other reasons, in all cases on the condition that the rights of the SDR Holders are not adversely affected in a material manner. SEB shall inform the SDR Holders about any amendments to these General Terms and Conditions in the manner set forth in section 13.
15 Information about SDR Holders (confidentiality)
15.1 SEB reserves the right to request information from Euroclear about SDR Holders from the Euroclear Register maintained by Euroclear and to provide information about the SDR Holders and their holdings of SDR to the Company.
15.2 SEB also reserves the right to provide information about SDR Holders to those who work with registration of the Shares as well as to government authorities, provided that such obligation is prescribed by Swedish or foreign law, statute or regulatory decree. SDR Holders are obliged to provide such information to SEB upon request.
15.3 SEB and the Company are entitled to submit to authorities any information regarding the SDR Holders and their holdings, in connection with restitution or repayment of paid taxes, to the extent this is necessary.
15.4 SEB and the Company are entitled to submit and publish information regarding the SDR Holders to the extent required by the NASDAQ OMX Stockholm or to the extent required under applicable laws and regulation in Sweden or any other country.
16 Limitation of liability
16.1 Unless otherwise stated in section 16.2 below, SEB is liable for damage suffered by the SDR Holder due to negligence on the part of SEB when performing the assignment according to these General Terms and Conditions. However, SEB shall not be liable for any indirect or consequential damage.
16.2 SEB shall not be liable for any loss or damage resulting from Swedish or foreign legislation, Swedish or foreign regulatory decree, act of war, strike, boycott, lockout, blockade, acts of terrorism or other similar circumstances. The reservation
regarding strike, blockade, boycott or lockout applies even if SEB itself takes such action or is the object of such action.
16.3 Where SEB or the Company is prevented from effecting payment or taking other action due to circumstances outside their control, SEB or the Company may postpone execution until the obstacle has been removed.
16.4 Neither SEB, the Company nor Euroclear shall be liable for losses or damages which the SDR Holders suffer due to the fact that a certain dividend, right, notice or other entitlement which accrues to shareholders of the Company cannot, due to technical, legal or other reasons beyond the control of the parties mentioned above, be distributed or otherwise transferred or provided to those SDR Holders registered in the Euroclear Register on a timely basis or at all.
16.5 Provided the Company has acted with normal care, the Company shall not be liable for any damages which may arise out of acts performed or omitted by SEB due to negligence of SEB.
17 Termination
17.1 SEB reserves the right to terminate the deposit of Shares according to these General Terms and Conditions, by giving notice of termination to the SDR Holders pursuant to section 13 hereof, if
(i)a decision is made to cease listing SDRs on the NASDAQ OMX Stockholm or other equivalent marketplace;
(ii)the Company decides that the Shares in the Company no longer are to be represented by SDRs according to these General Terms and Conditions;
(iii)Euroclear has terminated the agreement concerning registration of the SDRs;
(iv)the Company or a third party applies for the Company’s restructuring, bankruptcy, liquidation or other similar procedure;
(v)the Company has failed to fulfil payment of expenses and fees according to section 11 hereof for more than 30 days;
(vi)the Company materially breaches its obligations vis-à-vis SEB; or
(vii)the custodian agreement between the Company and SEB is terminated and a new depository has not been retained as provided in section 12 within six months after termination.
17.2 If termination notice pursuant to section 17.1 is given, these General Terms and Conditions continue to remain in force for a period of notice of six months from the date of making such announcement or from the date when the announcement was published in a Swedish daily newspaper with nationwide coverage, in accordance with section 13 above, where the SDRs have not previously been delisted following a decision by the NASDAQ OMX Stockholm. The announcement to the SDR Holders must include the record date when SEB will de-register all SDRs according to the Euroclear Register. SEB shall transfer the Shares in accordance with instructions by the SDR Holder or as otherwise agreed with the SDR Holder. In the
event (i) the SDR Holder has not provided a transfer instruction, (ii) it is not practically possible to transfer the Shares in accordance with the transfer instruction by the SDR Holder or (iii) an agreement has otherwise not been reached, SEB is entitled to sell the underlying Shares. The SDR Holder shall be entitled to the proceeds of the sale following deduction for reasonable costs, fees and taxes. The amount shall be paid to the cash account linked to respective VPC Account of the SDR Holder concerned or in the absence of such cash account, in the form of a payment notice. No interest shall accrue on the amount.
18 Governing law
These General Terms and Conditions and the SDRs issued by SEB shall be governed by Swedish law.
19 Disputes
Disputes concerning these General Terms and Conditions, or legal relations emanating from these General Terms and Conditions, shall be settled by a general court of law and action is to be initiated at the Stockholm District Court.
___________________________________
Exhibit 8.1
Significant Subsidiaries
| Subsidiaries of Millicom International Cellular S.A. | Country | |||||||
Latin America: | ||||||||
Telemóvil El Salvador, S.A. de C.V. | El Salvador | |||||||
Millicom Cable Costa Rica S.A. | Costa Rica | |||||||
Telefónica Celular de Bolivia S.A. | Bolivia | |||||||
Telefónica Celular del Paraguay S.A. | Paraguay | |||||||
Cable Onda S.A. | Panama | |||||||
Grupo de Comunicaciones Digitales S.A. (formerly Telefónica Móviles Panamá S.A.) | Panama | |||||||
Telefónica Celular de Nicaragua S.A. | Nicaragua | |||||||
Colombia Móvil S.A. E.S.P. | Colombia | |||||||
UNE EPM Telecomunicaciones S.A. | Colombia | |||||||
Edatel S.A. E.S.P | Colombia | |||||||
Comunicaciones Celulares S.A. | Guatemala | |||||||
Navega.com S.A. | Guatemala | |||||||
Africa: | ||||||||
MIC Tanzania Public Limited Company | Tanzania | |||||||
Zanzibar Telecommunications Limited | Tanzania | |||||||
Unallocated: | ||||||||
Millicom International Operations S.A. | Luxembourg | |||||||
Millicom International Operations B.V. | Netherlands | |||||||
Millicom LIH S.A. | Luxembourg | |||||||
MIC Latin America B.V. | Netherlands | |||||||
Millicom Africa B.V. | Netherlands | |||||||
Millicom Holding B.V. | Netherlands | |||||||
Millicom International Services LLC | USA | |||||||
Millicom Services UK Ltd | UK | |||||||
Millicom Spain S.L. | Spain | |||||||
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Mauricio Ramos, certify that:
1.I have reviewed this annual report on Form 20-F of Millicom International Cellular S.A.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4.The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting policies;
(c)Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
5.The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
| By: | /s/ Mauricio Ramos | ||||
| Name: Mauricio Ramos | |||||
| Title: President and Chief Executive Officer (Principal Executive Officer) | |||||
Date: March 1, 2022
CERTIFICATION PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT OF 2002
I, Tim Pennington, certify that:
1.I have reviewed this annual report on Form 20-F of Millicom International Cellular S.A.;
2.Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3.Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the company as of, and for, the periods presented in this report;
4.The company’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the company and have:
(a)Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the company, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
(b)Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting policies;
(c)Evaluated the effectiveness of the company’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d)Disclosed in this report any change in the company’s internal control over financial reporting that occurred during the period covered by the annual report that has materially affected, or is reasonably likely to materially affect, the company’s internal control over financial reporting; and
5.The company’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the company’s auditors and the audit committee of the company’s board of directors (or persons performing the equivalent functions):
(a)All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the company’s ability to record, process, summarize and report financial information; and
(b)Any fraud, whether or not material, that involves management or other employees who have a significant role in the company’s internal control over financial reporting.
| By: | /s/ Tim Pennington | ||||
| Name: Tim Pennington | |||||
| Title: Senior Executive Vice President, Chief Financial Officer (Principal Financial Officer) | |||||
Date: March 1, 2022 | |||||
CERTIFICATION
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002
(subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), the undersigned officer of Millicom International Cellular, S.A. a company incorporated under the laws of the Grand-Duchy of Luxembourg (the “Company”), hereby certifies, to such officer’s knowledge, that:
The Annual Report on Form 20-F for the year ended December 31, 2021 (the “Report”) of the Company fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| By: | /s/ Mauricio Ramos | ||||
| Name: Mauricio Ramos | |||||
Title: President and Chief Executive Officer | |||||
Date: March 1, 2022
CERTIFICATION
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002
(subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code)
Pursuant to section 906 of the Sarbanes-Oxley Act of 2002 (subsections (a) and (b) of section 1350, chapter 63 of title 18, United States Code), the undersigned officer of Millicom International Cellular, S.A. a company incorporated under the laws of the Grand-Duchy of Luxembourg (the “Company”), hereby certifies, to such officer’s knowledge, that:
The Annual Report on Form 20-F for the year ended December 31, 2021 (the “Report”) of the Company fully complies with the requirements of section 13(a) or 15(d) of the Securities Exchange Act of 1934 and information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
| By: | /s/ Tim Pennington | ||||
| Name: Tim Pennington | |||||
Title: Senior Executive Vice President, Chief Financial Officer | |||||
Date: March 1, 2022
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-234307) pertaining to the Long-Term Incentive Performance Share and Deferred Short-Term Incentive Share Programs of Millicom International Cellular S.A. of our reports dated March 1, 2022, with respect to the consolidated financial statements and the effectiveness of internal control over financial reporting of Millicom International Cellular S.A. included in this Annual Report (Form 20-F/A) for the year ended December 31, 2021.
/s/ Ernst & Young
Société anonyme
Cabinet de révision agréé
Luxembourg
March 1, 2022
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